Sult v. State

• Decision Date: 23 June 2005
• Docket Number: No. SC03-542.,SC03-542.
• Citation: 906 So.2d 1013
• Parties: Kimberly S. SULT, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

906 So.2d 1013

Kimberly S. SULT, Petitioner, v. STATE of Florida, Respondent.

No. SC03-542.

Supreme Court of Florida.

June 23, 2005.

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

Charles J. Crist, Jr., Attorney General, Tallahassee, FL, Robert J. Krauss, Chief Assistant Attorney General, Bureau Chief, Tampa Criminal Appeals and John M. Klawikofsky, Assistant Attorney General, Tampa, FL, for Respondent.

WELLS, J.

We have for review a decision of a district court of appeal on the following question, which the court certified to be of great public importance:

IS SECTION 843.085, FLORIDA STATUTES (2001), UNCONSTITUTIONAL AS OVERBROAD, VAGUE, OR A VIOLATION OF THE RIGHT TO SUBSTANTIVE DUE PROCESS?

Sult v. State, 839 So.2d 798, 806 (Fla. 2d DCA 2003). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the following reasons, we answer the certified question in the affirmative and hold that section 843.085 is unconstitutionally overbroad, vague, and violates substantive due process.

FACTS

On June 14, 2001, petitioner Kimberly Sult entered a convenience store in St. Petersburg wearing a black T-shirt on which was printed a large star and five-inch letters spelling the word "SHERIFF." The star was the official sheriff's five-point star and contained the official sheriff's seal and the words "Pinellas County Sheriff's Office." Sult was also wearing denim shorts and sandals. 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.

Corporal Jerry Davis and Deputy Jeff McConaughey of the Pinellas County Sheriff's Office noticed Sult enter the store. The officers approached Sult and asked, "Do you work for us?" Sult replied, "Yes," and opened her wallet. In Sult's wallet, the officers saw a Pinellas County Sheriff's Office identification card clipped to her wallet. Corporal Davis believed that Sult was in violation of their office policy by wearing only part of a uniform. Several minutes later, the officers discovered that Sult was not an employee of the sheriff's office. She 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. It was further demonstrated at trial that other indicia of law enforcement authority are commercially sold to the public. Sult was charged and ultimately convicted of violating section 843.085(1), Florida Statutes (2001).¹ During the trial, Sult challenged the constitutionality of section 843.085, asserting that the statute was vague or overbroad and that the statute violated substantive due process and equal protection. The trial court rejected Sult's arguments. The trial court first found that the statute did not violate substantive due process. The court also applied a rational basis test and found that the statute was rationally related to the Legislature's legitimate interest in protecting the citizenry. State v. Sult, No. CTC 01-17048 MMANO DIV: E (Fla. 6th Cir. Ct. amended order filed Oct. 29, 2001). The trial court further found that the statute was not unconstitutionally vague or overbroad. The court reasoned that the statute was not vague because it gives adequate notice of what conduct is prohibited and persons of common intelligence would not have to guess at its meaning or differ as to its application. The statute was not overbroad because no constitutionally protected guarantees of free speech or free association were affected. Id.

Finally, the court found that the statute did not violate equal protection of the law based on a claim of selective prosecution, reasoning that the statute was no more vulnerable to selective prosecution than any other and that there was no particular class of people who stand to be more affected by its enactment or enforcement. However, the court certified the following question to the district court:

IS CHAPTER 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 Second District Court of Appeal held that the statute was not overbroad or vague and did not violate substantive due process. The district court considered these challenges in light of the Legislature's purpose in enacting the statute to prevent individuals from committing crimes while posing as police officers.

With respect to the overbreadth analysis, the court recognized that wearing a T-shirt that bears a political message is protected speech but that "the right to dress as one pleases, vis-à-vis style and fashion, has little or no First Amendment implications." Sult, 839 So.2d at 803 (quoting City of Daytona Beach v. Del Percio, 476 So.2d 197, 202 (Fla.1985)). The court stated that section 843.085 does not prohibit an expression of support for law enforcement but only prohibits the wearing or displaying of any indicia of authority. The statute thus implicates only an incidental amount of expressive conduct because a shirt that says "Pinellas County Sheriff's Office" at best expresses an ambiguous message. Based on this analysis, the district court held that "[i]ndividuals who wear, without authorization, full law enforcement uniforms or display law enforcement badges are not entitled to First Amendment protection for their conduct." Sult, 839 So.2d at 804. The court held that section 843.085 was therefore not overbroad. Id. at 802-04.

The Second District also held that the statute was not vague. "By flashing the sheriff's identification card, Sult showed that she was trying to deceive the officers, and the officers believed that she was an employee of the sheriff's office who had committed a uniform violation." Id. at 804. The court further noted that because the statute did involve some incidental First Amendment interests, the statute was not vague even under a facial analysis because the statute required a finding that a "reasonable person" could be deceived into believing that such item was authorized by a law enforcement agency. In so holding, the court relied on two cases from this Court that upheld statutes employing a reasonable person standard. See L.B. v. State, 700 So.2d 370 (Fla.1997) (upholding "common pocketknife" exception to the definition of a weapon); Bouters v. State, 659 So.2d 235 (Fla.1995) (upholding aggravated stalking statute).

Finally, the Second District held that the statute did not violate substantive due process. The court stated that "the incidental effect the statute may have on First Amendment rights does not justify application of the strict scrutiny level of review. Rather, we agree with the trial court's use of the rational basis test in its substantive due process analysis." Sult, 839 So.2d at 805. The court concluded that the State had a legitimate and even compelling interest in preventing robberies and kidnappings by individuals posing as law enforcement officers and that the statute was rationally related to that goal. Id. at 806.

Based on the foregoing, the Second District held that section 843.085 was not overbroad or vague and did not violate substantive due process. In so holding, the court certified the previously stated question to this Court. Sult, 839 So.2d at 806. This Court accepted review of the certified question.

The Third District Court of Appeal has also considered the constitutionality of this statute but reached a conflicting result. In Rodriguez v. State, 906 So.2d 1082, 2004 WL 93942 (Fla. 3d DCA Jan. 21, 2004), the Third District held that section 843.085 was unconstitutionally overbroad. In that case, police observed the appellant, Alberto Rodriguez, driving recklessly and erratically on a motorcycle in traffic. The officer in pursuit of Rodriguez attempted to stop him and noticed that Rodriguez was wearing a black shirt with the word "POLICE" written on the front and the back. Once the officer activated his siren and lights, Rodriguez looked back at the officer, pointed at his shirt, mouthed the word "police," and kept driving. When the officer attempted to pass Rodriguez, Rodriguez again mouthed the word "police" and pointed to his shirt. Rodriguez later admitted that he thought the officer would not pull him over if he convinced the officer that he was a member of the police department.

After an extended chase, Rodriguez was ultimately apprehended and charged with, among other things, violating section 843.085. The jury convicted Rodriguez of violating the statute. On appeal, Rodriguez argued that section 843.085 was unconstitutional because the statute was impermissibly content-based and overbroad and proscribed conduct protected by the Florida and Federal Constitutions.

The Third District held that section 843.085 was overbroad, first noting that the First Amendment afforded protection to symbolic conduct or expressive conduct as well as to actual speech. The court found that section 843.085(1) was content-based "in that it focuses only on the content of the speech or expression and the direct impact that it has on a viewer." Rodriguez, 906 So.2d at 1088. Because the statute was content-based, the Third District stated that it was subject to strict judicial scrutiny and must be narrowly tailored to promote a compelling governmental interest.

The Third District concluded that section 843.085(1) was unconstitutionally overbroad...