PALMER v. CITY OF EUCLID
Legal provision: Due Process
Argument of Niki Z. Schwartz
Chief Justice Warren E. Burger: We’ll hear arguments next in 143, Palmer against the City of Euclid.
Mr. Schwartz you may proceed whenever you’re ready.
Mr. Niki Z. Schwartz: Mr. Chief Justice and may it please the Court.
The issue in this case is the constitutionality of Section 583.01 (e) of the ordinances of the City of Euclid, Ohio which makes it unlawful for any suspicious person to be within the municipality and Part (e) defining suspicious person as any person who wanders about the streets or other public ways or who is found abroad at later unusual hours in the night without any visible or lawful business and who does not give satisfactory accounting himself.
Now, this question arises on the following facts.
On April 19, 1967, an off duty Euclid policeman who was on his part time job as a patrolman or watchman at a very large apartment complex in the City of Euclid had his concern alerted by noticing a car driving slowly in the parking lot of the apartment complex.
At a speed, he estimated as three to five miles an hour with the lights off.
Secondly, he testified that his suspicion was aroused by the fact that the car stopped and discharged a “colored female” and he knew that no colored female lived in that apartment complex and this aroused his suspicion.
The third thing, he testified that aroused the suspicion was that after discharging the female, the car, which was ultimately determined to be driven by the appellant or defendant here, James Palmer, turned on its lights, pulled down to the street and parked.
Upon approaching the car, the officer testified that he noticed the appellant speaking over a citizen’s band or two-way radio.
As a result of these three things, he asked Palmer to get out of the car, put him up against the car, demanded his license, his driver’s license which was furnished and asked him to explain what he was doing there.
He explained that he had left, discharged the friend, further inquiry about the identity and purpose of the friend resulted in no response.
Justice Byron R. White: Does the record show what happened to the girl?
Mr. Niki Z. Schwartz: The record shows that following the unsatisfactory response as far as the officer was concerned, he marched the defendant into the building at gun point called for assistance from the Police Department and a search was conducted of the entire premises and the girl was not found.
Subsequently, the defendant finally agreed to state where he thought that the girl had gone to specific apartment number.
They went up to that apartment, by this time it was 2:30 or 2:45 to 3:00 in the morning and knocked on the door at that apartment, the police officer.
And a male answered the door and was asked, “Is there a colored female in the premises?”
And upon being informed that the answer was no that officers left continuing to search on the premises for the girl.
Justice Potter Stewart: Does the record show whether there have been any burglary incidents in the area in the immediate past.
Mr. Niki Z. Schwartz: The record shows that there were no reports of any incident of any kind that there was -- not ever any report of any crime having been committed that night.
Now, after Palmer was stopped, frisked, detained, arrested, searched, taken to the police station, interrogated, stolen car sheet checked, it was determined that absolutely no substantive offense had ever occurred and that there was not a (Inaudible) of evidence of any having ever occurred.
And subsequently, Palmer was charged with being a suspicious person in violation of this section.
Now at first blush perhaps, this case seems to be another in the line of cases, testing police investigatory power versus individual liberty, many of which incredibly arise out of the Cleveland area, Mapp versus Ohio, Beck versus Ohio, and Terry versus Ohio.
But there’s one crucial difference in this case.
In those cases, the issue was shall a concededly guilty man go for woman, go free in order to serve some interest of constitutional liberty.
Here, the issue is shall an innocent man be convicted and incarcerated in order to serve some putative interest in law enforcement or maintenance of order.
And I’m prepared to demonstrate that this ordinance on its face and as applied does great violence to hover constitutional rights and with no justification in necessity of law enforcement for maintenance of order.
Justice John M. Harlan: What sentence did this man get?
Mr. Niki Z. Schwartz: The man was sentenced to pay $50.00 fine in cost and to serve 30 days in the Cuyahoga County Jail.
Chief Justice Warren E. Burger: Has he served this?
Mr. Niki Z. Schwartz: No by order of --
Chief Justice Warren E. Burger: Have been stayed.
Mr. Niki Z. Schwartz: By order of Mr. Justice Stewart, the service is sentenced has been stayed and originally pending the filing of the jurisdictional statement and now appending the outcome of the case.
There are three fundamental attacks on this ordinance, on its face and as applied and time perhaps will not permit me to deal with all of them as fully as I might wish.
The first is vagueness.
The rule of void for vagueness serves three primary interests, that a furnishing notice to those who wished to confirm their behavior to law so they might know what they may do and what they may not.
Limit the second purpose is limiting the discretion of law enforcement officers of Courts and juries within some described standards in order to prevent arbitrary and discriminatory enforcement and the third is to prevent the ordinance from being construed too broadly to encompass or trench upon constitutional protected conduct.
Unknown Speaker: (Inaudibe)
Mr. Niki Z. Schwartz: Like what in this particular instance?
Frequently, the document presents a self most often in terms of First Amendment activity.
In this particular instance, the constitutionally protected conduct involved is the right to liberty without -- except upon articulable suspicion or articulable facts that the constitute in effect reasonable suspicion under Terry to justify a stop and frisk, probable cause to believe that a crime has been or is being committed in order to justify an arrest and proof beyond the reasonable doubt that a crime has been committed in order to justify a conviction and incarceration pursuant to that conviction.
And so there’s liberty of movement here or the freedom of movement which is one of the -- of the constitutionally protected interest involve.
They’re constitutionally protect interest of the right to be free of discriminatory enforcement and these interests are served.
These purposes are served by the vagueness doctrine.
Now usually when a case comes here on the issue of vagueness, the whole case turns on -- meaning the single word or phrase as we just saw in the last case, the real questions, what is annoying me and is that sufficiently precise.
Here, we’d got four or five phrases which individually each is vague together, they’re impossible.
Wanders, what is wanders?
What does that mean?
We see in judicial opinions, there are at least three competing interpretations of wander.
In the Ohio Supreme Court decision of Columbus versus DeLong, you have the majority striking down the statute on the ground that wander, by virtue of being defined as aimless motion without any purpose cannot include a criminal purpose, therefore it’s limited to innocent conduct and therefore the ordinance was held unconstitutional.
On the other hand, the dissent says that within the context that wander must necessarily mean or be limited to a criminal purpose wandering for a criminal cases or a wrongful purpose and therefore the ordinance should be upheld.
In Seattle versus Drew the Court struck down a similar ordinance because they said wander can mean either innocent or culpable conduct and in that sense, in being too vague is too broad as well.
A broad at later unusual hours in the night with that visible or lawful business is as simply seems to me a night time version of wandering and without visible or lawful business begs the question as to what it is that’s prohibited and what it is that’s protected.
Is Professional Ricks walking the streets at midnight, visible or lawful business?
When he has no defined purpose, were not answered.
Then of course we come to the most incredibly vague of all phrases and the one that renders the ordinance most effective in my opinion, does not give a satisfactory accounting himself. Satisfactory account to whom, whom may demand it.
Who must be satisfied?
Over what period of time must they be satisfied?
It’s a credible, but untrue account satisfactory.
Is it true but incredible account satisfactory?
It’s purely subjective and purely just throws open the door to the police officer in the first instance.
The judge and/or jury in the second instance to decide whether it’s satisfactory and even to decide who must be satisfied, is the issue at trial, whether the officer was satisfied or is the issue whether judge and jury are satisfied?
Now, the same principles, the same defects in here in discussing this in terms of its propensity for arbitrary and discriminatory enforcement, ordinarily a statute which is inordinately vague simply by virtue of its vagueness facilitates arbitrary or discriminatory enforcement.
But here, explicitly it authorizes arbitrary or subjective enforcement.
What the Court has previously described in other cases as Government by moment to moment opinion of the police officer on the beat.
The law as its drafted on its face can’t possibly be indiscriminately enforced across the board.
It’s inconceivable that that could be done.
The law review literature is replete with discriminatory enforcement of these kinds of ordinances against Hippies, Yippies beatniks, bums, people of unconventional dress, behavior, length of hair and so on and against black --
Chief Justice Warren E. Burger: Would you say counsel about an ordinance as they have increasingly in place of fixed speed limits, reasonable speed under the circumstances, is that not subject to discriminatory enforcement against certain categories of people, basis of race or national origin or what not?
Mr. Niki Z. Schwartz: Well, Ohio has exactly such speed laws and of course any law could be subjected to discriminatory enforcement in the sense of arresting and prosecution and so on.
On the other hand, dealing with the question of was the speed reasonable under the circumstances.
There are objective indicia that one can look at to determine reasonableness.
For example, how many cars were on the highway?
What were the weather conditions?
What was the width to the highway?
How much access was there on the side, the traffic lights?
So and all of these things are objective indicia that one can look at to determine reasonableness.
Chief Justice Warren E. Burger: When you come down to disposition of those cases, is it not true as a practical matter that invariably or almost invariably, the evidence consists of the evidence of the arresting officer and the accused person?
Mr. Niki Z. Schwartz: More often than not that is the case.
Chief Justice Warren E. Burger: Much as you have in this type of situation.
Mr. Niki Z. Schwartz: That’s right.
Chief Justice Warren E. Burger: Each of them is susceptible of abuse.
Mr. Niki Z. Schwartz: I can see, any lose susceptible for abuse.
The question is --
Chief Justice Warren E. Burger: These two are in a very parallel way, aren’t they?
Mr. Niki Z. Schwartz: Well, it’s enormously different in degree if not in kind Your Honor in terms of the propensity of the language to facilitate this kind of thing.
We don’t have to speculate on the capacity for arbitrary enforcement here by, reading by the terms of the other cases or large articles.
We have right in this very case, an example of race being used as a factor.
In fact, I would argue that race is really almost an element of the offense here because this is one of the key factors and why the officer testified that his suspicion was aroused.
In other words, this is a Black person in a White neighborhood at night and he shouldn’t be there.
He’s automatically suspicious by reason of being there.
Justice Potter Stewart: Your client represented himself --
Mr. Niki Z. Schwartz: Yes, he did.
He tried the case himself and he handled the appeals the way through the Ohio Supreme Court.
Justice Potter Stewart: Is he a lawyer?
Mr. Niki Z. Schwartz: No he’s not.
All right, I confess this from reading the record, it’s a fair question whether or not he is.
Justice Potter Stewart: The defendant.
Mr. Niki Z. Schwartz: The remarkable judge for a laymen.
This is the first thing that struck me upon reading the record when he came to me.
But to talk about vagueness --
Justice Potter Stewart: But the companion female, companion ever found or identified?
Mr. Niki Z. Schwartz: No.
Justice Potter Stewart: Just they asked those two bachelors whether she was there and he said no is that it.
Mr. Niki Z. Schwartz: That’s exactly.
Justice Potter Stewart: Are you satisfied with the answer, what if they say they went away?
Mr. Niki Z. Schwartz: They took their word for it.
Chief Justice Warren E. Burger: They have no search warrants of course.
Mr. Niki Z. Schwartz: No they didn’t, although they could conceivably have stationed one officer at the door and sent the other out for search warrant.
But the talk about vagueness here, while the vagueness evils are egregious, it’s the least of the evils because vagueness is subject to, it’s suggested drafting problem.
Subject to being cured by greater precision in drafting, but assume that you could get over all the vagueness hurdles by converting this into more precise language, you still have an ordinance which fundamental purpose is right, because it punishes the arousing of suspicion and the failure or refusal to dispel that suspicion.
And that flies in the face number of important constitutional principles.
As I mentioned earlier, it permits various levels of deprivation of liberty -- permits the ultimate deprivation of liberty, conviction and imprisonment on facts that may not even be sufficient to justify a stop and frisk under Terry.
We don’t have to decide whether it was sufficient to justify a stop and frisk under Terry.
We don’t have to decide whether it was sufficient to justify an arrest under Beck.
What we have to decide is, was there proof beyond a reasonable doubt of criminal activity that justifies the conviction.
And in addition to subverting these standards constitutional derived standards of proof for stop and frisk, arrest and conviction, the burden of proof by reason of the satisfactory account clause is thrust on the defendant.
He’s got to be able to explain away all of the ambiguities or suspicions of his behavior.
As far as the satisfactory account clause, it also has the defect of compelling a violation of the privilege against self-incrimination.
I would rely primarily on the brief on that point.
I will like to deal with the citation of the appellee to the Miranda case here.
This is not a Miranda case.
The issue here is not whether or not statements given by the defendant were sufficient advice and sufficient knowledge of its rights to be able to be introduced into evidence.
The issue rather is whether or not the City of Euclid, multitude and as other city similarly situated, can compel by threat of 60 days imprisonment which is the statutory maximum, although the defendant here was only sentenced to 30 days can compel him to face the choice of either going to jail as a suspicious person for failing to give a satisfactory accounting himself or conversely giving up his privilege against self-incrimination and incriminating himself.
Justice Byron R. White: Could I ask you whether, under this ordinance if someone is found on the streets late at night 2:33 o’clock in the morning and the officer asked him what he’s doing and he’s says none of your business and just remains quite.
Does all the state need to do to prove its case under this ordinance is to show those facts who was found late at night on the streets and he remained immune.
Is that advice some of the states would?
Mr. Niki Z. Schwartz: That’s a good question which I have an impossible time answering because the thing is so vague.
I assumed that in the Euclid Municipal Court one can get a conviction of those facts.
Justice Potter Stewart: But the ordinance says they can’t found on the street without --
Mr. Niki Z. Schwartz: Visible or lawful business.
Justice Potter Stewart: Or lawful business, how does the state satisfy its burden of showing somebody’s on the street without lawful business?
Mr. Niki Z. Schwartz: Without visible or lawful business.
Justice Potter Stewart: Well I know, but that just means lawful business.
Mr. Niki Z. Schwartz: I don’t know how we can just read visible out of it.
Justice Potter Stewart: I mean it doesn’t mean visible and lawful, it says visible or --
Mr. Niki Z. Schwartz: Or lawful.
Justice Potter Stewart: Well the state can certainly say there wasn’t any thing visible about -- he had no business that was visible any.
Mr. Niki Z. Schwartz: That’s right.
Justice Potter Stewart: How about lawful.
How about lawful?
Mr. Niki Z. Schwartz: Well, you see if the visible weren’t in there and the state had the burden of showing that he was engaging an unlawful conduct, it would be a vastly different ordinance --
Justice Potter Stewart: Well I know that--
Mr. Niki Z. Schwartz: But they take the visible are lawful to mean that it’s the burden is on the defendant.
Justice Potter Stewart: Well --
Mr. Niki Z. Schwartz: To demonstrate, -- to manifest his purpose on the street.
Unknown Speaker: Well it doesn’t if the state got some burden to show that he was on the street without lawful business?
Does it have the burden or not that seems like the -- that’s part of the illegality as being on the street without lawful business?
Mr. Niki Z. Schwartz: Well, I read the states case here as consisting of the fact that -- well the officer testified -- the officer testified that no law that he knows off was broken including the minuet parking, driving, traffic and so.
There’s no law to his knowledge broken.
Now, where is the unlawful activity?
Unknown Speaker: Well, he was driving without lights isn’t it?
Mr. Niki Z. Schwartz: In the parking lot, he turned on his lights before he pulled on the street and then on the private parking lot, it was not an offense to drive without light.
The officer testified it’s in the record.
Unknown Speaker: That he was not trespassing either?
Mr. Niki Z. Schwartz: That he was not trespassing either?
Unknown Speaker: Why wasn’t he trespassing that it was a private parking lot?
Mr. Niki Z. Schwartz: He was bringing -- he was bringing a person to the apartment.
Now, we don’t know for what purpose he brought that person to the apartment.
Chief Justice Warren E. Burger: Did he give that explanation or is that yours?
Mr. Niki Z. Schwartz: No, no.
He gave the explanation.
Chief Justice Warren E. Burger: In those terms.
Mr. Niki Z. Schwartz: That he had come -- that he had brought the friend to the apartment.
Now, what he did not explain was who the friend was and what the friend’s purpose was.
Chief Justice Warren E. Burger: So in that posture, the officer could disbelieve him if he wanted and as could the triar of facts, could he not?
Mr. Niki Z. Schwartz: Could disbelieve him on bringing -- the fact that he was bringing the girl.
Chief Justice Warren E. Burger: When he didn’t identify --
Mr. Niki Z. Schwartz: Certainly, certainly they disbelieved him.
He didn’t testify as a matter of fact that at the trial -- when I relate what he said, I’m talking about the officer’s testimony as to what he is alleged to have said on the premises at the time that the violation occurred.
Now, as to trespass, I don’t know any facts that would render this a trespass in a sense that this is an enormous apartment complex in which kind of quasi-public, private parking lot.
When I say private, I mean it’s not a dedicated thoroughfare such that the traffic laws requiring lights at night are applicable.
It’s quasi-public in the sense that it’s an enormous parking lot for the use of residents and visitors as well.
Justice Byron R. White: Can’t you say that it would be all right to drive around without the lights on in that parking lot?
Mr. Niki Z. Schwartz: As far as the law is requiring one to have lights on his car at night is concerned, yes.
That’s the officer’s testimony in the record.
It’s not my interpretation.
Now, having briefly demonstrated, the constitutional defects with this ordinance, both on its face and as applied here, question arises, is there any necessity in the demands or needs of order of law enforcement to justify these infringements.
If there ever was a need for this kind of a law, it’s been dissipated.
The argument for this kind of a law historically has been -- Fourth Amendment concepts of probable cause have been inadequate to allow the police to engage in pre-probable investigation and inquiry.
This Court I think by its decision in the Terry case has taken the question of police right to inquire and to investigate prior to probable cause on a plain in which penalized by itself.
It doesn’t have to be attached to subsequent charge of a substantive offense and there are a host of -- lot of questions unresolved by Terry which don’t have to be resolved here, but without passing on the constitutionality, many of these alternatives such alternatives as the American Law Institutes Model Code of prearraignment procedure, the Uniform Arrest Act, the New York Stop and Frisk Law, the common law authority recognizing Terry versus Ohio in the state version of the case all of these alternatives are available to the City of Euclid, to the state of Ohio, to Law Enforcement Officers are possibly available to them.
Obviating the necessity for making a substantive offense out of what is merely cause to investigate.
Justice Potter Stewart: If you think a state -- our city could have a -- could a city have an ordinance establishing a curfew saying no one should be on the streets after 2 AM, except who were going to or from employment or going to or from a doctor hospital.
Mr. Niki Z. Schwartz: No, I don’t think so.
I think that’s too large in infringement on freedom of movement without some particularized compelling necessity in the circumstances.
Justice Potter Stewart: What if your answer were to the contrary that the city could have that?
Do you think that has any bearing on your case?
Mr. Niki Z. Schwartz: Well, if my answer were that the city could have that, then certain portions of my argument about the defects of this ordinance would be eliminated.
Those that would not would be the complaints about vagueness and the complaints about compelling violation of privilege against self-incrimination.
Justice Thurgood Marshall: Well on your last one.
Assuming we had a statute like that the district and a man would ride the overhaul and walk in front of the maidflower with the woman's sable 2610, do you think the policeman could ask in begging your pardon sir, what you do with that?
Mr. Niki Z. Schwartz: With the woman’s what?
Justice Thurgood Marshall: Sable.
Mr. Niki Z. Schwartz: Oh certainly could ask him.
No question about it.
Justice Thurgood Marshall: That’s the point.
I want to get in this.
Are you objecting to the question the officer asked, are you really objecting to the fact that he was punished?
Mr. Niki Z. Schwartz: I’m not objecting to the officer asking questions.
I’m objecting to the fact that after all the questions are asked and all the searches and frisks and interrogations are conducted, there’s no evidence of a crime having been committed and the man is supposed to go jail for 30 days.
The key point, whole theme of this case is that we’re not talking about the scope of police investigatory power.
That should be dealt with directly by this Court on its own merits and it should not be necessary to have subterfuge substantive offenses in order to deal with the question of what’s the appropriate scope, the least investigated power.
I would like reserve rest of time for rebuttal if I may.
Chief Justice Warren E. Burger: Very well.
Argument of David J. Lombardo
Mr. David J. Lombardo: Mr. Chief Justice please and may it please the Court.
The saying that bad facts make bad law would not apply in this case and I think we would both agree and my adversary and myself that whatever the outcome of this hearing that the fact issue, the fact situation in this case is the classic case of suspicious person arrest.
Justice Potter Stewart: Of what?
Mr. David J. Lombardo: Arrest under this ordinance.
I think this is the type of activity that was intended by the legislation to be prohibited.
So we can't argue that facts are bad.
Again, we’ve got to take in to consideration what the facts are, the time or the morning, 2:30 in the morning.
You have a large apartment complex where the police officer did testify there had been burglaries, larcenies and break-ins, numerous.
We’ve got an automobile without lights moving very slowly.
You have an automobile discharging a woman that the policeman knows not to be a tenant there.
The fact she was colored as used only for identification, I’ll talk more about that later.
Justice Thurgood Marshall: How do you know that she wasn’t a visitor there?
Mr. David J. Lombardo: She could have been because she wasn’t a resident there.
Justice Potter Stewart: Well, if in fact that she was apparent.
Mr. David J. Lombardo: She was a visitor.
Justice Potter Stewart: And whether on a legal or illegal business, she did go into the apartment.
Mr. David J. Lombardo: She was a visitor.
I don’t argue that.
But we knew she wasn’t a resident.
Justice Thurgood Marshall: Why?
Mr. David J. Lombardo: Because there were no colored residents in that apartment at that time.
Justice Thurgood Marshall: And the policeman knows that?
Mr. David J. Lombardo: Yes sir, that’s what he so testified too.
Justice Thurgood Marshall: How many residents were there?
Mr. David J. Lombardo: I think there’s approximately 1500.
Justice Thurgood Marshall: I’m just wondering, did they have blood test and all of this.
Mr. David J. Lombardo: No way.
Now, since you raised that point, we’ll skip through it now.
Yeah, we have an argument in the appellant’s brief that this is a racial type thing that it was brought up in his argument.
I think it would be further from the truth.
The only mention of race in this entire trial or this entire proceeding from a lower court to here was when the police officer said--
Justice Thurgood Marshall: (Inaudible)
Mr. David J. Lombardo: That’s right.
This is one of the things he saw.
Now, suppose I had said, or the policeman had testified that a one arm woman got out of the car and there were one arm woman in the apartment, would then be discriminated against one arm women.
Of course not, we can’t -- you know being Black is a fact and a being yellow is a fact that being Italian was a fact.
Justice Thurgood Marshall: (Inaudible)
Mr. David J. Lombardo: No, all I’m saying is that when a police man sees someone at night, when anyone does for a short period of time, race is sometime no matter what the race, the most obvious thing about the person.
It’s similar to say, I saw a colored man or I saw a Chinese man or I saw Indian, it doesn’t mean there’s discrimination.
Not only that, but we’ve got to look the entire proceedings.
Now, my as my adversary said the appellant is not an attorney.
He represented himself.
They did a marvelous job in the trial and I think it’s obvious from the record of the trial that he was given much more latitude in the trial than any attorney would have been.
I think he was treated fairly and justly and properly all the way through this thing.
All I’m saying that in this case, race is a valid thing to bring up only as to identification of the person.
All right, further getting back to the original of the fact situation.
The driver then stopped his car and after he pulled out to the parking lot, put his license and communicated on a two-way radio which the policeman testified the modern day criminal is using more and more in this criminal activities.
Now at this point, the police officer would have been nothing short of remise had he not proceeded further to interrogate the appellant.
There’s no question that he was proper in going forward as to ascertain just what he was doing there.
The appellant then refused to give an explanation of what he was doing there.
Now, we hear arguments that we cannot leave the determination of what is reasonable and proper to the police officer.
We must leave it to the police officer.
Uniform patrol man is our first line of defense.
If he cannot be trusted to make a judgment on the street then why they are having policeman.
Justice Byron R. White: Was this man a uniform patrol man at this time?
Mr. David J. Lombardo: Yes, he was in uniform Your Honor.
Justice Byron R. White: I thought he was on private duty?
Mr. David J. Lombardo: He was on private duty, but he was in uniform.
Justice Byron R. White: He is not clothed with municipal authority at the time.
Mr. David J. Lombardo: No, but I believe that the police officer is a police officer 24 hours a day as to those crimes involved in the breech of the peace.
Chief Justice Warren E. Burger: Is that true -- are you suggesting that is a proposition of law under the Ohio Statutes.
Mr. David J. Lombardo: Yes Your Honor.
Justice Thurgood Marshall: Is he on private duty for that apartment house?
Mr. David J. Lombardo: Yes, sir.
Justice Thurgood Marshall: (Inaudible).
Mr. David J. Lombardo: At that time it was.
All right, now the argument that we’re asking you to extend Terry in the same fact situation from the right to fact down to making arrest, I can’t argue with because that’s exactly what we’re asking you to do.
Because in the Terry case, the fact situation would have been the same, officer McFaden in that case approached Terry and Terry had not been able to give an explanation of what he was doing there.
Then under this ordinance, he could have arrested him.
I’m not going to stand here and tell you that there is difference because there isn’t.
We’re asking you to extend Terry very simply.
Now, this Court has often said that it’s not so much the wording of an ordinance was determined whether or not its constitutional, but the action that it allows.
The conduct that authorizes.
Again, let’s go back to this fact situation.
You got a policeman who observed some activity that might make him believe that criminal activity was a foot.
He had the right to further investigation.
To uphold the constitutionality, this ordinance would not be an open door to police abuse.
I still think that any --before any conviction could stand under this ordinance, the standard set out in Terry would have to be applied to them.
In other words, you cannot just see a man walking down the street and immediately say what are you doing here and you expect an explanation.
This isn’t it.
The policeman inquired as he did in this case would have to point to you specific articulable facts.
And say, I saw this, this, and this.
Therefore, my suspicions were aroused, I proceeded further.
Justice Thurgood Marshall: Yeah, but in Terry they found a gun in his pocket and they prosecuted it not under that ordinance.
Mr. David J. Lombardo: No, I understand that.
Justice Thurgood Marshall: But the possession of the gun.
Mr. David J. Lombardo: Yes Your Honor.
Justice Thurgood Marshall: It's little different here.
Mr. David J. Lombardo: Oh I agree with you.
Justice Thurgood Marshall: Thank you.
Mr. David J. Lombardo: So, he then goes forward and asks the suspect, “What are you going here?”
If the man refuses or is unable to give a satisfactory account of himself to the policeman and is against the policeman’s judgment at this time as I think it must be.
Then he’s subject to arrest.
It’s necessary that there’ll be a combination of both and both are going to be absolutely necessary for conviction.
First, you’ve got have the ascertainable facts that the policeman observed why did he approach in the first place and then the refusal or inability of the suspect.
Now, if the policeman -- well, strike that.
We do not feel that this is open to discriminatory enforcement.
As was brought up earlier in the case prior to this, if the policeman is going to discriminate, he’s going to discriminate no matter what the law is.
If you mention traffic, of course in any traffic cases, it’s the policeman’s word against the individual’s word and the judge will almost always believe the policeman.
We have Courts and we have juries and this is what this is for, that’s why they are for.
I’m going to be very brief because I think the issue is clear.
You get down again to the old argument, the individual’s rights against society’s rights.
You’ve only got to look at the crime rate on the streets.
I am not trying to but it’s true. You can’t walk down the street in this town or most other big cities.
We’ve got to give the policeman under beat.
That’s your first and sometime your line is defense.
You’ve got to give him the power to combat back this.
Merely patting someone down as like in the Terry case I believe it was.
They said, “Well, if he doesn’t find anything after path, then maybe he should watch him a little bit longer.”
That’s not the answer.
A pack down alone is not going to be enough.
I think in arrest for a misdemeanor is necessary.
Chief Justice Warren E. Burger: Since you indicated that you’re going to brief, I can tell you now, but if you can finish by three minutes to three, we’ll finish the case tonight, otherwise we’ll go over.
Mr. David J. Lombardo: 30 seconds.
Chief Justice Warren E. Burger: Your friend has three minutes left.
Mr. David J. Lombardo: Let me just say this, in Terry and sibr you started -- this Court started to give the streets back to the people.
I would ask you in this case to take the next step and give them back.
Chief Justice Warren E. Burger: Mr. Schwartz, you have three minutes left.
Rebuttal of Niki Z. Schwartz
Mr. Niki Z. Schwartz: There’s also a lot of argument, debate took place before Terry about whether or not the limited intrusion of a stop and a frisk could be justified on less than probable cause.
Now, you’re asked to extend Terry.
You’re asked to extend Terry to permit convictions on facts that it would most under Terry justifies stop and frisk.
They want to extend the Terry to cover Katz. Katz was the third of the three persons frisked by McFaden in the Terry case.
Cops didn’t have a gun, the other two did.
He wants to convict Katz too.
Now, my position boils down to this.
No question about that there’s to crime problem and there’s an interest in reducing it.
But that this ordinance is not necessary to reduce it because of other available means.
You see, while the American Law Institute debates whether or not 20 minutes is a fair time to allow police investigation.
While the uniform arrests that, that allows two hours and he was only three or four states have adapted it in 30 years because of concerned about its unconstitutionality.
The City of Euclid once allowed to detain him overnight convict him and send to jail for 30 days.
While the nation debates preventive detention, the City of Euclid want to prevent its conviction.
That seems to me that the prices to be paid for what the City of Euclid has asked is too great and then it’s not necessary for law enforcement given the fact that there are other alternative means of dealing with regulating and permitting police investigatory power.
Justice Hugo L. Black: Does the record show where Mr. Palmer lived?
Mr. Niki Z. Schwartz: The record I believe, the affidavit shows his address on Clayton Road, Cleveland Ohio.
Justice Hugo L. Black: Does the record show what his occupation was?
Mr. Niki Z. Schwartz: I don’t believe it does.
Chief Justice Warren E. Burger: He gave the police the office three different addresses, did he not?
Mr. Niki Z. Schwartz: Yes, he gave the officer three -- well the police officer testified that he gave him three different addresses when he was being interrogated at the police station which of course was after the arrest had taken place.
The third address, the officer testified was turned out to be a correct address.
There’s no evidence as to whether or not addresses one and two were correct in the sense of being alternative residences or places of business.
Justice Hugo L. Black: Did he ever state who owned the car?
Mr. Niki Z. Schwartz: No, he did not state who owned the car.
The police officer testified that their check of the stolen car sheet revealed that this was not a stolen car or had not been reported as such.
Justice Hugo L. Black: Was it -- did he have a license on it.
Mr. Niki Z. Schwartz: Yes.
Justice Hugo L. Black: And so whose license it was?
Mr. Niki Z. Schwartz: That’s not in the record.
Only the fact that it was not stolen.
Justice Hugo L. Black: That is not what?
Mr. Niki Z. Schwartz: That it was not stolen car is the only fact in the record.
There’s no evidence in the record as to whose car in fact it was.
Chief Justice Warren E. Burger: Was there any evidence in the record linking this car, radio, telephone up with any legitimate business enterprise?
Mr. Niki Z. Schwartz: No there was not which bring us to -- seems to me the question asked by Mr. Justice White earlier as to whether or not visible or lawful goes together.
In other words, where is the burden lie here?
Who has the responsibility of showing that his use of the citizen's band radio was linked up to unlawful enterprise or does he have the burden of proving that it was not linked to unlawful enterprise and that’s one of the defects in the statute.
Justice Hugo L. Black: Does the record show whether he was white appellant?
Mr. Niki Z. Schwartz: Mr. Palmer?
Yes, the record does show and that’s an interesting fact because unfortunately in the printed appendix, it’s hard to tell what is printed and what is form on the affidavit and what is written.
And if you want to confirm this, you can look at the original record.
But under the -- on page three of the appendix, under the affidavit, it calls for information of form, it's his birth date and then the officer fills in 5 17 32, then says sex and the officer puts m-color.
No information or request of the form for the defendant’s race.
It’s wholly gratuitous and I think that’s perhaps not insignificant.
Justice Hugo L. Black: Who made that out?
Mr. Niki Z. Schwartz: Officer Sepanic(ph)
Justice Potter Stewart: And was this the arresting officer?
Mr. Niki Z. Schwartz: Yes.
Justice Potter Stewart: And was he -- he was officer on the police force of Euclid.
Mr. Niki Z. Schwartz: Yes.
Justice Potter Stewart: At Euclid, but he also apparently in another job and that was an employee of this apartment house.
Mr. Niki Z. Schwartz: Right.
Justice Potter Stewart: Right?
Mr. Niki Z. Schwartz: Right.
Justice Potter Stewart: In which job was he performing in either the rest?
Mr. Niki Z. Schwartz: Well, I think it was performing in both of them.
There was a case tried in Cayuga County, a year two ago in which the issue was an off duty police officer was killed under circumstances where no premeditation and deliberation could be shown.
Justice Potter Stewart: So it was the first degree murder case if he was the police officer.
Mr. Niki Z. Schwartz: That’s right.
Justice Potter Stewart: That was carrying out his duty.
Mr. Niki Z. Schwartz: That’s right and the court charged that he was.
Justice Potter Stewart: No I’m sorry.
I don’t remember that case.
But that’s -- I think the law of Ohio generally.
Mr. Niki Z. Schwartz: That’s right.
Justice Potter Stewart: As the police officer as the police officer 24 hours a day, but I wonder if the record shows what his hours were as an employee of the Police Department of Euclid and what his hours were as an employee of this apartment house.
That’s all white apartment house where he kept Negroes out of it.
Mr. Niki Z. Schwartz: This is not just an apartment.
The house is a massive apartment complex which the officer testified at the parking lot for 2000 cars.
Justice Potter Stewart: Yes and which was he that night?
You mean getting salaries from both two employers?
Mr. Niki Z. Schwartz: Well --
Justice Potter Stewart: That’s what the record shows.
Mr. Niki Z. Schwartz: I doubt that he was being paid by the City of Euclid for those precise hours, but he was wearing his uniform --
Chief Justice Warren E. Burger: He was moonlighting on another security job.
Mr. Niki Z. Schwartz: But he’s wearing a City of Euclid police uniform.
He made an arrest of the defendant at gun point and he called in his fellow officers.
It seems to me the --
Justice Potter Stewart: Well the testimony, I don’t have it right here but I -- rather struck me.
He didn’t refer on his fellow officers.
He said, he called the Euclid Police Department as my department as my fellow officers.
I don’t have it here, perhaps I have misread it.
Mr. Niki Z. Schwartz: I don’t recall.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.