City of Seattle v. Drew

• Citation: 70 Wn.2d 405,25 A.L.R.3d 827,423 P.2d 522
• Decision Date: 02 February 1967
• Docket Number: No. 38704,38704
• Court: United States State Supreme Court of Washington
• Parties: , 25 A.L.R.3d 827 The CITY OF SEATTLE, Appellant, v. James DREW, Respondent.

Page 405

70 Wn.2d 405

423 P.2d 522, 25 A.L.R.3d 827

The CITY OF SEATTLE, Appellant, v. James DREW, Respondent.

No. 38704.

Supreme Court of Washington, En Banc.

Feb. 2, 1967.

A. L. Newbould, Corp. Counsel, Denny E. Anderson, Asst. Corp. Counsel, Seattle, for appellant.

Sullivan, Burton & Meade, Philip L. Burton, Charles E. Ehlert, Michael H. Rosen, Seattle, for respondent.

WEAVER, Judge.

The alpha and omega of this case is the constitutionality of a Seattle ordinance which makes it a crime for any person loitering abroad, or abroad under suspicious circumstances, to fail to give a satisfactory account of himself upon the demand of any police officer.

The ordinance (Seattle Code § 12.11.290) provides that:

It shall be unlawful for any person wandering or loitering abroad, or abroad under other suspicious circumstances, from one-half hour after sunset to one-half hour before sunrise, to fail to give a satisfactory account of himself upon the demand of any police officer.

The alleged malfeasance consists of two elements which must exist before the accused is subject to sanctions:

(1) He must be 'wandering or loitering abroad' or be 'abroad under other suspicious circumstances' at night, as declared unlawful in the ordinance; and (2) He must 'fail to give a satisfactory account of himself upon the demand of any police officer.'

Defendant was charged under the ordinance ¹ in the Seattle Municipal Court. He appealed his conviction ² to the King County Superior Court. The trial judge, without hearing evidence, ³ held the ordinance unconstitutional. The judgment of dismissal states:

The Court * * * is of the opinion that the phrases 'under suspicious circumstances' and 'satisfactory account' are without sufficiently accepted meaning so as to constitute a standard against which conduct of a person accused can be compared or weighed, in making a judicial determination. That, therefore, Seattle Ordinance * * * known as Seattle City Code 12.11.290, violates Article I, Sections 3, 7, and 9 of the Washington State Constitution and the Fourteenth Amendment to the United States Constitution.

The City of Seattle appeals.

We begin our analysis of the questions presented mindful of the fact that when the constitutionality of an ordinance is questioned, it will be presumed constitutional. If it is reasonably capable of a constitutional construction, it must be given that construction. Martin v. Aleinikoff, 63 Wash.2d 842, 389 P.2d 422 (1964); Lenci v. City of Seattle, 63 Wash.2d 664, 388 P.2d 926 (1964).

We look first at the 'void for vagueness' problem, which is the subject of defendant's first argument in support of the judgment. In his appellate brief defendant states: ⁴

The impermissible vagueness is in these particular phrases: (1) 'wandering or loitering abroad'; (2) 'abroad under other suspicious circumstances'; and (3) 'a satisfactory account of himself.'

To be consistent with due process, a penal statute or ordinance must contain ascertainable standards of guilt, so that men of reasonable understanding are not required to guess at the meaning of the enactment. Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948). A law that fails to give fair notice of what acts will be punished is violative of due process. Ibid. It is fundamental that no ordinance may unreasonably or unnecessarily interfere with a person's freedom, whether it be to move about or to stand still. The right to be let alone is inviolate; interference with that right is to be tolerated only if it is necessary to protect the rights and the welfare of others. State v. Caez, 81 N.J.Super. 315, 195 A.2d 496 (1963); Territory of Hawaii v. Anduha, 48 F.2d 171 (9th Cir. 1931); City of St. Louis v. Gloner, 210 Mo. 502, 109 S.W. 30 (1908); Pinkerton v. Verberg, 78 Mich. 573, 44 N.W. 579, 7 L.R.A. 507 (1889).

An ordinance that restricts such freedom must contain standards that are reasonable and that do not permit arbitrary enforcement. If an ordinance imposes sanctions authorized by language that is doubtful, vague, or uncertain, it violates fundamental concepts of justice and due process of law. State v. Caez, supra.

Webster's New International Dictionary (3rd ed. 1961) defines 'loiter' as

fritter away time * * * be * * * unduly slow in doing something * * * remain in or near a place in an idle or apparently idle manner

and 'wander' as

to move about without a fixed course, aim, or goal * * *.

Black, Law Dictionary (4th ed. 1961) defines 'loiter' as:

To be dilatory; to be slow in movement; to stand around or move slowly about; to stand idly around; to spend time idly; to saunter; to delay; to idle; to linger; to lag behind.

It defines 'wander' as:

To ramble here and there without any certain course.

The city argues that its ordinance is not to be construed as authorizing inquiry of a person whose conduct manifests a Lawful purpose. Citing and relying upon cases holding that loitering connotes an Unlawful purpose, the city contends that only unlawful purposes are within the ambit of its ordinance. We cannot agree. As the late Judge Rudkin said in Territory of Hawaii v. Anduha, 48 F.2d 171 (9th Cir. 1931):

These words (idle, loiter, loaf) have no sinister meaning and imply no wrongdoing or misconduct on the part of those engaged in the prohibited practices.

Accordingly, we are not convinced by those cases relied upon by the city, insofar as they hold that 'loiter' connotes unlawful activity. Our conclusion is fortified by Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). The court intimated that 'loitering' in a 'satisfactory account' type of ordinance is to be given its lay meaning. As indicated, the lay meaning of loitering cannot reasonably connote unlawful activity.

Further, the city contends that good intentions and self-restraint of law enforcement officers will not result in unjust prosecution. This assurance, however, does not save the ordinance because '(w)ell-intentioned prosecutors * * * do not neutralize the vice of a vague law.' Baggett v. Bullitt, 377 U.S. 360, 373, 84 S.Ct. 1316, 1323, 12 L.Ed.2d 377 (1964). The law should be so drawn as to make it inapplicable to cases which obviously are not intended to be included within its terms.

The Seattle ordinance imposes sanctions upon conduct that may not manifest an unlawful purpose, ⁵ and, therefore, is violative of due process of law. The language of the ordinance is too broad; it is vague. A citizen cannot determine its meaning so that he may regulate his conduct. There is nothing in the ordinance that would enable him to know the dividing line between innocent loitering (for example, window shopping) and criminal loitering. Loitering ordinances that fail to spell out this distinction have been struck down. ⁶ People v. Diaz, 4 N.Y.2d 469, 176 N.Y.S.2d 313, 151 N.E.2d 871 (1958); City of Akron v. Effland, 112 Ohio App. 15, 174 N.E.2d 285 (1960); City of Cleveland v. Baker, Ohio App., 167 N.E.2d 119, 83 Ohio Law Abst. 502 (1960); City of St. Louis v. Gloner, 210 Mo. 502, 109 S.W. 30 (1908). See 'Vagrancy and Arrest on Suspicion' by Mr. Justice Douglas in 70 Yale L.J. 1 (1960--1961).

The Seattle ordinance makes no distinction between conduct calculated to harm and that which is essentially innocent.

As we interpret the cases dealing with loitering ordinances, the right of a law enforcement officer to inquire of persons wandering abroad at night is limited to those persons whose Conduct gives the officer reason for alarm that they are engaged in unlawful activity. ⁷ The crime, however, cannot be the failure to give answers satisfactory to the officer

If the ordinance means that the legality of a person's action depends upon the opinion of a policeman, it would be unconstitutional. City of Portland v. Goodwin, 187 Or. 409, 426, 210 P.2d 577 (1949). As expressed by Mr. Justice Black, our government is one of clearly defined laws rather than 'government by the moment-to-moment opinions of a policeman on his beat.' Cox v. State of Louisiana, 379 U.S. 559, 579, 85 S.Ct. 466, 469, 476, 13 L.Ed.2d 487 (1965). An ordinance that allows a person to stand on a public sidewalk only at the whim of a police officer is unconstitutional. Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965).

In City of Portland v. Goodwin, supra, the issue was whether or not the Portland ordinance (making it unlawful to be on the streets 'without having and disclosing a lawful purpose') meant that a person had to disclose his purpose to a police officer, with the latter determining the lawfulness of the disclosed purpose. The trial court construed the ordinance in this manner, but the supreme court disagreed, stating: 'The policeman does not determine the issue of guilt or innocence in cases of this kind * * *.' The court admitted that since innocuous conduct cannot be punished, if the trial court's construction of the ordinance had been correct the ordinance would be unconstitutional. The supreme court, however, found 'no justification for so strained a construction.' 187 Or. 409, at 426, 210 P.2d 577, at 584. In the Seattle ordinance, we believe such a 'strained' construction is dictated by the words of the ordinance.

The rationale of City of Portland v. Goodwin, supra, is set forth in a supplemental opinion given when the petition for rehearing was denied The overt act which violates the ordinance and thus authorizes arrest is the willful act of going upon the street during the prohibited hours and then and there manifesting by conduct an unlawful purpose. 187 Or. at 429, 210 P.2d at 586.

The importance of loitering ordinances cannot be minimized. They are necessary for the protection of society and for the preservation of the public peace. They must, however, be drafted in a manner that protects the rights of the individual as well as the rights of the public.

We believe the best considered comment...