Ricks v. United States

• Decision Date: 23 December 1968
• Docket Number: No. 20919A.,20919A.
• Citation: 414 F.2d 1111,134 US App. DC 215
• Parties: Hattie Mae RICKS and Joseph N. Williams, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

134 US App. DC 215, 414 F.2d 1111 (1968)

Hattie Mae RICKS and Joseph N. Williams, Appellants, v. UNITED STATES of America, Appellee.

No. 20919A.

United States Court of Appeals District of Columbia Circuit.

Argued May 17, 1968.

Decided December 23, 1968.

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

Mr. Theodore Wieseman, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker and Earl J. Silbert, Asst. U. S. Attys., were on the brief, for appellee.

Before TAMM, LEVENTHAL and ROBINSON, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

In Ricks v. District of Columbia (Ricks I),¹ decided today, we hold that three subsections of the District of Columbia's "general vagrancy" law² are unconstitutionally vague. Before us now is a similar challenge³ to the "narcotic vagrancy" act⁴ in operation in the District. Like its Ricks I prototype, this statute sets forth alternative definitions of a "vagrant"⁵ — a term here involving indispensably narcotic drug usage or past conviction of a narcotic offense⁶ — and makes vagrancy under its provisions a misdemeanor.⁷ And like the general vagrancy enactment,⁸ the narcotic vagrancy law has been implemented administratively with police observation procedures which are pursued before vagrancy arrests are made.⁹

Both appellants were subjected to a series of pre-arrest observations, all in the 1200 block of Seventh Street, Northwest, and the testimony at trial described what was seen on each occasion. On January 6, 1966, at 11:00 p. m., appellant Williams was on the street with two women said to be convicted narcotic offenders. On January 13, at 11:30 p. m., he conversed with another female narcotic used in front of a building. Both appellants, on January 22 at 3:20 a. m., crossed Seventh Street, entered a building and remained in the hallway for 15 minutes. Needle marks were discerned on appellant Williams' arm each time, and one of these marks was said to be fresh. Each time, however, questioning by the observing officers produced an explanation for his presence in the neighborhood and a denial that he was using narcotics.

Observations on appellant Ricks¹⁰ began on February 21, 1966, when she sat, for short periods after midnight, in a carry-out shop before twice leaving with different men and later returning alone. Two days later, at 9:30 and 9:45 p. m., she stood on the street with two women reputed to be narcotic law violators and prostitutes; within the hour, she was on the street alone, and at 11:00 p. m. she entered a bar. On February 24, between 4:00 and 4:45 a. m., she got into and out of parked cars with men behind the wheels. On March 1, at 10:50 p. m., she was on the street for ten minutes. She had old and new needle marks on her arm, so the testimony ran, but on all but one occasion she denied the use of narcotics. And each time she gave explanations for her presence on Seventh Street, but once admitted to two acts of prostitution.

The arrests occurred on March 8, 1966, about 10:15 p. m. As officers watched from across the street, appellants stood in the 1200 block of Seventh Street, Northwest, in the company of "a known and admitted" gambler and two "known and convicted" narcotic violators and prostitutes. Appellant Williams was then engaged in an argument with one of the women who claimed that he had "sold me some bad stuff."¹¹ The accuser called the officers over and repeated the accusation, which was promptly denied.¹² Examination revealed "fresh marks" on both appellants' arms and, after questioning,¹³ each was placed under arrest.

Appellants were prosecuted on separate informations charging vagrancy within two of the statute's specifications:

"(b) For the purpose of this section —

"(1) the term `vagrant\' shall mean any person who is a narcotic drug user¹⁴ or who has been convicted of a narcotic offense in the District of Columbia or elsewhere and who —

"(A) having no lawful employment or visible means of support realized from a lawful occupation or source, is found mingling with others in public or loitering in any park or other public place and fails to give a good account of himself; * * *

"(C) wanders about in public places at late or unusual hours of the night, either alone or in the company of or association with a narcotic drug user or convicted narcotic law violator, and fails to give a good account of himself;"¹⁵

At a joint trial in the Court of General Sessions, appellants moved to dismiss the informations for alleged unconstitutional vagueness in the statutory proscriptions. Chief Judge Greene, noting the similarity of the general and the narcotic vagrancy statutes, and relying upon his opinion in Ricks I,¹⁶ was of the opinion that the latter was unconstitutional. Considering, very properly, that he was bound by decisions of the District of Columbia Court of Appeals to the contrary,¹⁷ he denied the motions, found each appellant guilty, and sentenced each to a term in jail. The Court of Appeals affirmed,¹⁸ and the importance of the constitutional issues raised led to allowance of this further appeal. Without reaching other contentions advanced by appellants, we hold that the statutory provisions upon which they were convicted in this case are vague to the point that they contravene the Fifth Amendment, and accordingly reverse.

I

We are greeted at the outset with the Government's protest that appellants lack standing to urge the unconstitutionality of the narcotic vagrancy statute on its face. The Government expresses concern that appellants will be permitted to "attack the statute on the ground that its language might permit it to be applied in an unconstitutional manner to other people in hypothetical situations not involved in the instant case." We think it clear, however, that the Government has misconceived appellants' point of view. For this reason, we deem it helpful to mark out the contours of this litigation, to identify what is involved, and to shape the issue we are summoned to decide.

Appellants contend that they have been arrested and convicted for violation of two statutory subsections framed in language too imprecise to fairly warn them of the conduct sought to be prohibited.¹⁹ Appellants also say that the ambiguities in these two subsections left police officers free to charge, and judicial officers free to assess, their guilt solely on the basis of conjecture.²⁰ Appellants' complaint is addressed to the two subsections upon which their convictions were rested,²¹ and to the impact of those subsections upon them alone.²² Their position is not camouflaged by makeweight hypotheticals in an effort to induce us to "consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation,"²³ nor do they call upon us "to anticipate a question of constitutional law in advance of the necessity of deciding it."²⁴ Appellants, in endeavoring to demonstrate their thesis of unconstitutional personal harm, are at liberty to resort to the linguistic sources of their present legal difficulties.²⁵

II

Proceeding now to the merits, and examining the two subsections of the narcotic vagrancy law under which appellants were convicted, we see the substantial similarity of the statutory proscriptions which were applied against appellants in this case and those which in Ricks I we held to be constitutionally insufficient.

Subsection (A), upon which the first charge against appellants was laid, defines as a vagrant any unemployed narcotic user or convicted narcotic offender²⁶ without lawful and "visible means of support" who "is found mingling with others in public or loitering in any * * * public place and fails to give a good account of himself."²⁷ The striking resemblance of this subsection to the invalid Ricks I subsection (1)²⁸ is apparent.

Subsection (C), the statutory predicate for the second accusation against appellants, extends the vagrant definition to any narcotic user or convicted narcotic offender²⁹ who "wanders about in public places at late or unusual hours of the night * * * and fails to give a good account of himself."³⁰ The close likeness this subsection bears to the infirm Ricks I subsection (8)³¹ is manifest.

The same fatal statutory generalities discussed in Ricks I — "loitering,"³² failure to give "a good account,"³³ "wanders,"³⁴ and without "visible means of support"³⁵ — pervade the enactment under scrutiny,³⁶ without any legislative definition whatever. Both of the subsections involved in this appeal incorporate at least two of them as essential elements of the crimes of which appellants were found guilty. As was the situation in Ricks I, there is no body of limiting judicial construction helpful to the problems presented here.³⁷

Thus we cannot find in the statutory language a degree of specificity that would enable citizens of ordinary intellect to distinguish wrong from right, or administrators or jurists to confidently make applications. And like the provisions involved in Ricks I, those here in issue open the door wide to convictions on suspicion in lieu of proof of criminality. A vagrancy conviction is precipitated by the police record accumulated from vagrancy observations, and the observations enable the building of that record on suspicion alone. The process is well illustrated by the testimony of the officer who made the first observation of appellant Ricks. She was selected for a vagrancy observation "because in my opinion she was involved in some sort of an illegal activity" which the witness suspected was prostitution. "The basis for that suspicion" was that "she's a known prostitute" and because the officer twice saw her leave the carry-out with different men and return shortly thereafter. Admittedly these circumstances created no ground for a prostitution arrest, but they "did justify * * * making an observation...