Sult v. State, 2D01-5013.

• Decision Date: 28 February 2003
• Docket Number: No. 2D01-5013.,2D01-5013.
• Citation: 839 So.2d 798
• Parties: Kimberly S. SULT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

839 So.2d 798

Kimberly S. SULT, Appellant, v. STATE of Florida, Appellee.

No. 2D01-5013.

District Court of Appeal of Florida, Second District.

February 28, 2003.

Patrick B. Calcutt and Kathleen M. Calcutt of Calcutt & Calcutt, St. Petersburg, and John H. Trevena, Largo, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellee.

GREEN, OLIVER L., Senior Judge.

On a certified question from the county court as a matter of great public importance, this court accepted jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(4) and 9.160. A jury found Kimberly Sult guilty for a violation of section 843.085, Florida Statutes (2001), "Unlawful use of police badges or other indicia of authority." The trial court withheld adjudication and imposed $300 in costs. In upholding the constitutionality of the statute, the trial court certified the following question:

IS [SECTION] 843.085 VIOLATIVE OF THE CONSTITUTION OF THE UNITED STATES AND OF THE STATE OF FLORIDA IN THAT IT CRIMINALIZES WHAT COULD BE INNOCENT CONDUCT, SPECIFICALLY THE WEARING OF PARAPHERNALIA THAT CAN BE PURCHASED THROUGH COMMERCIAL CHANNELS BY THE PUBLIC AND COULD BE MISCONSTRUED AS INDICIA OF AUTHORITY?

The trial court's certified question appears to raise the issue of substantive due process. Sult challenges the statute on the grounds of overbreadth, vagueness, and substantive due process. She also raises three other issues which we affirm without discussion. We hold that section 843.085 is not overbroad or vague and that it does not violate the right to substantive due process; in turn, we certify a question of great public importance to the Florida Supreme Court.

On June 14, 2001, at approximately 9:15 p.m., Corporal Jerry Davis of the Pinellas County Sheriff's Office noticed Sult entering a convenience store in St. Petersburg. Sult was dressed in a black T-shirt on which was printed a large star and five-inch letters spelling "SHERIFF." The large star depicted a crest and said "Pinellas County Sheriff's Office." At trial, Detective Frank Davis identified the T-shirt Sult had been wearing as an official shirt of the Pinellas County Sheriff's Office and testified that the shirt was used in emergency response situations. Sult was also wearing denim shorts and sandals.

Corporal Davis and Deputy Jeff McConaughey approached Sult, and Corporal Davis asked, "Do you work for us?" Sult replied, "Yes," she opened her wallet, and the officers saw a Pinellas County Sheriff's Office identification card clipped to her wallet. Corporal Davis believed she was in violation of their office policy by wearing only part of a uniform. The officers discovered several minutes later that Sult was not an employee of the sheriff's office, and she was charged with a violation of section 843.085(1). Sult had previously been employed by the Pinellas County Sheriff's Office as a criminal justice specialist and as a detention deputy recruit. When she left her employment with the sheriff's office in October 2000, she did not return her identification card. Sult purchased the T-shirt at Americana Uniforms, a store open to the public. Sult testified that when she purchased the T-shirt she was not in uniform and was not asked for identification. Section 843.085 provides in relevant part:

843.085 Unlawful use of police badges or other indicia of authority. — It is unlawful for any person:

(1) Unless appointed by the Governor pursuant to chapter 354, authorized by the appropriate agency, or displayed in a closed or mounted case as a collection or exhibit, to wear or display any authorized indicia of authority, including any badge, insignia, emblem, identification card, or uniform, or any colorable imitation thereof, of any federal, state, county, or municipal law enforcement agency, or other criminal justice agency as now or hereafter defined in s. 943.045, which could deceive a reasonable person into believing that such item is authorized by any of the agencies described above for use by the person displaying or wearing it, or which displays in any manner or combination the word or words "police," "patrolman," "agent," "sheriff," "deputy," "trooper," "highway patrol," "Wildlife Officer," "Marine Patrol Officer," "state attorney," "public defender," "marshal," "constable," or "bailiff," which could deceive a reasonable person into believing that such item is authorized by any of the agencies described above for use by the person displaying or wearing it.

....

(4) Nothing in this section shall prohibit a fraternal, benevolent, or labor organization or association, or their chapters or subsidiaries, from using the following words, in any manner or in any combination, if those words appear in the official name of the organization or association: "police," "patrolman," "sheriff," "deputy," "trooper," "highway patrol," "Wildlife Officer," "Marine Patrol Officer," "marshal," "constable," or "bailiff."

(5) Violation of any provision of this section is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. This section is cumulative to any law now in force in the state.

The legislature enacted section 843.085 to promote public safety. The legislative history indicates that the intent was to prevent individuals from committing crimes while posing as police officers. See Fla. H.R. Comm. on Crim. Just. CS/HB 457 (1991) Staff Analysis 5 (final May 13, 1991) (on file with Florida State Archives) (commenting that, based on information from the Metro-Dade Police Department, "robberies and kidnappings in which the offenders pose as police officers are occurring with alarming frequency"). With the legislative intent in mind, we turn to the constitutional challenges Sult raises to section 843.085.

OVERBREADTH

Sult contends that the statute is overbroad because it encroaches upon First Amendment rights. In response to this argument, the trial court stated in its order, "The statute is not overbroad as no constitutionally protected guarantees of free speech or free association are affected. See Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940)

." Thornhill invalidated a statute which prohibited loitering and picketing and stated that "the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution." Id. at 102. Thornhill does not appear to support the proposition that the First Amendment is not implicated under section 843.085.

Wearing a T-shirt that bears a political message is protected speech. Bd. of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987); see Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (stating that the defendant's conviction was based entirely upon speech for wearing a jacket that said "Fuck the Draft"). We note, however, that "the right to dress as one pleases, vis-a-vis style and fashion, has little or no first amendment implications." City of Daytona Beach v. Del Percio, 476 So.2d 197, 202 (Fla. 1985). Here, section 843.085 does not prohibit an expression of support for law enforcement. A citizen may wear a shirt that says, for example, "I support the Pinellas County Sheriff's Office" or "Support the Police." It also does not prohibit wearing a shirt that expresses disdain for law enforcement.

Rather, the statute prohibits the wearing or displaying of indicia of authority, or a colorable imitation thereof, of a law enforcement agency that could deceive a reasonable person into believing that the item is authorized by the agency for use by the person displaying or wearing it. The wearing of a shirt that depicts, for example, a star, the word "sheriff," and a crest that says "Pinellas County Sheriff's Office," to the extent that it is expression, is expression of an ambiguous message. Any message that may have been intended is unclear, unlike the expression of the defendant's feelings about the draft in Cohen. Sult's shirt, and other uniform shirts, neither expressly convey support of nor protest against the sheriff's office. It is also possible that a person would wear a uniform shirt because he or she is a member of that law enforcement agency. Thus, we conclude that to wear an official uniform shirt of a law enforcement agency, or a replica of one, implicates only an incidental amount of expressive conduct.

Here, Sult's conduct clearly fell within the prohibitions of section 843.085. She wore an official Pinellas County Sheriff's Office T-shirt to a convenience store, and when asked if she worked for the sheriff's office, she said "yes" and displayed a sheriff's office identification card. An overbreadth analysis, however, is a facial analysis rather than an "as-applied" analysis.

Under the First Amendment overbreadth doctrine, an individual whose own speech or conduct may be prohibited is permitted to challenge a statute on its face "because it also threatens others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid." Bd. of Airport Comm'rs, 482 U.S. at 574, 107 S.Ct. 2568 (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985)). Thus, the purpose of the overbreadth doctrine and its requirement that the court consider hypothetical situations is to eliminate a chilling effect on the exercise of the constitutional right to free speech. See Schmitt v. State, 590 So.2d 404 (Fla.1991)

. "Restrictions on first amendment rights must be supported by a compelling, governmental interest and must be narrowly drawn to insure that there is no more infringement than is necessary." Firestone v. News-Press Publ'g Co., 538 So.2d 457, 459 (Fla. 1989).

The overbreadth doctrine,...