Ricks v. District of Columbia, No. 20919.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: TAMM, LEVENTHAL and ROBINSON, Circuit
• Citation: 134 US App. DC 201,414 F.2d 1097
• Docket Number: No. 20919.
• Decision Date: 23 December 1968
• Parties: Hattie Mae RICKS, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

134 US App. DC 201, 414 F.2d 1097 (1968)

Hattie Mae RICKS, Appellant,
v.
DISTRICT OF COLUMBIA, Appellee.

No. 20919.

United States Court of Appeals District of Columbia Circuit.

Argued May 17, 1968.

Decided December 23, 1968.

414 F.2d 1098

Messrs. Monroe H. Freedman and Sol Rosen, Washington, D. C., with whom Mr. Ralph J. Temple, Washington, D. C., was on the brief, for appellant.

Mr. Ted D. Kuemmerling, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Charles T. Duncan, Corporation Counsel, Hubert B. Pair, Principal Asst. Corporation Counsel, and Richard W. Barton, Asst. Corporation Counsel, were on the brief, for appellee.

Before TAMM, LEVENTHAL and ROBINSON, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Nearly every state in the Union has ventured to regulate in a criminal context an assortment of conduct characteristically grouped under the denomination "vagrancy."¹ Congress, in like vein, has enacted the two statutes currently in operation in the District of Columbia commonly referred to as the "general vagrancy"² and "narcotic vagrancy"³ laws. On this appeal we came face-to-face with claims of unconstitutionality directed toward the former. In a companion case,⁴ decided today, we deal with similar challenges to the latter.

The legislation now before us categorizes eight "classes of persons" who "shall be deemed vagrants in the District of Columbia,"⁵ and specifies fine and imprisonment as the punishment for vagrancy.⁶ The District's police department has administratively implemented these provisions with procedures, called "vagrancy observations," which are utilized prior to vagrancy arrests. An observation, as the word connotes, consists in police surveillance of an individual, followed by questioning and the assembly of information on a vagrancy observation form.⁷ The form is turned in at a precinct

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station and circulated to other precincts with substantial vice problems. At least three observations within a 45-day period are customarily made before the person observed is arrested for vagrancy.⁸

On January 22, 1966, at 3:08 a. m., two police officers, patrolling a section of the inner city described as a "den of vice," saw appellant standing in the doorway of a "known house of ill fame." The officers recognized appellant as a "known and convicted felon, thief, prostitute, vagrant, and narcotics user."⁹ She was "observed"¹⁰ approaching a male pedestrian and walking with him toward a neighboring "house of ill fame." The officers intercepted the pair and asked appellant a battery of questions concerning her reasons for being on the streets at that hour, to which appellant responded that she was on her way to "Slim's room" to get clothes which she left there. Inquiry was also made as to her employment status, the last time she had "turned a trick,"¹¹ and her use of "junk."¹² Appellant said that she was not employed, was no longer using "junk," and had not "turned tricks" since the previous month. Compliably with the officers' request, she rolled up her sleeves, thereby revealing two needle marks on her left arm.

Four days later, an around-the-clock police vigil again focused on appellant. At 1:04 a. m. she was spotted "flagging several automobiles" carrying male occupants, and was overheard using the jargon of professional prostitutes soliciting customers. She asked one male driver if he was "sporting" and invited him to accompany her to a house because she "didn't turn any tricks in any car." She was again questioned by the police and, for the second time, her answers intimated nothing. Marks were perceived on appellant's left arm when, in response to an officer's request, she exposed it.

On January 29, 1966, seven days after the first observation, appellant was seen at 4:10 in the morning walking back and forth from a street corner. Her meandering apparently aroused the interest of a police officer who kept her in view for approximately ten minutes. Then followed another round of interrogation, and appellant was informed of the vagrancy law and told to go home.

The final observation of appellant was made by the officer who had conducted the first. On February 11, 1966, between 1:30 and 3:00 a. m., he detected appellant standing on a street corner and stopping male pedestrians as they passed. This time the officer placed appellant under arrest.

The information upon which appellant was prosecuted charged that appellant

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was a vagrant within three of the statute's definitions of the term:¹³

"The following classes of persons shall be deemed vagrants in the District of Columbia:

"(1) Any person known to be a pickpocket, thief, burglar, confidence operator, or felon, either by his own confession or by his having been convicted in the District of Columbia or elsewhere of any one of such offenses or of any felony, and having no lawful employment and having no lawful means of support realized from a lawful occupation or source, and not giving a good account of himself when found loitering around in any park, highway, public building, or other public place, store, shop, or reservation, or at any public gathering or assembly. * * *

"(3) Any person leading an immoral or profligate life who has no lawful employment and who has no lawful means of support realized from a lawful occupation or source. * * *

"(8) Any person who wanders about the streets at late or unusual hours of the night without any visible or lawful business and not giving a good account of himself."

At the ensuing trial in the Court of General Sessions, appellant pressed motions to dismiss the information and for a judgment of acquittal on the ground, inter alia, that the vagrancy statute was unconstitutionally vague. Chief Judge Greene, in an illuminating opinion,¹⁴ expounded the view that the statute was indeed invalid¹⁵ but, recognizing the binding force of decisions of the District of Columbia Court of Appeals sustaining the statute, denied both motions and found appellant guilty as charged. The Court of Appeals affirmed,¹⁶ adherently to its earlier pronouncements,¹⁷ and we allowed this further appeal because of the obvious importance of the questions involved.

Appellant advances skillfully a number of bases upon which it is urged that the vagrancy law is unconstitutional, but we find it necessary to consider but one. The pervading difficulty, as we see it, is the legislative omission to provide a reasonable degree of guidance to citizens, the police and the courts as to just what constitutes the offenses with which appellant was charged. We reverse, holding that each of the statutory provisions upon which appellant's conviction rests is so vague as to infringe rights secured by the Fifth Amendment.

I

Reasonable precision in the definition of crime has been regarded as a desideratum by free people since the early days of the common law.¹⁸ That

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precept, virtually from the birth of the Nation, has occupied a position of honor in the scheme of constitutional values,¹⁹ and for justifications of the highest order. Fluid language which sweeps citizens under the penumbra of penal legislation without warning is abhorrent. The imposition of criminal liability for behavior which a person could not reasonably understand to be prohibited offends the most rudimentary considerations of fairness. "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids."²⁰ Thus "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law."²¹

Statutory vagueness has a distinctive impact, too, on human activity not essentially wicked and on the processes by which its criminality is to be appraised. "Liberty under law extends to the full range of conduct which the individual is free to pursue."²² Since most people shy away from legal violations, personal liberty is unconstitutionally dampened when one can but doubt whether he is actually free to pursue particular conduct.²³ Moreover, definitional uncertainty is an open invitation, if indeed not inevitably an antecedent, to virtually unrestrained administration. "A law fails to meet the requirements of the Due Process Clause" not only "if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits," but also if it "leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case."²⁴ And legislation of that character "does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat."²⁵

So it is that a criminal statute perishes on constitutional grounds when it leaves speculative the tests for ascertaining the line separating guilty from innocent acts. A reasonable degree of

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certainty is prerequisite.²⁶ Fair notice to those of ordinary intelligence is necessary.²⁷ It is essential that the statutory language "conveys sufficiently definite warnings as to the proscribed conduct when measured by common understanding and practices."²⁸

These are the critical elements of the void-for-vagueness doctrine; these are the criteria by which we must measure the statute at bar. "Vague laws in any area suffer a constitutional infirmity,"²⁹ and what the Constitution demands of other laws it exacts imperatively of those which undertake to punish vagrancy.³⁰

II

Appellant was prosecuted and convicted under three of the statutory subsections — (1), (3) and (8) of Section 22-3302 — defining independent concepts of vagrancy. Perusal of these subsections³¹ discloses that each incorporates language precipitating problems in terms of the...