Johnson v. Carson

• Decision Date: 08 March 1983
• Docket Number: No. 81-1079-Civ-J-JHM.,81-1079-Civ-J-JHM.
• Citation: 569 F. Supp. 974
• Parties: Anita Evyonne JOHNSON, Petitioner, v. Dale CARSON, Sheriff of Duval County, and City of Jacksonville, Respondents.
• Court: U.S. District Court — Middle District of Florida

569 F. Supp. 974

Anita Evyonne JOHNSON, Petitioner, v. Dale CARSON, Sheriff of Duval County, and City of Jacksonville, Respondents.

No. 81-1079-Civ-J-JHM.

United States District Court, M.D. Florida, Jacksonville Division.

March 8, 1983.

James T. Miller, Asst. Public Defender, Jacksonville, Fla., for petitioner, Anita Evyonne Johnson.

William Lee Allen, Asst. Counsel, Jacksonville, Fla., Barbara Butler, Daytona Beach, Fla., and Kathryn L. Sands, Asst. Attys. Gen., Jacksonville, Fla., for respondents, Dale Carson and City of Jacksonville.

WRIT OF HABEAS CORPUS

JOHN H. MOORE, District Judge.

This cause is before the Court on the Report and Recommendation of the United States Magistrate, entered herein on June 22, 1982.

Petitioner was convicted for violating Municipal Ordinance § 330.107, of the City of Jacksonville, Florida, Loitering for the Purpose of Prostitution. The Judgment of Conviction was entered on April 13, 1981, by the Honorable John M. Marees, County Court, Division A, Fourth Judicial Circuit of Florida, Duval County, Jacksonville, Florida. Petitioner was sentenced to a 45-day term of imprisonment in the County Jail at Duval County, Florida, with credit for one day. On April 14, 1981, the Honorable John M. Marees entered an order staying execution of the sentence pending Petitioner's appeal in the State Courts and on October 28, 1981, Judge Marees entered an order staying execution of Petitioner's sentence pending appeal in the Federal Courts.

The Petition for Writ of Habeas Corpus filed herein on October 30, 1981, alleges that Petitioner is in unlawful custody because Municipal Ordinance § 330.107, City of Jacksonville, violates the First and Fourteenth Amendments to the United States Constitution.

The Magistrate's report recommends that the Writ of Habeas Corpus be granted because Municipal Ordinance § 330.107 is unconstitutional on its face. Specifically, the Magistrate finds that the ordinance is overbroad in violation of the First Amendment to the United States Constitution.

Respondents filed their Objection to Report and Recommendation on July 2, 1982. This Court has conducted a de novo review of the entire record in this matter as required by 28 U.S.C. § 636. After doing so, the Court finds that Respondents' objections are without merit. This Court concurs in the Magistrate's finding that Municipal Ordinance § 330.107 is unconstitutional on its face because it is overly broad. The ordinance prohibits constitutionally-protected as well as unprotected conduct in violation of the first amendment to the United States Constitution. Consequently, the Report and Recommendation is adopted and confirmed and made a part hereof and in accordance therewith, it is

ORDERED AND ADJUDGED:

1. The Petition for Writ of Habeas Corpus is GRANTED; and

2. The Judgment of Conviction imposed upon Petitioner is hereby VACATED and set aside and Petitioner is released from her obligation to serve the sentence imposed upon her because of said conviction.

DONE AND ORDERED in Chambers at Jacksonville, Florida this 8 day of March, 1983.

APPENDIX

Magistrate's Report and Recommendation^*

VI. First Amendment

Petitioner's first ground for relief, i.e., that the ordinance violates the First Amendment, has several aspects. Petitioner alleges that the ordinance is overbroad, does not utilize the least intrusive means of preventing prostitution activities, chills and deters the exercise of free speech, assembly, and association, permits arbitrary and capricious law enforcement, and is vague. These allegations can be grouped into two main headings — overbreadth and vagueness.

Before examining those allegations, Respondents' argument that no first amendment rights are involved must be examined. Section 330.107 provides:

(a) It shall be unlawful and a class D offense for any person to loiter in or near any thoroughfare, street, highway, or place open to the public in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting, or procuring another to commit an act of prostitution, lewdness, or assignation.

(b) Among the circumstances which may be considered in determining whether this purpose is manifested are that such a person (1) is a known prostitute, pimp, or sodomist; (2) repeatedly beckons to, stops or attempts to stop or engages passers-by in conversation; or (3) repeatedly stops or attempts to stop motor vehicle operators by hailing, waving of arms or any bodily gesture.

(c) No arrest shall be made for a violation of this subsection unless the arresting officer first affords such person an opportunity to explain his conduct, and no one shall be convicted of violating subsection (a) if it appears at trial that the explanation given was true and disclosed a lawful purpose.

(d) For the purpose of subsections (a) and (b) the following words shall have the following meanings:

(1) Prostitution shall mean the giving or receiving of the body for sexual intercourse for hire or the giving or receiving of the body for licentious sexual intercourse without hire.

(2) Lewdness shall mean sodomy, cunnilingus fellation, masturbation or analingus.

(3) Assignation shall mean the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.

(4) Known prostitute, pimp or sodomist shall mean any person who, within one year previous to the date of arrest for violation of this section, has within the knowledge of the arresting officer been convicted of violating any ordinance of the City or law of Florida or any state defining and punishing acts of soliciting, committing or offering or agreeing to commit prostitution, lewdness, or assignation. Emphasis added.²

The ordinance appears to prohibit various activities such as a "known prostitute" loitering on a street corner, anyone repeatedly engaging passers-by in conversation and anyone repeatedly attempting to stop cars by waving their arms. Thus, in the present case, as in Sawyer:

The "protected freedom" involved in this case is the first amendment guarantee of freedom of association. See, e.g., Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). This right to freely associate is not limited to those associations which are "political in the customary sense" but includes those which "pertain to the social, legal, and economic benefit of the members." Griswold v. Connecticut, 381 U.S. 479, 483, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965). "The rights of locomotion, freedom of movement, to go where one pleases, and to use the public streets in a way that does not interfere with the personal liberty of others" are implicit in the first and fourteenth amendments. Bykofsky v. Borough of Middletown, 401 F.Supp. 1242, 1254 (M.D.Pa.1975), aff'd without opinion, 535 F.2d 1245 (3d Cir.), cert. denied, 429 U.S. 964, 97 S.Ct. 394, 50 L.Ed.2d 333 (1976). Emphasis added.

615 F.2d 311 at 315-16. The Sawyer court went on to conclude that even associating on the street corner is constitutionally protected. See, Aladdin's Castle, Inc. v. City of Mesquite, 630 F.2d 1029, 1041-42 (5th Cir.), modified, 455 U.S. 283, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982). Loitering, loafing, and habitually wandering at night are also constitutionally protected. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Since § 330.107 prohibits these rights in certain circumstances, the first amendment is involved in the present case. Although speech incident to soliciting for prostitution is not protected by the first amendment, Morgan v. Detroit, 389 F.Supp. 922, 927 (D.C.Mich.1975), § 330.107 does not appear to stop at prohibiting such speech. In fact, to violate § 330.107, a person need not actually solicit or speak to anyone. See Response to Order to Show Cause, page 11.

It should also be noted that since Petitioner has challenged the facial validity of the ordinance on first amendment grounds, it is irrelevant whether her conduct, which subjected her to arrest, could constitutionally be prohibited. Broadrick v. Oklahoma, 413 U.S. 601, 611-612, 93 S.Ct. 2908, 2915-2916, 37 L.Ed.2d 830 (1973); Beckerman v. City of Tupelo, Mississippi, 664 F.2d 502, 506-07 (5th Cir.1981).

A. Overbreadth

An ordinance is overbroad when it seeks to prohibit constitutionally protected as well as unprotected conduct. Grand Faloon Tavern v. Wicker, 670 F.2d 943, 946 (11th Cir.1982). In Broadrick, supra, the Supreme Court stated:

It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society. Herndon v. Lowry, 301 U.S. 242, 258 57 S.Ct. 732, 739, 81 L.Ed. 1066 (1937); Shelton v. Tucker, 364 U.S. 479, 488 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960); Grayned v. City of Rockford, 408 U.S. 104, at 116-117 92 S.Ct. 2294, 2303-2304, 33 L.Ed.2d 222.

... Overbreadth attacks have also been allowed where the Court thought rights of association were ensnared in statutes which, by their broad sweep, might result in burdening innocent associations. See Keyishian v. Board of Regents, 385 U.S. 589 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); United States v. Robel, 389 U.S. 258 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Aptheker v. Secretary of State, 378 U.S. 500 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Shelton v. Tucker, supra.

413 U.S. at 611-612, 93 S.Ct. at 2915-2916.

The Court went on to note that the application of the overbreadth doctrine to invalidate a law is "strong medicine." Id., at 613, 93 S.Ct. at 2916. As such, it should be used "sparingly" and as a "last resort," especially when "the otherwise unprotected behavior that it forbids the State to sanction moves from `pure...