Wheeler v. Goodman

Decision Date14 November 1969
Docket NumberCiv. No. 2431.
CourtU.S. District Court — Western District of North Carolina
PartiesMrs. Raymond M. WHEELER, Next Friend of: Harry Anthony Blackburn et al., Plaintiffs, v. J. C. GOODMAN, Jr., as Chief of Police of Charlotte, North Carolina; Robert M. Blackburn, as Clerk of Superior Court, Mecklenburg County, North Carolina; Captain William McCall; Sergeant L. L. McGraw; John Doe, et al.; Richard Roe, et al., and Attorney General of North Carolina, Robert Morgan, Defendants.

George S. Daly, Jr., Casey & Daly, W. Thomas Ray, Adam Stein, Chambers, Stein, Ferguson & Lanning, Charlotte, N. C., and Charles Lambeth, Thomasville, N. C., for plaintiffs.

Robert Morgan, Atty. Gen., of North Carolina, Ralph Moody, Deputy Atty. Gen., Andrew A. Vanore, Jr., Raleigh, N. C., Staff Atty., and W. A. Watts, Charlotte, N. C., for defendants.

Before CRAVEN, Circuit Judge, and JONES and McMILLAN, District Judges.

CRAVEN, Circuit Judge:

This is a suit under the Civil Rights Act, 42 U.S.C.A. § 1983 (1964), to obtain injunctive and other relief and to have the North Carolina vagrancy statute, N.C.Gen.Stat. § 14-336 (1953),1 declared unconstitutional. After a hearing before a single district judge, defendants, the Charlotte, North Carolina, police, were enjoined preliminarily from unconstitutional interrogations, searches, seizures, and arrests, as well as from interference with plaintiffs' freedoms of expression and association. Wheeler v. Goodman, 298 F.Supp. 935 (W.D.N.C.1969). Additionally, they were ordered to keep certain records of plaintiffs' arrest intact and under seal and were restrained from acting under color of the vagrancy statute against plaintiffs, or others. See generally Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), explained in Cameron v. Johnson, 390 U.S. 611, 619, 88 S.Ct. 1335, 20 L.Ed. 2d 182 (1968); 28 U.S.C.A. § 1343 (1962); 28 U.S.C.A. § 2283 (1965). A three-judge court has been convened to consider the constitutionality of the vagrancy statute. We hold N.C.Gen.Stat. § 14-336 unconstitutional because it is vague and overbroad; because it punishes mere status; and because it invidiously discriminates against those without property, all in violation of the Fourteenth Amendment.

I.

The twelve plaintiffs are minors, represented here by next friend. They are commonly called "hippies," a term applied to certain persons, usually young, whose standards, attitudes, and dress differ in certain special ways from the norm. The Charlotte police, on their own initiative, decided that the plaintiffs were undesirable and harassed them systematically. The harassment was designed to discourage the plaintiffs' associations with one another and to dissuade them from visiting and occupying a certain residence leased by several of the plaintiffs for a home. The police action succeeded, and the house was abandoned by the plaintiffs for fear of further harassment.

The police misbehavior was described in almost incredible detail by the district judge. See Wheeler v. Goodman, 298 F. Supp. 935 (W.D.N.C.1967). We need not repeat that description, but we note that there were fifteen instances of police harassment between December 13, 1968, and January 18, 1969, inclusive. The harassment included unlawful threats, interrogations, searches, and seizures, as well as the service of two unlawful eviction notices. During one of these instances, on January 9, 1969, several officers entered the premises leased by plaintiffs and arrested eighteen persons inside the house for vagrancy. The police said they had gone to the residence on a "routine patrol," but the only reason offered for the entry and arrests was some "profane talk," which the police said they overheard while standing in the street outside the house. The police took plaintiffs to the station and thumbprinted them. Several of the plaintiffs were photographed. The cases were heard the next day and all the plaintiffs were released under a "nolle prosequi with leave," which means the prosecution is "suspended," but can be reopened at the state's whim.2

During the period of harassment the police discovered no evidence of illegality. Seemingly, the plaintiffs never committed any crime; nor was there probable cause to suppose that they did.

II.

The constitutionality of the North Carolina vagrancy statute is squarely presented here. Furthermore, the posture of this case does not permit us to stop short of a declaration of constitutional invalidity. Compare Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis dissenting). Had the plaintiffs been convicted, relief might well have been afforded them in habeas corpus, or on appeal within the state system, by the application of exclusionary rules developed to discourage oppressive police action by the exclusion of evidence improperly obtained. Often in such situations it is unnecessary to reach the validity of the underlying criminal statute upon which prosecution was based.

Here, however, there are no convictions and no one is in custody. The plaintiffs were damaged in that they were literally driven from their home. Their injury, is a continuing one: the constant fear of unlawful harassment and arrest without probable cause. It is in this context that we must decide the constitutional validity of the North Carolina vagrancy statute.

We first hold the North Carolina statute void for vagueness and overbreadth. The statute's terms do not give fair notice of what acts are criminally prohibited and are so broad as to embrace, on its face, obviously innocent activities. See Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966); Wright v. Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963). A recent three-judge court case from Kentucky reinforces our holding here. In Baker v. Bindner, 274 F.Supp. 658 (W.D. Ky.1967), the court held Kentucky's vagrancy statute unconstitutional for vagueness and overbreadth. Like the North Carolina statute, the Kentucky statute was framed in terms such as "able-bodied," "honest livelihood," "honest labor," "idle," "dissolute," and "visible means of support." The court, in describing that statute, made a statement we consider apposite here:

This statute is a "catch all" not specific in expression as to what it really seeks to prohibit nor what type of conduct is violative of the prohibition. Perhaps such was its aim and intent; that it snare those felt to be vaguely undesirable. 274 F.Supp. at 662.

Words and phrases such as "able-bodied," "idleness," "honest and reputable livelihood," "immoral and profligate," "visible means of support," "lewd and disorderly," "assignation houses," and like terms provide no ascertainable standard to which men of common intelligence can adhere in order to avoid the statute's proscriptions. Such terms create a statute of such breadth that it infringes on constitutionally protected rights under the First, Fourth, Fifth and Fourteenth Amendments. Plaintiffs, as everyone else, are entitled to be free from unconstitutional searches, seizures, and arrests, as well as from inhibitions upon their freedoms of expression and association imposed by the police through use of the vagrancy statute. No North Carolina decision has construed away these constitutional defects, which are apparent on the face of the statute.3

In many ways the case before us is similar to Wright v. Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963). In Wright, six Negro youths were arrested for playing basketball in a "white" park. They were convicted of "breach of the peace" on the testimony by the police that proved the boys had been arrested only because they were black. The United States Supreme Court declared the Georgia breach of the peace statute4 unconstitutional for vagueness as applied to those facts5

Here plaintiffs' real offense (to the police) consisted of their being hippies. They were at home—not wandering about idly or otherwise. It was enough to initiate oppressive police action that plaintiffs seemed "vaguely undesirable," just as the Negroes in Wright seemed undesirable in a "white" park.

Freedom to conform to community behavior patterns is not liberty, but state regimentation. There can never be total freedom of action for the individual, since behavior that is harmful to others cannot be permitted. But toleration of nonconformity is the test of a mature, established government. In the United States belief and noninjurious behavior are not punishable. A man is free to be a hippie, a Methodist, a Jew, a Black Panther, a Kiwanian, or even a Communist, so long as his conduct does not imperil others, or infringe upon their rights. In short, it is no crime to be a hippie. Hughes v. Rizzo, 282 F.Supp. 881, 884 (E.D.Penn.1968).

The equal protection clause of the Fourteenth Amendment requires that a statutory classification be reasonable, as well as necessary to accomplish a permissible state policy. McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L. Ed.2d 222 (1964). Sections 1 through 4 and 6 of the vagrancy statute are written in terms of "classes." Those with property are exempt and may live idly, blessed by the criminal law. Those without property must be gainfully employed, and it is no excuse that there may be no jobs available. If Washington decides to cool the economy by permitting unemployment to rise from three to five percent, the number of vagrants will increase considerably, for criminal intent is not an element of the offense. Under Section 3 of the statute, for example, it is enough for guilt that a man (1) be able to work, (2) lack property, and (3) have no fair, honest job. To make poverty and misfortune criminal is contrary to our fundamental beliefs, and to arrest and prosecute a person under this...

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