Whiting v. Town of Westerly

• Decision Date: 29 June 1990
• Docket Number: Civ. A. No. 89-347B.
• Parties: Charles WHITING, III, et al., Plaintiffs, v. TOWN OF WESTERLY, et al., Defendants.
• Court: U.S. District Court — District of Rhode Island

743 F. Supp. 97

Charles WHITING, III, et al., Plaintiffs, v. TOWN OF WESTERLY, et al., Defendants.

Civ. A. No. 89-347B.

United States District Court, D. Rhode Island.

June 29, 1990.

Gary Berkowitz, Pawtucket, R.I., Lynette Labinger, Providence, R.I., for plaintiffs.

Maureen McKenna Goldberg, Pawtucket, R.I., for defendants.

OPINION

FRANCIS J. BOYLE, Chief Judge.

Plaintiffs, a certified class, contest the constitutional validity of a Town of Westerly ordinance. Section 19-2 of the Ordinances of the Town of Westerly forbids sleeping in the nighttime in any motor vehicle of any description parked in either a public or semi-public area or upon the grounds of any person in the town.¹ Section 19-3 of the ordinances prohibits sleeping in the nighttime out-of-doors in any public or semi-public area or on the grounds of any person in the town. A penalty of up to twenty (20) dollars is imposed.

Plaintiffs contend that:

1. the ordinance on its face is unconstitutionally overbroad and vague, and

2. that the ordinance, as applied to persons who are not Rhode Island residents, violates the Equal Protection Clause of the fourteenth amendment.

FACTS²

Memorial Day weekend of each year generally signifies the "opening" of beach areas in Rhode Island. Beachgoers prepare for the season by dusting off their beach umbrellas, coolers, and blankets, while children search frantically for their beach pails and shovels, put away at the close of the previous summer. The Westerly Police Department, however, prepares for the beach season in a different manner. Each year between Memorial Day weekend and Labor Day weekend, the Westerly Police Department organizes a detachment of police officers known as the "Beach Patrol" which patrols the Misquamicut Beach area in Westerly, Rhode Island. One purpose of the Beach Patrol is to enforce the challenged ordinances.

On Memorial Day weekend in 1988, plaintiff Charles Whiting, a citizen of Connecticut, travelled to Westerly with a friend intending to stay a day or so and enjoy the beach and other activities. They had no hotel or motel reservations. They tried to rent a room at one hotel near the beach area but there were no vacancies. They did not look beyond the beach area because Mr. Whiting, having consumed alcohol, thought it best not to drive. By 9:30 p.m., the two had decided to spend the night in the back of Mr. Whiting's Chevrolet Blazer Pick-Up Truck, in the "Andrea" parking lot in Westerly.

At approximately 3:30 a.m. on May 30, 1988, Westerly police arrested Mr. Whiting and charged him with violating section 19-2. The police transported Mr. Whiting to the Westerly Police Station and detained him for at least five hours. Later that same morning, he was brought before Justice of the Peace John Adamo and signed a document granting Mr. Adamo power of attorney to enter a plea of guilty or nolo contendere on his behalf.³ Mr. Whiting paid Mr. Adamo twenty (20) dollars cash for bail and fifteen (15) dollars cash for Mr. Adamo's appearance as a Justice of the Peace. He was then released from custody.

On May 31, 1988, Mr. Adamo appeared on behalf of Mr. Whiting in Fourth Division District Court and entered a plea of nolo contendere. Mr. Whiting was adjudged guilty and the case was filed pursuant to state law.⁴

On Fourth of July weekend in 1988, Eric Anderson and a friend travelled to Westerly planning to camp at a campsite for the holiday weekend. Upon arriving, Anderson spoke to a local shopowner who told him he would not find any campsites or any other lodging in Westerly. Based upon this information, Mr. Anderson looked no further for public accommodations. At least once, Mr. Anderson attempted to secure private accommodations at a trailer park owned by a friend, but to no avail.

Sometime after 1:00 a.m. on July 3, 1988, Mr. Anderson parked his van in the Misquamicut Beach parking lot in Westerly, and went to sleep on a mattress in the van. At approximately 3:30 a.m., Westerly police arrested Mr. Anderson and charged him with violating section 19-2 of the town code. He was then transported to the Westerly Police Station and detained for several hours. Save for appearing before a different Justice of the Peace, Santo Turano, and paying twenty-five (25) dollars for Mr. Turano's appearance as a Justice of the Peace, the disposition of Mr. Anderson's case travelled the same path as Mr. Whiting's case.

The parties have stipulated that the stated purpose of the challenged ordinance is the "protection of public peace and health and safety." In addition, the parties agree to the following statistics:

—In 1987, 170 persons were arrested under the challenged ordinance. Of those, 15 were from Rhode Island, with the remainder from out of state. 11 of the Rhode Islanders were given summonses and released. Of the 155 nonresidents, all but two executed the power of attorney before the Justice of the Peace.

— In 1988, 82 persons were arrested under the challenged ordinance. Of those, 14 were from Rhode Island. All but two Rhode Islanders were given summonses. All of the nonresidents executed the power of attorney before the Justice of the Peace, except for one individual ultimately charged with simple assault as well.

— As of May 30, 1989, 16 persons were arrested under the challenged ordinance. All were from Connecticut. All executed the power of attorney before the Justice of the Peace.

Plaintiffs' complaint alleges that the ordinance on its face is unconstitutionally overbroad and vague. In addition, Plaintiffs contend that the ordinance as applied to persons who are not residents of the State of Rhode Island is unconstitutional under the Equal Protection Clause of the fourteenth amendment. Plaintiffs seek declaratory and injunctive relief.

OVERBREADTH AND VAGUENESS

Each of the named Plaintiffs in this action went to the Town of Westerly to enjoy a recreational weekend. Neither of the Plaintiffs had beforehand sought a place to provide an evenings rest. Each sought accommodations and, after a limited effort, found them unavailable. They now contend that the Constitution of the United States provides them with an assurance of an evening's lodging in Westerly.

There are two issues.

I. Whether the enactment is overbroad is the first issue. In considering a facial overbreadth and vagueness challenge, the Court must determine whether the enactment reaches a substantial amount of constitutionally protected conduct. Boos v. Barry, 485 U.S. 312, 329, 108 S.Ct. 1157, 1167-68, 99 L.Ed.2d 333 (1988); Houston v. Hill, 482 U.S. 451, 458-59, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398 (1987); Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). The Court must consider the text of the enactment as well as any limiting constructions the enforcement agency has proffered. Barry, 485 U.S. at 329, 108 S.Ct. at 1167-68; Kolender v. Lawson, 461 U.S. 352, 355, 103 S.Ct. 1855, 1857, 75 L.Ed.2d 903 (1983); Hoffman Estates, 455 U.S. at 494 n. 5, 102 S.Ct. at 1191; Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972). If the law does not reach a substantial amount of constitutionally protected conduct, then the overbreadth challenge fails. Hoffman Estates, 455 U.S. at 494, 102 S.Ct. at 1191.

II. Next, the Court considers the facial vagueness challenge and, if the law implicates no constitutionally protected conduct, the challenge should be upheld only if the law is impermissibly vague in all of its applications. Id. at 495, 102 S.Ct. at 1191. As the court in Hoffman Estates stated, "a plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law." Id.⁵

Plaintiffs do not challenge the ordinance in question on First Amendment grounds. They have made no claim that their sleeping constituted expressive conduct necessarily implicating some First Amendment protection. Rather, Plaintiffs contend that the mere act of sleeping in a public place, without more, is constitutionally protected conduct.

The act of sleeping in a public place, without more, is not constitutionally protected conduct. Indeed, the conduct in question involves travelling to Westerly, making some limited attempt if any to secure lodging for the evening, and lacking success, camping at the beach in one's motor vehicle overnight. Merely sleeping in a public place, absent expressive conduct, is not constitutionally protected activity. Hershey v. City of Clearwater, 834 F.2d 937, 940 n. 5 (11th Cir.1987); People v. Davenport, 222 Cal.Rptr. 736, 738, 176 Cal. App.3d Supp. 10, 13 (Cal.App.Dep't Super. Ct.1985), cert. denied, 475 U.S. 1141, 106 S.Ct. 1794, 90 L.Ed.2d 339 (1986); see also Seeley v. State, 134 Ariz. 263, 267, 655 P.2d 803, 807 (App.1982). Because the Westerly ordinance does not reach a substantial amount of constitutionally protected conduct, Plaintiffs' overbreadth challenge fails.

Plaintiffs predicate their attacks in part upon Hershey v. City of Clearwater, 834 F.2d 937 (11th Cir.1987). This reliance is misplaced. Although appearing initially to support Plaintiffs' assertions, the Hershey decision specifically points out that the sleeping prohibited in the ordinance challenged in that case "appears to be `of the general kind, which enjoys no peculiar constitutional advantage.'" Id. at 940 n. 5 (quoting People v. Davenport, 222 Cal. Rptr. 736, 738, 176 Cal.App.3d Supp. 10, 13 (Cal.App.Dep't Super.Ct.1985), cert. denied, 475 U.S. 1141, 106 S.Ct. 1794, 90 L.Ed.2d 339 (1986)). The court concluded that the overbreadth challenge in that case "would probably fail because the City of Clearwater ordinance did not reach a substantial amount of constitutionally protected activity" and "probably reached no constitutionally protected...