PAPACHRISTOU v. CITY OF JACKSONVILLE

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Argument of Samuel S. Jacobson

Chief Justice Warren E. Burger: We will hear arguments next in Number 5030, Papachristou against Jacksonville.

Mr. Jacobson, you may proceed.

Mr. Samuel S. Jacobson: Mr. Chief Justice and may it please the Court.

This case involves the conviction of eight persons for vagrancy in the Municipal Court of the City of Jacksonville, Florida under the Jacksonville Vagrancy Ordinance.

Petitioners and the Trial Court and through the Florida appellant system contended that the ordinance upon which they were convicted was facially invalid and they are now here on a writ of certiorari to the First District Court of Appeals, State of Florida where they began off with the same contentions.

Unknown Speaker: In your brief you talked about the ordinance and for reasons that I think and I understand also the State statute, very similar one which is assimilated --

Mr. Samuel S. Jacobson: Right.

I was just going to mention that of -- we treated that on the possibility that the City might have kept following back after our brief was filed on the State statute that --

Unknown Speaker: Might have --

Mr. Samuel S. Jacobson: They have not done so and I do not think the State’s statute is involved in this case.

Unknown Speaker: So it is common ground now if the -- what the issue here is the ordinance.

Mr. Samuel S. Jacobson: They are very similar so that I do not think it makes much different but there is no question that the statute is not involved now.

The only contention that we do offer is that the City Ordinance is on its face unconstitutional and invalid.

We contend at the same time that the whole ordinance is unconstitutional.

We argue that the petitioners in this case were convicted generally of vagrancy at least cannot be said this with regard to seven of them that they were convicted under any specific sub-part of the ordinance in question and that as a result under this Court’s previous rulings that they are able to show that any part of the general legislation is unconstitutional then they are entitled to a reversal of the acquittal.

Because our attack is limited to the facial validity of the ordinance, I do not propose to go into the statements of facts that were set out by stipulation with the City in the petitioners’ brief unless there is some question about one particular case from any member of Court.

Unknown Speaker: Yes.

I have one question.

One of the petitioners here is Brown.

Mr. Samuel S. Jacobson: Yes sir.

Unknown Speaker: Was Brown loitering?

Mr. Samuel S. Jacobson: The evidence was that Brown came out of a hotel which was suppose to be of low repute and that as he walked out of the hotel he was moving and it was late at night and then he had something that resembled money in his hands and that two police officers who were there were suspicious of him and they called -- they then called him over as he walked down the street unless his movement down the street could be considered loitering, I do not know that there would be any evidence of loitering in the case.

Unknown Speaker: Well, my impression is that perhaps you could talk about it later is that the Brown situation is certainly different from those of the others.

Mr. Samuel S. Jacobson: Brown situation is added to round off the package of these cases because we assume that the City would contend that there were circumstances in which something like vagrancy statute and ordinance would be required through offenders or hardcore criminal and we did want to bring in instance of at least that sort of alleged situation before the Court.

Unknown Speaker: Well, putting it another way I think that Brown were here alone, his posture would be much more difficult comparatively.

Mr. Samuel S. Jacobson: I think that if Brown were here alone his case would not be nearly so appealing as the other people, some of them who suffered really blatant depression though.

I do not think however that the grossness of Brown’s character and his testimony against him would really affect the attack on the facial validity of the ordinance.

Unknown Speaker: (Inaudible)

Mr. Samuel S. Jacobson: Yes sir.

Narcotics charge was brought against him, was subsequently dismissed because in the code of proper jurisdiction for that charge it was found that the narcotics had been found by reason of an unreasonable search because it was being stopped from the occasional questioning.

Chief Justice Warren E. Burger: Was this ordinance something adopted from one of the early colonial ordinances or from something in England?

Mr. Samuel S. Jacobson: It goes back farther then the earlier colonial ordinances Mr. Chief Justice, it is very strikingly similar to an ordinance of 1597 that brought together the Old English Legislation up to that date of the statute of Elizabeth.

One of the commentators in fact pointed out the striking similarity between this legislation and that.

Unknown Speaker: When was it adopted?

Mr. Samuel S. Jacobson: I have not been able to ascertain that. I tried to find out but Jacksonville like a lot of small towns had a devastating fire at one time that burned down the courthouse.

I -- The own

Unknown Speaker: (Inaudible) was the whole library.

Mr. Samuel S. Jacobson: I have not been able to find it.

I have checked with the City Attorney’s Office and went back and reviewed all available records, I could find suggestions to it and can say that it came into existence in the early part of the century.

But precisely when, we were just able to ascertain.

Unknown Speaker: I believe it was like this in 1597 or something -- .

Unknown Speaker: Of course it was recently amended, was it not?

Modernized by eliminating the word jiggly (ph)?

Mr. Samuel S. Jacobson: Yes sir.

That is correct.

Unknown Speaker: But it left rogues and vagabonds in.

Mr. Samuel S. Jacobson: And considerably more for.

Unknown Speaker: Well, what is this vagrancy?

Mr. Samuel S. Jacobson: We contend that there is no such thing as vagrancy as prowling by auto, really a --

Justice Thurgood Marshall: How can you be vagrant with your own officers?

Mr. Samuel S. Jacobson: It does not make any difference.

In Florida, I had mentioned the President of the United States in the City of Jacksonville could be a vagrant if assuming that there is any ascertainable statute in this ordinance under certain circumstances --

Unknown Speaker: How about persons able to work who are actually living upon the earnings of their wives?

Mr. Samuel S. Jacobson: That goes to our contention that the ordinance is unconstitutionally vague.

And more than that --

Unknown Speaker: Not very vague.

Mr. Samuel S. Jacobson: Well, who was able to work and what is officially living on the earnings of one’s wives and minor children?

That is what we contend, we further contend that that invades restricted area of privacy that the State is not entitled to hold.

When all this said and done, it is difficult to understand why the vagrancy concept is persistent for as long as it had any way of the -- the plain fact of the matter is that it was born in the peculiar socio-economic needs of Feudal England and Elizabethan England broadened over a period of some 200 or 300 years all going back 400 or 500 years before now and really has no application to the current needs of our society and more than is offensive in many of our settled and fundamental notions of democracy and further than that it has been criticized almost universally by the commentators and in recent years by the State Courts and Lower Federal Courts in that occasions considering on the merits.

And yet, even though the Florida ordinance and the Jacksonville’s -- the Florida statute and Jacksonville ordinance which is really derived from the Florida statute are probably the most arcades of all of the State statutes, the Florida system has tenaciously functional -- .

Unknown Speaker: Or is it only -- it is far from a dead letter though?

Mr. Samuel S. Jacobson: Not at all.

Unknown Speaker: That I read somewhere in these papers, that there are hundreds of arrests under the statute, under this ordinance every year, are they not?

Mr. Samuel S. Jacobson: In the City of Jacksonville alone in the first ten months of 1971 there had been 986 arrests.

I do not know how many had been over the State and the last figures published by the Federal Bureau of Investigation, the last crime statistics for the nation as a whole and statistics covering approximately a hundred and forty million people, there were over a hundred and six thousands arrests, that was in 1959.

Unknown Speaker: But under various statutes and ordinance?

Mr. Samuel S. Jacobson: And it -- across the country, yes sir.

Unknown Speaker: And under this particular ordinance which you tell us is so arcade and acknowledged, it seems to be a very actively utilized legislation?

Mr. Samuel S. Jacobson: Very aggressively utilized.

Not only are there arrests, there are also substantial conviction with jail time imposed.

Unknown Speaker: For there is a class B offense, what is the maximum, I see it now 90 days and $500.00?

Mr. Samuel S. Jacobson: At the time of these cases, since then in order to avoid the Fifth Circuit’s ruling with its regard to the right of counsel and petty offenses which was before the Court.

On Monday, it is the maximum if they are not limited to 75 days with no right of aggregation though, offense is, flat 75 day maximum.

Unknown Speaker: $450?

Mr. Samuel S. Jacobson: Yes sir.

That was because of somewhat probably dictum in Fifth Circuit cases saying that a $500.00 fine activated the right to counsel.

We contend that the legislation is invalid on several constitutional basis, the first one and the easiest one is -- that it is void for vagueness.

This Court, going back as far as 50 years ago in Connally versus General Construction Company said that legislation required that a normal and ordinary person guesses to its meaning and about which was reasonable -- might differ was unconstitutionality vague.

It would seem to us that the requirement that there be definiteness in a criminal statute or a statute of this sort, really is necessary for basically three functions.

One, to provide notice to affected persons, two, to provide ascertainable standards of enforcement for the people who are charged with enforcement and, three, to provide a breathing space or to eliminate chill with people who would wish to exercise preferred rights or constitutionally guaranteed rights.

The first question, that is what this legislation provides notice, almost answers itself.

It is really impossible to read the legislation and be able to put any definite meaning on virtually anyone of the various subparts.

If you begin with the initial provision of rogues, I do not know who could define what a rogue is and if he moves through and ends with the provision that Mr. Justice Brennan spoke up dealing with able bodied people who habitually live on the earnings of their wives or minor children, I do not know that anybody can put any precise definition on that language.

Certainly it is clear that the ordinance is a good deal, more vague and elusive than the ordinance or the statute that was struck down some 30 or 40 years ago by this Court in Lanzetta versus New Jersey dealing with people who associate themselves with gangs of more than three or more persons.

Unknown Speaker: Are you asking us to strike it down without more or just strike it down as it would apply to the civil cases?

Mr. Samuel S. Jacobson: We are asking you to strike it down independently of the applications in these cases.

Unknown Speaker: So under -- no one was convicted of being a rogue or vagabond?

Mr. Samuel S. Jacobson: No sir.

Unknown Speaker: And yet you want us to strike that?

Mr. Samuel S. Jacobson: We contend --

Unknown Speaker: How can -- how do we suppose to use that ?

Mr. Samuel S. Jacobson: Well, in two ways, in the beginning these people were charged flatly with vagrancy.

It is our contention there is language which appears on the docket entry which forms the charging instrument in the municipal court --

Unknown Speaker: And that is what you suggest is in effect of charge with every one of these things?

Mr. Samuel S. Jacobson: No.

We say that that does not limit it.

That for example as Mr. Justice Marshall pointed out, there are some of these people who were charged with vagrancy - prowling by auto.

We say that that is simply an explanatory statement by the arresting police officer regarded as surplus by the Court.

It is not legally limiting to the charge at all.

Unknown Speaker: There is no reference in the ordinance that it was a prowling by auto?

Mr. Samuel S. Jacobson: That is right.

For which reason, we contend that they were in effect charged with vagrancy generally that --

Unknown Speaker: Which means that everything that is direct, is that right?

Mr. Samuel S. Jacobson: Correct.

Chief Justice Warren E. Burger: Do you contend that no one could ever be convicted lawfully, constitutionally for any act under this ordinance?

Mr. Samuel S. Jacobson: Very definitely.

We contend that no one could ever know what is to be prescribed by this ordinance.

Chief Justice Warren E. Burger: I do not know what a common drunkard as distinguished from an uncommon one or habitual one but those men are drunk on the street and on the sidewalk completely in a coma, could he be arrested under the statute?

Mr. Samuel S. Jacobson: Ordinarily, he is not.

There is a specifically --

Chief Justice Warren E. Burger: But could he be?

Mr. Samuel S. Jacobson: Presumably he could be.

I am not able to answer –

Chief Justice Warren E. Burger: Would that be invalid as applied with him.

Mr. Samuel S. Jacobson: I would say so because he has no way of knowing before he gets himself in that state, what a common drunkard is and whether he is going to be subject to the ordinance, if he puts himself in that position.

Yet --

Unknown Speaker: Jimmy Lee Smith and that according to the State, would charge vagrancy case vagabond.

Mr. Samuel S. Jacobson: Jimmy Lee Smith is the only one that is not in the category that I spoke of.

He is charged with something that is specifically according to the ordinance.

Unknown Speaker: Now, what about those who are charged vagrancy - common thief, there is no common thief with the --

Mr. Samuel S. Jacobson: No sir.

Unknown Speaker: And how about the loitering, is that okay?

Mr. Samuel S. Jacobson: No sir.

One man is charged with disorderly loitering on the street and there is something in there that relates to disorderly people.

But there is nothing on loitering --

Unknown Speaker: But what is (Inaudible)

Mr. Samuel S. Jacobson: I do not know.

It has no basis in the ordinance and that is why we contend that it really simply, if it was legally limiting in any way then our motion to dismiss at the prowl would have been acquired and been granted.

I will say this.

At the time the legislation was begun, there was a category Florida law known as common thief which persisted up until the early part of the century providing that anybody who had can convict of theft constituting a felony for two times or more became a common thief and was subject to 20 years of imprisonment.

That was in existence at the time this legislation was passed and this legislation do not refer to --

Unknown Speaker: You now insisted that was a resit of a statute -- was it not?

Mr. Samuel S. Jacobson: Crude one

Unknown Speaker: What -- pardon?

Mr. Samuel S. Jacobson: A crude one.

Crude resit of the statute.

Unknown Speaker: Yes.

But you are not telling us that somebody who has been convicted and served whatever his punishment was, suppose twice for a theft then could be arrested as a common thief and -- on that charge, are you?

Mr. Samuel S. Jacobson: And at that time that was the case.

Yes, if you --

Unknown Speaker: Let us say he has been convicted and sentenced for five years imprisonment that he served once for theft and then he was guilty of theft again and serves his sentence for about another five years then at anytime he walks around Jacksonville he could be -- could he be arrested as a common thief and charged with it and sent to prison again?

Mr. Samuel S. Jacobson: That was a State statute, any time he walked around the State of Florida.

That statute is no longer in effect but we have the same thing being done in a municipal ordinance in this instance.

He could only be sent to jail for 75 days but if he has been guilty of some sort of thief whether theft whether he has been convicted of it or not, it might be contended that he was in the thieves calender --

Chief Justice Warren E. Burger: But your point is, you do not have that here because it is not that specific.

You do not know what it means, it is too vague.

That is what you are arguing, is it not

Mr. Samuel S. Jacobson: My point is that we do not know what common thief is, some or two of these individuals were charged of being common thieves.

And if that has no reference to the ordinance, the ordinance does refer to thieves and the ordinance would have the effect that you have spoken of for people who might be considered within the category of thieves whatever that is.

The vagrancy is a continuing offense if somebody had committed a theft or has been convicted of a theft for two or three, whether -- however long ago it had been or however minor it has been or however much more he has been convicted of it, he is subject to continuing incarceration.

Unknown Speaker: Everyday, could he be arrested?

Mr. Samuel S. Jacobson: He cannot walk the street of Jacksonville without being subject to arrest.

If this legislation was out.

He can serve 75 days and immediately on release and subject to an arrest.

Chief Justice Warren E. Burger: I suppose then the more he gets arrested the easier it is to sustain the charge because they can identify him.

Mr. Samuel S. Jacobson: The more confirmed it is.

Yes sir.

Chief Justice Warren E. Burger: That makes it common then by repetition in effects, is it not?

Mr. Samuel S. Jacobson: I am not able to say, Mr. Chief Justice.

Nobody knows, that is precisely --

Chief Justice Warren E. Burger: I suppose in the archaic language used in this ordinance and in the statute, common must have meant at the time that it was originally written commonly known to be that kind of a person.

Mr. Samuel S. Jacobson: No.

That is the point.

There is no reference to common in this ordinance, this legislation.

In subprior legislation that was in inexistence --

Chief Justice Warren E. Burger: Well, there is common drunkard.

Mr. Samuel S. Jacobson: That is true.

I am speaking with regard to thieves.

Chief Justice Warren E. Burger: Oh!

Mr. Samuel S. Jacobson: That is true.

But there, there was a legislative definition of what common law is.

I do not know --

Chief Justice Warren E. Burger: I suppose what they call the common drunkard in that day is an alcoholic, an alcoholic today, men constantly getting drunk.

Mr. Samuel S. Jacobson: We can only suppose.

That is a good point.

With regard to the vagueness point, we think that the merit was capsulized very well by Mr. Justice Frankfurter in his dissenting opinion in Winters versus New York in 1940 something.

He there pointed out that this type of legislation falls in the unique category that -- it is perfectly designed to be vague, purposely designed to be open, and it is significance that Mr. Justice Frankfurter did that and it is further significant that he did it in the circumstances in which he did because he was there dissenting from a majority holding that legislation was unconstitutionally vague and he had catalogued the reasons why the Court should be very hesitant to declare a legislation unconstitutionally vague and he specified as an exception the area of vagrancy in which he said within a unique category, by itself it was egregiously bad.

In addition to the problem of lack of notice to affected persons we also have a problem that is presented by lack of some sort of enforcement standards.

There is no way.

And the police officer or jury and municipal judge or anybody else could know what is intended at.

And this in and of itself and by -- stand unless a discriminatory enforcement especially when we have legislation of the ultimate -- sort of that we have here that can be directed and applied to unconventional or unpopular or unestablished people of the sort -- quite of these anyway from people who are or not willing to be broadminded than others.

Apparently the legislation, because of its breadth and broadness, necessarily must restrict people.

In the attempted exercise and the desired exercise, the rights that are preserved to them without question about the constitution, certainly the right of travel is drawn into question by the provision against wandering from place to place for example.

And we have enumerated others in our brief with the suggestion how they might be similarly effective.

Apart from that contention, we also contend under a broad grouping that we called abuse of police power that the ordinance is constitutionally invalid in other respects.

We contend first that insofar as it relates to people who are in the category of Mr. Justice Brennan spoke off living on the earnings of their wives and so on that it invades the zone of privacy that was thought to be secured by Griswold versus Connecticut.

Further even in the part of the ordinance which deals with thieves and gamblers and what have you which might be outside that area, the legislation is still overbroad because of the completeness of its application.

The point that Mr. Justice Stewart was speaking of where it can be applied recurrently over and over again against one individual, so that he becomes permanently an outcast and permanently subject to incarceration.

In this regard, it is significant to note that the only justification offered for that kind of breadth and scope by the City of Jacksonville its prime control and it is significant that they are ample prime control methods available to the City of Jacksonville or the State of Florida that can accomplish the same purposes that this legislation can accomplish without nearly the oppression to human and individual rights.

We say also as a third major point and related to the abuse of police power, that really, the legislation is no more than a legislative declaration that some people are suspicious per se, that some people are tending the crime per se and if they must be suppressed at the outset, he independently of any act or an issue on that part.

This is actually borne out by the social history of the legislation by the contention that is made by the City expressed in its brief and by the history of application well documented by boards such as the President’s commission on law enforcement and the American Bar Association’s Foundation For Criminal Justice which have all found that the legislation is used primarily for the arrest of people on suspicion only when police officers require or make ways and they cannot find anything else to use -- its grounds for an arrest.

But we say that this pattern in tradition of use, has become inevitable part of the statute and in fact, it has resulted because it was built into the statutes or into the ordinance in the first the instance and it would only be inevitable result -- and will continue unless the legislation is now struck down.

I would like to reserve the remainder of time.

Chief Justice Warren E. Burger: Very well, Mr. Jacobson.

Mr. Austin.

Argument of T. Edward Austin, Jr.

Mr. T. Edward Austin, Jr.: Mr. Chief Justice, may it please the Court.

The attack, assault on the Jacksonville Vagrancy Ordinance as it is defined is not unique.

It has been attacked and assaulted up through the Florida Appellate Structure.

It has been a similar ordinances from Miami have been declared unconstitutional by the Supreme Court of the State of Florida.

The Supreme Court of the Florida has laid down a standard as specific as you can get in this type of a situation as to when this particular type of ordinance or statute will be enforced.

And has spelled out that it would be cautiously and sparingly used and upon vagrants -- or vagrancies of their own volition and this has been reaffirmed by the Supreme Court after it was first pronounced in 1965.

This particular case and incidentally Your Honors the Florida Supreme Court has in previous occasions stricken or reversed the trial courts for the unconstitutional application of this particular ordinance.

Chief Justice Warren E. Burger: Has it ever set aside any of these ordinances cast in archaic terms?

Mr. T. Edward Austin, Jr.: I know of none that they have stricken per se Your Honor.

Justice Ervin, whom I consider a very enlightened jurist -- our Supreme Court has acknowledged that certain sections of the vagrancy statute or the vagrancy ordinance have simply fallen and he views as has been the situation in hundreds of our State statutes which are now being studied and being revised by our legislature at the present time.

He acknowledges in one of his opinions that gave us caution and guidance in this area that the -- if the facts did not support the conviction, if the Court should not hesitate to strike him down it may unconstitutionally apply.

Unknown Speaker: (Inaudible)

Mr. T. Edward Austin, Jr.: Your Honor, I assume that it came in under the portion of the ordinance which goes to wandering and strolling about from place to place without unlawful purpose.

I think the idea of saying that a vagrant must be poor or that this is applied just to poor people, Your Honor is not the intention of the legislature or the legislative --

Justice Thurgood Marshall: So why is it called a vagrant statute?

Mr. T. Edward Austin, Jr.: Your Honor, I am not so sure that --

Justice Thurgood Marshall: Well, maybe you can help me, what is an habitual loafers, you and I know loafers to what are habitual loafers.

Mr. T. Edward Austin, Jr.: Your Honor it is defined down through this -- let me say this and I am not evading your question, this language was in existence.

In an answer to your previous question, about a hundred years ago, 19 -- 1880’s --

Justice Thurgood Marshall: And this phrase was privy if the person goes back to the 1500.

Mr. T. Edward Austin, Jr.: Yes sir.

And it was in existence when the --

Unknown Speaker: (Inaudible)

Mr. T. Edward Austin, Jr.: Yes sir.

It was in existence before the --

Unknown Speaker: It was reached in a recent opinion.

Mr. T. Edward Austin, Jr.: Well, I just do not know that just because something is old Your Honor that it is bad.

The constitution of the United States is old and -- we went through Black Law Dictionary, we went through Webster’s Dictionary and words and phrases and we have no trouble defining who these people are.

And we think that they are -- or advised who they are.

Now I would be --

Justice Thurgood Marshall: How about people that go to their clubs, their private clubs “where else all these vagrancies (Inaudible)”, are they vagrant?

Mr. T. Edward Austin, Jr.: No sir, Your Honor.

That would be --

Justice Thurgood Marshall: Why not?

Mr. T. Edward Austin, Jr.: I think that would be an unconstitutional application of the statute.

I do not think that Florida would hesitate a second to strike it down.

Justice Thurgood Marshall: Do I understand, your total defense of the statute could be that the Supreme Court has told the law enforcement official to be careful how you use it?

Is that your defense?

Mr. T. Edward Austin, Jr.: No sir.

Justice Thurgood Marshall: What is your defense for this particular ordinance?

Mr. T. Edward Austin, Jr.: There are certain parts of this ordinance that have incidentally Your Honor, our Supreme Court has told us that they considered unconstitutional a statute that made a person explain why they were out of place which seems to be the model penal code's approach to it as violative of the Fifth Amendment.

So we sort of do not know what to do and the Supreme Court of the State of Florida has told us the best thing we have is the vagrancy statute which has been upheld in a large number of States and therefore why do you not use it since it has been tried and tested.

But it did not delineate or pull out certain words that should have been omitted.

I think that the legislature, I would be first to -- I had been candid with the Court to say that the legislature should delete some of these words.

Justice Thurgood Marshall: Well, it did.

They look at the judgement.

Mr. T. Edward Austin, Jr.: That was the City counsel Your Honor.

I will stipulate that some of the words should come out of the ordinance.

And I think legislatively it should come whether or not the entire ordinance goes to the police power of the State, the very heart of the police power of the State and the city is something else again and I think that it does.

But let me, if I may say how this case got here.

We have a very fine judge on our Circuit Court bench that reviewed this case when it was brought over to him from the Municipal Court.

The only thing that he was permitted to consider was the constitutionality of the statute on its face.

Then it went to the District Court of Appeals and in the petitioner’s brief the only thing he asked for was that they consider the constitutionality of the statute on its face.

At no place did the Florida Court get to look at these facts.

I will be candid with the Court.

They have made allegations here that they are not even under the ordinance and should have been reversed and the first appellate step in the Florida Appellate Structure should have been permitted and would have in my opinion directed the Municipal Court to straighten that out.

There were no prosecutors in this Court at that time.

And they go in and it is an unfortunate situation that a Municipal Courts run the way they did.

But Mr. Jacobson makes a big thing out of 900 and some vagrancy arrests this year, we have 550,000 people in our community.

That is approximately three a day.

And let me point out that in the State of Florida, you cannot make an arrest for many, many of the things that are mentioned in the statute unless they are permitted in the presence of the officer, only authority.

If it is a misdemeanor or the violation of Municipal Ordinance, if the officer is 30 seconds late, he is required to go around to a magistrate and get a warrant.

So, he does use this and then the vagrancy ordinance and then the charge is changed as is often the case in the administration of criminal justice.

So out of the approximately three arrests a day, many of them, on the docket, you see, the next morning they would be changed although the arrest was vagrancy because he was 30 seconds late in getting to the same where he was been abroad with the evidence obvious and the people giving the officer good grounds to make an arrest except he just does not have time to get a warrant.

And it is a very practical necessary ordinance for the maintenance of public order in Jacksonville, Florida.

Just because it is old, stipulating that the legislature should strike some of the verdict.

Just because it is old, would not necessarily seem to be grounds for reversing it.

Chief Justice Warren E. Burger: Well, I think that suggestions about the age of the statutes and the ordinance Mr. Austin are directed to the fact that it was using terms which today are labeled archaic in dictionaries and in common understanding.

I do not think anyone is concerned about its age per se that only that it uses language from another age.

Mr. T. Edward Austin, Jr.: Your Honor if this Court opens the door to the Florida Legislative redrafting session we today are now going into by simply taking from the first Court, no chance to look at the facts.

District Court of Appeal, no chance to look at the fact and this Court starts looking in to rewriting the Florida Code, we will find about 200 statutes that need to have the language updated.

And this is no exception.

Unknown Speaker: Well, actually the United States constitution is --

Mr. T. Edward Austin, Jr.: I respectfully submit Your Honor the proper function --

Unknown Speaker: That it was written in the 18th century.

Mr. T. Edward Austin, Jr.: Yes sir, Your Honor.

I respectfully submit that this is a proper function for the legislature.

They are getting to it.

And amazingly they are getting to it right now and Mr. Jacobson is here to redrafting and getting our code, we would even obtain federal funds for our State legislature to study our criminal code and to bring it up to date and to get rid of this archaic language.

But I submit that --

Unknown Speaker: What your legislature is doing is get rid of this fact?

Mr. T. Edward Austin, Jr.: Yes, yes.

Your Honor I have absolutely no doubt, I am general counsel for the City, I have absolutely no doubt that when some guidance comes to us from some place that we will adopt proper language.

I submit that in studying that the model penal code, the draft of 1969, that some scholar drafted that it will probably fall from constitutionality because it permits a man to be detained for 20 minutes just because he acts suspicious and so I do not know --

Unknown Speaker: No.

I am just a little puzzled.

You suggest that the Florida legislation, you have seen some of these in other cases argued for the last couple of weeks, currently there is some very active working under the criminal code.

But that may do something with this provision of the statute does not mean necessarily that Jacksonville, is going to (Inaudible) with the ordinance code.

What we have recoursed is only the ordinance, is it not?

Mr. T. Edward Austin, Jr.: Yes Your Honor.

And in those places where the archaic language appears, if it is a policy of this Court, I would stipulate that it be stricken, if that is the policy of this Court.

I do not think it is before this Court, but if that is the policy of this Court I will stipulate to archaic language being stricken.

I think the next case before you is very, very critical.

The prowling and loitering without a lawful purpose or as archaic said with an unlawful purpose, I think that the power to make the arrest in the places that they are most normally made and incidentally these are obviously from the vast number of cases, the worst possible factual situations that could have gotten before this Court.

And I submit that the Florida Court would have never let them get here.

It would have been reversed immediately by the District Court of Appeals because they do not even charge under the ordinance.

They miss the ordinance and I think this is -- the petitioner is asking you for the first time.

This Court in a Florida case reversed only unconstitutional application in Johnson in 1967, reversed on the unconstitutional application of the Florida vagrancy statute and had the constitutionality of Florida vagrancy statute before it.

Now, we had the guidance of this Court, we had the guidance of the Florida Supreme Court that the trial judges and the appellate judges would reverse on the unconstitutional application of the facts.

And if on these cases, if they are properly before you, I will stipulate that they were not unconstitutionally applied.

Chief Justice Warren E. Burger: Well, I am not sure I understood your observation about that the Florida Courts would have stricken this, had they had the chance, did not the First District Court of Appeals --

Mr. T. Edward Austin, Jr.: No sir.

No sir Your Honor.

Unknown Speaker: How about this case, where does this case come from to us?

Mr. T. Edward Austin, Jr.: From the District Court of Appeals and the petitioner said the only issue before the Court is the constitutionality of the ordinance on its face.

If he said that to the Circuit Judge who sat in review of that Municipal Court.

He has never asserted that these facts were unconstitutionally applied which has been the law of this Court and of the Florida Courts in this area in the last few years.

Chief Justice Warren E. Burger: But of course, that Court did it have the option to reject that argument and say that it was unconstitutional as applied in this case.

Mr. T. Edward Austin, Jr.: I say they were not asked to do that --

Chief Justice Warren E. Burger: Well, did it have the option to do so? Could it have done so?

Mr. T. Edward Austin, Jr.: You are asking if the judge will go beyond the request relief by the lawyer when he goes in on appeal.

Chief Justice Warren E. Burger: Well, this could be on the ground if he granted the relief as to this particular person or persons before you, then the man would not have any constitutional claim left would he?

Mr. T. Edward Austin, Jr.: Your Honor, our interest in only in the Jacksonville and I do not think in most of the other sections of the country work that way if a lawyer waives all the points except one, that is the only one the Court would consider.

That has been the policy of this Court.

If you do not raise you should waive it.

And this was all that was submitted and the opinion of the District Court of Appeals from which certiorari is granted here.

The only thing that the Court points out in that opinion that the only thing before them by the petition which the petitioner says.

The only thing before us is the unconstitutionality of the statute on its face.

Now -- Your Honor I will submit that that is basically unfair that the Florida judiciary did not give him a chance to review the very things that you are being asked to review these cases on the merits --

Unknown Speaker: Our writ should have run to the Circuit Court?

Mr. T. Edward Austin, Jr.: It should have Your Honor.

I would like to reserve that point.

I am not trying to evade this Court considering this case but I think I have a duty to raise it, that Justice Holmes said that if he did not come in from the proper court that you would be dismissed but this case came from the District Court of Appeals, where all the District Court of Appeals has run this.

It was review in certiorari.

So if you are reviewing the judgment of the District Court of Appeals which Mr. Jacobson has asked you to do, you are merely reviewing whether or not this is very true limited --

Unknown Speaker: The Circuit Court did pass on their merits?

Mr. T. Edward Austin, Jr.: No sir.

Unknown Speaker: Circuit Court?

Mr. T. Edward Austin, Jr.: The First District Court of Appeals, the Circuit Court did not pass on the merits.

They simply took it.

They gave a brief opinion that the statute was constitutional.

But they did not and were not permitted --

Unknown Speaker: (Inaudible)

Mr. T. Edward Austin, Jr.: Yes sir, but they were not permitted to look at the facts.

Unknown Speaker: Yes, but they reached the constitutional question?

Mr. T. Edward Austin, Jr.: Yes sir.

But they were not permitted to look at the facts --

Unknown Speaker: So our writ should have run to them?

Mr. T. Edward Austin, Jr.: The writ should have gone back to the original Court, Your Honor to the Circuit Court which was the Court that, according to Justice Holmes that the petitioners should have come up from.

That was the Court that entered the judgment, the District Court of Appeals merely commented that the statute was constitutional but denied certiorari.

So that is not a judgment and he should have gone from here -- since he came from the wrong Court and Justice Holmes says that is fake, as we cited that in our brief.

I would like to submit to the Court and in this brief time, we certainly cannot go into a deep alluded philosophical discussion but as old as this statute is, it is archaic, as some of the language is the very important law enforcement tool.

It goes to the very heart of police power of our municipality and to the police power of the State of Florida.

And if it needs to be revised this Court has time after time spoken of the fact that it will not strike a statute if it can be construed to be constitutional but it must be beyond any reasonable doubt unconstitutional and the fact that some archaic language in a statute does not make it unconstitutional in its total situation.

This court has in fact held that it has a duty to uphold the police power measure, if it bears some rational relationship to health, safety, morals or general welfare and the means employed reasonably accomplishes the desired result.

The means here were probably an unconstitutional application of a statute.

But then this ordinance read in its totality must be considered and I honestly submit to the Court, must be considered to be a valid exercise of the police power.

And the fact it is not inarticulately drawn is immaterial if it goes to the relationship of health, safety, morals and general welfare.

And I respectfully submit that you cannot read this without saying that it goes to the general welfare, the public safety.

I could give you a list of illustrations.

Unknown Speaker: You are not suggesting that a statute would say that so be a crime to commit act, injuries to the public welfare --

Mr. T. Edward Austin, Jr.: No sir.

I think we have to --

Unknown Speaker: Why is that?

That would be just very good.

Mr. T. Edward Austin, Jr.: Yes sir.

Unknown Speaker: And you don't think that suffered.

Mr. T. Edward Austin, Jr.: The Civil Rights Act that was sustained back in the '64 was pretty vague.

We talk in terms of vagueness Your Honor, I do not mean to appear to be flippant but and I am not, certainly that I have the deepest respect.

The guidelines laid down in Roth for example, and cited in our brief, the reasonable speed of many words that just defy strict definition and as Justice frankfurter pointed out on a number of occasions that this balance between the maintenance of public order and criminal conduct and drawing words and language broad enough to protect the public and narrow enough to protect the individual is what it is all about and it is really -- there is no handbook on legislative drafting that this will be constitutional and this would be not.

This is a tremendously complex difficult area.

And so I will simply submit it on the fact that it is not unconstitutionally vague in view of the many words, that this Court has held to be constitutional, not constitutionally vague.

And our brief cites many illustrations to that.

There must be a place on reasonable application of this particular ordinance and phrases within these ordinance where it would be held to be constitutional therefore it cannot be stricken on it face under the laws or under the rules laid down by this Court because in many provisions of it, which saved it.

And it is vital to the protection of the public and the corporate city, the consolidated government of the city of Jacksonville.

I would like to point out that I have read most of the commentaries of Mr. Jacobson, my brother has cited to the Court, I find very little that it is written about the police.

I would like to point out that the police departments today in the metropolitan areas such as Jacksonville, Florida are watched by the media, television, news paper, they are watched by the prosecutor, they are watched by the Human Relations Committees, they are watched by the Civil Liberties Union, they are watched by the Sheriff himself because he is the elected official.

We have one police department in our government.

They are watched by the Executive arm of the government.

They are watched by the Courts.

If they have come in with bad evidence, if they make any illegal search, their evidence is suppressed.

And the idea that there is hanging over Jacksonville, I noticed that these cases were very selectively brought to your attention that there is hanging over Jacksonville, some threat of the police power taking over or being abused is manifestly not fair to the functions of the police department.

We have a thousand, obviously we are going to get some bad outlets.

If you are pouring a personal reference until a week ago, (Inaudible) prosecuted a bad outlet.

But to say that they are all bad or that they are abusing their authority perpetually under this particular ordinances is manifestly unfair.

Tree arrest a day in a city of 550,000 people cannot be a wide, broad use of this statute when you are considering that it is being applied in order that some arrest can be made that could not otherwise be made to protect the public.

I respectfully submit Your Honors that the crime rate of the United States has grown up according to the authority cited by Mr. Jacobson, 400% in the last 25 years.

The population has grown up 50%.

We have not been able to keep abreast of it in our community.

43% according to Mr. Jacobson are people in his authorities are afraid to walk down the streets at night alone in our community.

We need to modernize our ordinances and our statutes to do something to help us and to get the balance back in the administration of criminal justice.

We need to modernize this ordinance.

I do not know the answer.

I would assume that the people of Florida will elect people who can make those decisions with the advice of the Courts that they will make the decisions or rather or not they can make this type of conduct illegal.

And that those people that they elect will make the appropriate decision and then if they unconstitutionally have stepped over the bounds of the first ten amendments which Justice Black spoke so eloquently about then they are stricken down.

But if they do not and I submit that there is not a single thing here that steps over the bound of the first Ten Amendments of the constitution of the United States or the Fourteenth Amendment.

Chief Justice Warren E. Burger: But Mr. Austin when a case like this comes here we have rather a limited choices and the first we cannot give declaratory judgments or advisory opinions to people --

Mr. T. Edward Austin, Jr.: Mr. Chief Justice you are being asked to in this case because our Courts did not have an opportunity to get to the heart of this matter.

Justice Thurgood Marshall: I thought that we were being asked to rule as to whether or not this or this was unconstitutional on its face.

Mr. T. Edward Austin, Jr.: Yes sir.

Unknown Speaker: In total.

Mr. T. Edward Austin, Jr.: Yes sir.

Unknown Speaker: That is all we are being asked to do.

Mr. T. Edward Austin, Jr.: Yes sir.

Unknown Speaker: Do you suggest we rewrite it?

Mr. T. Edward Austin, Jr.: I suggest that the long line of cases of this Court are that you would not strike any portion of the statute that is constitutional on its face and you would only strike those provisions which were unconstitutional on their face.

So yes sir, I am asking you if you are going to do something with it, to rewrite it, I would welcome it.

It has given me and the people who seem to draft these things have headaches, the model penal code which I would refer you to who is coming in for how rush should be made is -- I do not see how it could be interpreted any differently that the big part of vagrancy statute is applied.

The police officer must have some discretion and this is place that he has some.

And if you have changed the wordings, he is still is going to have some discretion.

And he is as I said watched night and day by all of these authorities.

I would like to thank the Court for considering the position of the City of Jacksonville and honestly solicit that you dismiss this writ as it is improper to granted since it came from the improper Court and further to construe those portions of the statute, if you can construe it at all which are constitutional to be constitutional.

Thank you Your Honors.

Chief Justice Warren E. Burger: We would resume after lunch.

Austin you have just finished.

Mr. Jacobson has 4 minutes, no, you have 8 minutes.

Rebuttal of Samuel S. Jacobson

Mr. Samuel S. Jacobson: I would like first to respond to some of the explicit statements made by Mr. Austin.

The contention that we are out of Court because the writ has been misdirected that we submit is no more than a cripple -- it is not entitled to any standing.

We treated this question at some length in our reply brief.

The matter was also litigated in connection with the application for a writ of certiorari.

If in fact the City is correct that the writ was misdirected, the simple answer would be for the review that this Court makes to be at the Circuit Court order which can well be done and that that is the proper remedy in connection with the application for certiorari.

We responded to the city's response by saying that we would be very pleased for the writ to be directed to the Circuit Court instead of to the First District if that was the appropriate choice.

We think that it makes a difference with -- it is a difference without a distinction from purposes of these proceedings.

I might have lost to understand the city's recurrent citation of the Headley versus Selkowitz language by the Florida Supreme Court that the vagrancy statute is not be used very liberally by Florida law enforcement officers.

I do not see how that provides any comfort to the city.

It seems to me that this is no more than or no less than an expressed statement that law enforcers, that law enforcement officers are not to make any even handed application of the statute but that they are given license and freedom to decide for themselves what the standards of arrest are going to be which to us seems to point out the very vise of the statute was complained about.

Mr. Austin says that it was not intended to apply just to poor people and in its application is not in that effect.

I submit that while it may not have been -- may not be applied to poor people alone that by and large the application is to people who are or small people who are in no position to protest or make the protest heard.

The keeper of the largest gambling place in Florida I believe is the President of Race Track, I never known him to be arrested for vagrancy as a keeper of a gambling place.

Chief Justice Warren E. Burger: Is that in Jacksonville?

Mr. Samuel S. Jacobson: No sir.

That is not but part of the statute --

Chief Justice Warren E. Burger: Then it is not subject to this ordinance then?

Mr. Samuel S. Jacobson: No sir.

But the largest gambling place in the City of Jacksonville is a golf track and I never heard.

Chief Justice Warren E. Burger: That is in the City?

Mr. Samuel S. Jacobson: Yes sir.

And I have never heard of either the President of the Board of Directors there or and any employees in connection with it being arrested under this ordinance.

The argument that the only vise of the statute is archaic language, misses a serious point.

It is not that the statute or the ordinance contains language which is archaic.

Mr. Austin struck the archaic language.

I do not know what he would choose to take and what he would choose to leave.

What would he do for example with persons neglecting all lawful business and habitually spending their time by frequent houses of ill fame, gaming houses or places where alcoholic beverages are sold or served.

The person is able to work with habitually living upon the earnings of their wives or minor children or the language habitual loafers or persons for wandering or strolling from place to place without any lawful purpose or outing.

There is nothing archaic about that language and it is not that the language of the ordinance is archaic, it is said that the thrust, the concept which the ordinance represents is archaic and it is outside the boundaries of what is considered minimal due process or minimal decency by our current standards.

Further it is not simply and I want to make this point as emphatically as I can, it is not simply vagueness that we complain about.

As much as that, we complain about the extent and sweep of the statute, not only is it difficult to understand who is within it but when somebody is determined to be within it they are subject to this recurring and constant sort of classification.

Our basic complaint is that it is unconstitutional to deal with these matters by status proscriptions of the sort that are had here even if there were some way were found to make the ordinance sufficiently definite to pass vagrants test.

Mr. Austin complains that the City has been brought here without any review on the facts by the Florida system and he says that there was no way that the Florida system could have granted him set review.

On the contrary the Florida Courts could -- if they had one or two, go beyond the relief or the theory of what the petitioners sought down there in the same way that this Court did in Johnson versus Florida and three years ago on a similar vagrancy case.

But the Florida Court shows not to and I submit that the reason that it shows not to is that they are not opposed to that they approve the application of the vagrancy concept and the clearest manifestation of that is the way in which the Florida Supreme Court responded when this Court’s order in the Johnson case was sent back to them.

The peevish grudging, sort of sarcastic and resentful language of the Florida Supreme Court’s opinion reflects the attitude of the Florida Courts on these questions and unless relief comes from this Court, there is going to be no relief.

Unknown Speaker: That case is cited in your brief?

Mr. Samuel S. Jacobson: Yes.

Unknown Speaker: On the remand of Johnson.

Mr. Samuel S. Jacobson: Yes sir, it is.

Unknown Speaker: In your brief or reply brief?

Mr. Samuel S. Jacobson: In both.

Unknown Speaker: Thank you.

And that is in Johnson?

Mr. Samuel S. Jacobson: Johnson versus State in Florida.

Unknown Speaker: 216 So.

2d.

Mr. Samuel S. Jacobson: Right.

Finally, I find myself taken aback at little bit aghast to two of Mr. Austin’s contentions.

First, the contention that this does not make much difference because only three people a day and about a thousand people a year in Jacksonville are subjected to arrest under this statute.

If it is unconstitutional, one person a year is too many but regardless of that, the plain fact of the matter is that three people a day and more than a thousand persons a year is horrendous number to be subjected to the sort of abuses handed out in the --

Chief Justice Warren E. Burger: Well, I didn't understand Mr. Austin that the argument that it was less important because of the numbers but merely making the point that there was no wide dragnet that was dragging in thousands of people.

I do not think he has a different view --

Mr. Samuel S. Jacobson: Well, I hope he did not.

Chief Justice Warren E. Burger: In that respect as you do.

Mr. Samuel S. Jacobson: I hope he did not.

Finally, I have taken aback just much by his statement that the vagrancy concept is so important to law enforcement that it goes to the heart of law enforcement.

Just two days ago this Court heard someone from the Attorney Generals Office stand here and say that these victims whose crimes are no longer regarded as necessary by Florida law enforcement and it would be taken out in the new revision of the Florida Criminal Codes.

We have heard the President of the United States saying that it is time to do away with it.

The victim was trying to this sort.

But they are not necessary to law enforcement.

In any event, if by some stretch they are useful, if by some stretch they are helpful, I submit that we come to poor pass where it is contended in this Court that the law has to be enforced by violating the constitution and I certainly hope that this Court is not going to lend any support to any such contention.

We submit that the vagrancy ordinance that is before the Court now is a horrible and it reaches an example of legislative excess.

We submit that there will be continued abuse and that the only proper relief that can be had is for the Court at this time to proceed to strike this down ordinance.

Chief Justice Warren E. Burger: Thank you Mr. Jacobson.

Thank Mr. Austin.

The case is submitted.