UNITED STATES of America ex rel. Leon NEWSOME, Petitioner-Appellee,

Benjamin J. MALCOLM, New York City Commissioner of Correction, et al.,
Respondents, Louis J. Lefkowitz, Attorney General of the State of New York,
Intervenor-Respondent-Appellant. Respondent-Appellant
United States Court of Appeals, Second Circuit
492 F.2d 1166 (1974)

 IRVING R. KAUFMAN, Chief Judge:

 This appeal presents the rare instance where by granting a writ of habeas corpus to a state prisoner we intrude less into local administration of criminal justice than if we were to follow the contrary course suggested by the state Attorney General.  Judge Bruchhausen granted Leon Newsome's petition pursuant to 28 U.S.C. 2254 because the loitering statute under which Newsome was arrested has been declared unconstitutional by the New York Court of Appeals. . . .We agree with the New York Court of Appeals in its evaluation of the loitering statute and, because of the particular constitutional infirmities involved, are compelled to conclude that the writ should issue.  We affirm.

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 Section 240.35(6) provides:

 A person is guilty of loitering when he: . . . Loiters, remains or wanders in or about a place without apparent reason and under circumstances which justify suspicion that he may be engaged or about to engage in crime, and, upon inquiry by a peace officer, refuses to identify himself or fails to give a reasonable credible account of his conduct and purposes . . ..

 We have noted that the New York Court of Appeals has already declared this provision unconstitutional on its face.  People v. Berck, supra.  In the instant proceeding, the Attorney General urges us, in effect, to instruct the state's highest court that its evaluation of a state statute was erroneous. Since the state court grounded its decision on the federal rather than the state Constitution, we must make an independent determination of the applicable federal standards.  See Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).  Accordingly, the question before us on this application for federal habeas corpus relief is whether the section violates due process. We conclude that it does.

 When § 240.35(6) became effective on September 1, 1967, it represented New York's formulation of a dragnet approach to the maintenance of public order that had its roots in feudal England and which has survived, despite considerable disapproval, in urban America.  Originally conceived as a [p. 1172] method to keep unemployed laborers from wandering between towns and terrorizing travelers, laws against vagrancy and loitering have been transformed into devices for preventing crime and for removing so-called nuisances-- mobs and individual 'undesirables'-- from public places. [n. 10] Despite the obvious governmental interest in preserving public order, a vagrancy-loitering statute will run afoul of the Constitution when its necessarily broad scope is stated in language so indefinite that it fails to:

10. See generally Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1 (1960); Foote, Vagrancy-Type Law and Its Administration, 104  U.Pa.L.Rev. 603 (1956); Lacey, Vagrancy and Other Crimes of Personal Condition, 66 Harv.L.Rev. 1203 (1953).
 'give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,' United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, and because it encourages arbitrary and erratic arrests and convictions.  Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066.

 Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972).  Moreover, because the crime prevention components of loitering statutes are aimed at suspected or potential rather than incipient or observable conduct, they may conflict with the deeply rooted Fourth Amendment requirement that arrests must be predicated on probable cause, Beck v. Ohio, 379 U.S. 89, 85 S.Ct 223, 13 L.Ed.2d 142 (1964); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).  See Papachristou v. Jacksonville, supra; Palmer v. Euclid, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971).  Indeed, it has been suggested that:

 because the elements of the . . . offense are obscure, even officers engaged in its good faith effectuation cannot gauge justification for . . . arrests consistently with Fourth Amendment principles.

 Hall v. United States, 148 U.S.App.D.C. 42, 459 F.2d 831, 837 (1972) (en banc).

 Turning from our brief discussion of the history and purposes of vagrancy legislation to the specific statute in issue, we must scrutinize the New York statute in accordance with the standard enunciated in Papachristou, Palmer, and Smith v. Florida, 405 U.S. 172, 92 S.Ct. 848, 31 L.Ed.2d 122 (1972).  Under the first prong of the vagueness test (Papachristou v. Jacksonville, supra, 405 U.S. at 162, 92 S.Ct. 839, quoting, United States v. Harriss, supra, 347 U.S. at 617, 74 S.Ct. 808) we must determine whether the statute's prohibitions are cast in terms sufficiently precise to give a reasonably intelligent person notice of the conduct that is proscribed.  See Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939). Newsome contends that the operative language is so indefinite that even a citizen who had 'read and studied' the statute in an effort to regulate his behavior would be in a quandary.  He suggests, moreover, that the linguistic imprecision is exacerbated because § 240.35(6) imposes criminal liability in the absence of criminal intent, a factor noted by the Supreme Court in Papachristou.  405 U.S. at 162, 92 S.Ct. 839.  It is urged, therefore, that the elements of loitering may be established by suspicious circumstances of which a citizen may not be cognizant and for which he may bear no responsibility.  The Attorney General asserts, on the other hand, that § 240.35(6) can be distinguished from the statutes disapproved in Papachristou, Palmer, and Smith, because it 'focuses upon specifically criminal conduct.'

 On its face, the statute discloses that 'loiter(ing)' 'remain(ing)' or  'wander(ing)' in an unspecified place for an unspecified period of time without apparent reason can establish the first element of the offense.  Surely a citizen who sought to conform his conduct to this provision would be unable to discern whether he risked criminal responsibility by taking a leisurely stroll, by sitting [p. 1173] briefly on a park bench, or by seeking shelter from the elements in the doorway of a building.

 The second substantive component of the statute is established by  'circumstances which justify suspicion that (a person) may be engaged or about to engage in crime.' [n. 11] Yet, such 'circumstances' may reflect the 'whim of the policeman,' People v. Berck, supra, 347 N.Y.S.2d at 38, 300 N.E.2d at 414, rather than the conduct of an individual who happened to 'wander' into the midst of the police, thereby creating the 'hazard of being prosecuted for knowing but guiltless behavior.'  Baggett v. Bullitt, 377 U.S. 360, 373, 84 S.Ct. 1316, 1323, 12 L.Ed.2d 377 (1964).  With nothing more, the 'suspect' is hardly offered a bright line test for distinguishing the licit from the illicit.

11. As construed by the New York courts, the third condition of § 240.35(6) ('upon inquiry . . . defendant refuses to identify himself or fails to give a reasonably credible account of his conduct and purposes') is not in fact a substantive element of the crime of loitering. Rather, the police inquiry is a 'procedural condition' to arrest under the statute.  People v. Schanbarger, 24 N.Y.2d 288, 291-292, 300 N.Y.S.2d 100, 101-102, 248 N.E.2d 16, 17 (1969).  See People v. Berck, supra, 347 N.Y.S.2d at 36 n. 2, 300 N.E.2d at 413.
 Moreover, there are insufficient guidelines for enforcement and thus  § 240.35(6) does not pass constitutional muster on this ground as well.  The section permits arrests and convictions for suspicion or for possible crime based on circumstances less compelling than the reasonable and articulable factors which are required to sustain a mere on-the-scene frisk.  Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).  It has been noted, and we agree, that the section could lend itself to the abuse of pretextual arrests of people who are members of unpopular groups or who are merely suspected of engaging in other crimes, without sufficient probable cause to arrest for the underlying crime. [n. 12]  For example, in People v. Williams, 55 Misc.2d 774, 286 N.Y.S.2d 575 (New York City Crim.Ct.1967), the court commented that:
12. We note, however, that there is no suggestion that Newsome was the target of a pretextual arrest and search, or that the officers failed to act in good faith.
 these defendants are 41 of a group of alleged prostitutes who have been arrested and detained 2500 times for disorderly conduct and loitering in New York City since August 18th . . ..  This Court of its own knowledge is aware that except for a few isolated instances where defendants pleaded guilty, the disorderly conduct cases were dismissed.  In many instances, 'the girls' were arrested after 11:30 P.M., too late to be arraigned, night court had been adjourned, then kept overnight in a cell.  In the morning they were brought to Court and released because the offenses for which they had been arrested could not be proven to have been committed by them.

 286 N.Y.S.2d at 577.  See Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like, 3 Crim.L.Bull. 205, 220-28 (1967); Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1, 8 (1960); Lacey, Vagrancy and Other Crimes of Personal Condition, 66 Harv.L.Rev. 1203, 1219-24 (1953).  See also Winters v. New York, 333 U.S. 507, 540, 68 S.Ct. 665, 92 L.Ed. 840 (1948) (Frankfurter, J., dissenting).

 To the extent the statute can be interpreted to support dragnet, streetsweeping operations absent probable cause of actual criminality, it conflicts with established notions of due process. Beck v. Ohio, supra; Henry v. United States, supra; Wong Sun v. United States, 371 U.S. 471, 479-482, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).  Even in the [p. 1174] absence of purposeful circumvention of traditional standards for lawful arrests, § 240.35(6) confers discretion that is simply too unbridled to satisfy due process standards.  The 'infirmity' lies in the imprecision of the statute, not the subjective intent of enforcement officials. The Supreme Court has noted, 'well-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law.' Baggett v. Bullitt, supra, 377 U.S. at 373, 84 S.Ct. at 1323.

 Applying the standards enunciated in Papachristou, Palmer, and Smith, we conclude, as did the New York Court of Appeals in Berck, that § 240.35(6) contravenes the Due Process Clause of the Fourteenth Amendment not only because it fails to specify adequately the conduct it proscribes, but also because it fails to provide sufficiently clear guidance for police, prosecutors, and the courts so that they can enforce the statute in a manner that is consistent with the Fourth Amendment.

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