CRM 1

Reaction Paper Guidelines

Reaction papers are a critical component of the conversation that will take place in this course. There will be a total of five different reaction papers throughout the course. Each of the five reaction papers will be approximately two pages in length. The text will be double-spaced and formatted using APA format. Students should clearly identify their topic and present their personal viewpoint or perspective; however, students must also present a factual basis for that viewpoint (as opposed to an opinion paper). All references supporting the factual basis must be properly cited to the original sources in accordance with APA guidelines. All papers must be the work of the individual student - this is not a group assignment. The paper will be submitted to the Assignment box no later than Sunday 11:59 PM EST/EDT. (This Assignment box is linked to Turnitin.)

For this Module, please choose from the following topics as the general subject of your paper:

 

· Presumption of innocence

· Ex post facto laws

· Void-for-vagueness doctrine

· Right to a jury trial

 

While you are primarily addressing the topic selected, you may want to discuss or expand on a topic presented in the textbook, a case dealing with the subject, or a current event from the news or Internet, and present your viewpoint or perspective on that item as it relates to the issue present in your chosen topic.

The Void-for-Vagueness Doctrine

LO4

A law is  void for vagueness  if it forbids conduct and prescribes punishments in terms so uncertain that ordinary people have to guess at their meaning before they choose a course of action. (Lanzetta v. New Jersey 1939, 453)

The U.S. Supreme Court has ruled that vague laws violate the guarantees of two provisions in the U.S. Constitution. The Fifth Amendment to the U.S. Constitution guarantees that the federal government shall not deny any individual life, liberty, or property without due process of law. The Fourteenth Amendment provides that no state government shall deny any person life, liberty, or property without due process of law.

How do vague laws violate the due process guarantees? The reasoning behind the void-for-vagueness doctrine goes like this:

1. The Fifth and Fourteenth Amendments to the U.S. Constitution ban both federal and state governments from taking any person’s “life, liberty, or property without due process of law.”

2. Criminal punishment deprives individuals of life (capital punishment), liberty (imprisonment), or property (fines).

3. Therefore, failure to warn private persons of what the law forbids and/or allowing officials the chance to define arbitrarily what the law forbids denies individuals their life, liberty, and/or property without due process of law.

The Aims of the Void-for-Vagueness Doctrine

LO4

The void-for-vagueness doctrine takes aim at two evils similar to those of the ban on ex post facto laws. First, void laws fail to give fair warning to private individuals as to what the law prohibits. Second, they allow arbitrary and discriminatory law enforcement. A famous case from the 1930s gangster days, Lanzetta v. New Jersey (1939), still widely cited and relied on today, is an excellent example of both the application of the doctrine and its purposes. The story begins with a challenge to this New Jersey statute:

Any person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime, in this or in any other State, is declared to be a gangster. . . . Every violation is punishable by fine not exceeding $10,000 or imprisonment not exceeding 20 years, or both. (452)

The challengers attacking the statute for vagueness were Ignatius Lanzetta, Michael Falcone, and Louie Del Rossi. On June 12, 16, 19, and 24, 1936, the three challengers, “not being engaged in any lawful occupation”; “known to be members of a gang, consisting of two or more persons”; and “having been convicted of a crime in the State of Pennsylvania” were “declared to be gangsters.”

The trial court threw out their challenge that the law was void for vagueness; they were tried, convicted, and sentenced to prison for “not more than ten years and not less than five years, at hard labor.” The New Jersey intermediate appellate court and the New Jersey Supreme Court also threw out their challenges. But they finally prevailed when a unanimous U.S. Supreme Court ruled that the New Jersey statute was void for vagueness. Why?

No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. (453)

The phrase “consisting of two or more persons” is all that purports to define “gang.” The meanings of that word indicated in dictionaries and in historical and sociological writings are numerous and varied. Nor is the meaning derivable from the common law, for neither in that field nor anywhere in the language of the law is there definition of the word. Our attention has not been called to, and we are unable to find, any other statute attempting to make it criminal to be a member of a “gang.” (454–55)

Notice that the answer to the question, “What’s  fair notice ?” in vague laws isn’t subjective; that is, it’s not what a particular defendant actually knows about the law. For example, the Court didn’t ask what Lanzetta and his cohorts knew about the gangster ordinance: Were they aware it existed? Did they get advice about what it meant? Did their life experiences inform them that their behavior was criminal (Batey 1997, 4)?

That’s because, according to the courts, the proper question, “What’s fair notice in void-for-vagueness law?” is objective; namely, “Would an ordinary, reasonable person know that what he was doing was criminal?” Perhaps the best definition of objective fair warning is U.S. Supreme Court Justice Byron White’s blunt phrase: “If any fool would know that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law, the enactment is not unconstitutional . . .” (Kolender v. Lawson 1983, 370–71).

Despite the importance of giving fair notice to individuals, the U.S. Supreme Court (1983) decided that providing “minimal guidelines to govern law enforcement” trumps notice to private individuals as the primary aim of the void-for-vagueness doctrine (Kolender v. Lawson 1983, 357). According to the Court:

Where the legislature fails to provide such minimal guidelines, a criminal statute may permit a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections. (358)

And, quoting from an old case (U.S. v. Reese 1875), the Court in Lawson elaborated further on the choice to give priority to controlling arbitrary and discriminatory enforcement:

It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of government. (221)

Giving priority to controlling law enforcement is more realistic than giving fair notice to hypothetical reasonable, ordinary people. Police officers and prosecutors are more likely to read what’s in the criminal statutes and know about the cases that interpret them. So it makes sense for courts to ask whether statutes clearly indicate to ordinary police officers and prosecutors what the law prohibits. Inquiries that seem “wrongheaded” when they’re directed at guaranteeing fair notice to ordinary noncriminal justice experts become reasonable when they’re examined to decide whether they’re clear enough to limit arbitrary and discriminatory enforcement (Batey 1997, 6–7).

Defining Vagueness

LO4

Whether the emphasis is on notice to individuals or control of officials, the void-for-vagueness doctrine can never cure the uncertainty present in all laws. Why? “Condemned to the use of words, we can never expect mathematical certainty from our language” (U.S. Supreme Court Justice Thurgood Marshall, Grayned v. City of Rockford 1972, 110). It’s not just the natural uncertainty of words that creates problems. It’s also because the variety of human behavior and the limits of human imagination make it impossible to predict all the variations that might arise under the statutes. So, courts allow considerable leeway in the degree of certainty required to pass the two prongs of fair warning and avoidance of arbitrary law enforcement.

Furthermore, challengers face a strong presumption that statutes are constitutional. The Ohio Supreme Court summarized the heavy burden of proof challengers have to carry:

The challenger must show that upon examining the statute, an individual of ordinary intelligence would not understand what he is required to do under the law. Thus, to escape responsibility . . . [the challenger] must prove that he could not reasonably understand that . . . [the statute] prohibited the acts in which he engaged. . . . The party alleging that a statute is unconstitutional must prove this assertion beyond a reasonable doubt. (State v. Anderson 1991, 1226–27)

Was his Act “Indecent, Immodest, or Filthy”?

Case

In State v. Metzger (1982), the Nebraska Supreme Court held that a Lincoln, Nebraska, city ordinance that made it a crime to “commit any indecent, immodest, or filthy act” was void for vagueness.

State v. Metzger 319 N.W.2d 459 (Neb. 1982)

History

Douglas E. Metzger was convicted in the municipal court of the city of Lincoln, Nebraska, of violating § 9.52.100 of the Lincoln Municipal Code. The District Court, Lancaster County, affirmed the District Court judgment. Metzger appealed to the Nebraska Supreme Court. The Supreme Court reversed and dismissed the District Court’s judgment.

KRIVOSHA, CJ.

Facts

Metzger lived in a garden-level apartment located in Lincoln, Nebraska. A large window in the apartment faces a parking lot that is situated on the north side of the apartment building. At about 7:45 a.m. on April 30, 1981, another resident of the apartment, while parking his automobile in a space directly in front of Metzger’s apartment window, observed Metzger standing naked with his arms at his sides in his apartment window for a period of five seconds. The resident testified that he saw Metzger’s body from his thighs on up.

The resident called the police department, and two officers arrived at the apartment at about 8:00 a.m. The officers testified that they observed Metzger standing in front of the window eating a bowl of cereal. They testified that Metzger was standing within a foot of the window, and his nude body, from the mid-thigh on up, was visible.

The pertinent portion of § 9.52.100 of the Lincoln Municipal Code, under which Metzger was charged, provides as follows: “It shall be unlawful for any person within the City of Lincoln . . . to commit any indecent, immodest or filthy act in the presence of any person, or in such a situation that persons passing might ordinarily see the same.”

Opinion

The . . . issue presented to us by this appeal is whether the ordinance, as drafted, is so vague as to be unconstitutional. We believe that it is. Since the ordinance is criminal in nature, it is a fundamental requirement of due process of law that such criminal ordinance be reasonably clear and definite.

The ordinance in question makes it unlawful for anyone to commit any “indecent, immodest or filthy act.” We know of no way in which the standards required of a criminal act can be met in those broad, general terms. There may be those few who believe persons of opposite sex holding hands in public are immodest, and certainly more who might believe that kissing in public is immodest. Such acts cannot constitute a crime. Certainly one could find many who would conclude that today’s swimming attire found on many beaches or beside many pools is immodest. Yet, the fact that it is immodest does not thereby make it illegal, absent some requirement related to the health, safety, or welfare of the community.

The dividing line between what is lawful and what is unlawful in terms of “indecent,” “immodest,” or “filthy” is simply too broad to satisfy the constitutional requirements of due process. Both lawful and unlawful acts can be embraced within such broad definitions. That cannot be permitted. One is not able to determine in advance what is lawful and what is unlawful. We therefore believe that § 9.52.100 of the Lincoln Municipal Code must be declared invalid. Because the ordinance is therefore declared invalid, the conviction cannot stand.

We do not attempt, in this opinion, to determine whether Metzger’s actions in a particular case might not be made unlawful, nor do we intend to encourage such behavior. Indeed, it may be possible that a governmental subdivision using sufficiently definite language could make such an act as committed by Metzger unlawful.

Reversed and dismissed.

Dissent

BOSLAUGH, J. , joined by CLINTON and HASTINGS, JJ .

The ordinance in question prohibits indecent acts, immodest acts, or filthy acts in the presence of any person. Although the ordinance may be too broad in some respects . . . the exhibition of his genitals under the circumstances of this case was, clearly, an indecent act. Statutes and ordinances prohibiting indecent exposure generally have been held valid. I do not subscribe to the view that it is only “possible” that such conduct may be prohibited by statute or ordinance.

void-for-vagueness doctrinethe principle that statutes violate due process if they don’t define a crime and its punishment clearly enough for ordinary people to know what is lawful

2-1bThe Void-for-Vagueness Doctrine

LO4

A law is  void for vagueness  if it forbids conduct and prescribes punishments in terms so uncertain that ordinary people have to guess at their meaning before they choose a course of action. (Lanzetta v. New Jersey 1939, 453)

The U.S. Supreme Court has ruled that vague laws violate the guarantees of two provisions in the U.S. Constitution. The Fifth Amendment to the U.S. Constitution guarantees that the federal government shall not deny any individual life, liberty, or property without due process of law. The Fourteenth Amendment provides that no state government shall deny any person life, liberty, or property without due process of law.

How do vague laws violate the due process guarantees? The reasoning behind the void-for-vagueness doctrine goes like this:

1. The Fifth and Fourteenth Amendments to the U.S. Constitution ban both federal and state governments from taking any person’s “life, liberty, or property without due process of law.”

2. Criminal punishment deprives individuals of life (capital punishment), liberty (imprisonment), or property (fines).

3. Therefore, failure to warn private persons of what the law forbids and/or allowing officials the chance to define arbitrarily what the law forbids denies individuals their life, liberty, and/or property without due process of law.

The Aims of the Void-for-Vagueness Doctrine

LO4

The void-for-vagueness doctrine takes aim at two evils similar to those of the ban on ex post facto laws. First, void laws fail to give fair warning to private individuals as to what the law prohibits. Second, they allow arbitrary and discriminatory law enforcement. A famous case from the 1930s gangster days, Lanzetta v. New Jersey (1939), still widely cited and relied on today, is an excellent example of both the application of the doctrine and its purposes. The story begins with a challenge to this New Jersey statute:

Any person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime, in this or in any other State, is declared to be a gangster. . . . Every violation is punishable by fine not exceeding $10,000 or imprisonment not exceeding 20 years, or both. (452)

The challengers attacking the statute for vagueness were Ignatius Lanzetta, Michael Falcone, and Louie Del Rossi. On June 12, 16, 19, and 24, 1936, the three challengers, “not being engaged in any lawful occupation”; “known to be members of a gang, consisting of two or more persons”; and “having been convicted of a crime in the State of Pennsylvania” were “declared to be gangsters.”

The trial court threw out their challenge that the law was void for vagueness; they were tried, convicted, and sentenced to prison for “not more than ten years and not less than five years, at hard labor.” The New Jersey intermediate appellate court and the New Jersey Supreme Court also threw out their challenges. But they finally prevailed when a unanimous U.S. Supreme Court ruled that the New Jersey statute was void for vagueness. Why?

No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. (453)

The phrase “consisting of two or more persons” is all that purports to define “gang.” The meanings of that word indicated in dictionaries and in historical and sociological writings are numerous and varied. Nor is the meaning derivable from the common law, for neither in that field nor anywhere in the language of the law is there definition of the word. Our attention has not been called to, and we are unable to find, any other statute attempting to make it criminal to be a member of a “gang.” (454–55)

Notice that the answer to the question, “What’s  fair notice ?” in vague laws isn’t subjective; that is, it’s not what a particular defendant actually knows about the law. For example, the Court didn’t ask what Lanzetta and his cohorts knew about the gangster ordinance: Were they aware it existed? Did they get advice about what it meant? Did their life experiences inform them that their behavior was criminal (Batey 1997, 4)?

That’s because, according to the courts, the proper question, “What’s fair notice in void-for-vagueness law?” is objective; namely, “Would an ordinary, reasonable person know that what he was doing was criminal?” Perhaps the best definition of objective fair warning is U.S. Supreme Court Justice Byron White’s blunt phrase: “If any fool would know that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law, the enactment is not unconstitutional . . .” (Kolender v. Lawson 1983, 370–71).

Despite the importance of giving fair notice to individuals, the U.S. Supreme Court (1983) decided that providing “minimal guidelines to govern law enforcement” trumps notice to private individuals as the primary aim of the void-for-vagueness doctrine (Kolender v. Lawson 1983, 357). According to the Court:

Where the legislature fails to provide such minimal guidelines, a criminal statute may permit a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections. (358)

And, quoting from an old case (U.S. v. Reese 1875), the Court in Lawson elaborated further on the choice to give priority to controlling arbitrary and discriminatory enforcement:

It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of government. (221)

Giving priority to controlling law enforcement is more realistic than giving fair notice to hypothetical reasonable, ordinary people. Police officers and prosecutors are more likely to read what’s in the criminal statutes and know about the cases that interpret them. So it makes sense for courts to ask whether statutes clearly indicate to ordinary police officers and prosecutors what the law prohibits. Inquiries that seem “wrongheaded” when they’re directed at guaranteeing fair notice to ordinary noncriminal justice experts become reasonable when they’re examined to decide whether they’re clear enough to limit arbitrary and discriminatory enforcement (Batey 1997, 6–7).

Defining Vagueness

LO4

Whether the emphasis is on notice to individuals or control of officials, the void-for-vagueness doctrine can never cure the uncertainty present in all laws. Why? “Condemned to the use of words, we can never expect mathematical certainty from our language” (U.S. Supreme Court Justice Thurgood Marshall, Grayned v. City of Rockford 1972, 110). It’s not just the natural uncertainty of words that creates problems. It’s also because the variety of human behavior and the limits of human imagination make it impossible to predict all the variations that might arise under the statutes. So, courts allow considerable leeway in the degree of certainty required to pass the two prongs of fair warning and avoidance of arbitrary law enforcement.

Furthermore, challengers face a strong presumption that statutes are constitutional. The Ohio Supreme Court summarized the heavy burden of proof challengers have to carry:

The challenger must show that upon examining the statute, an individual of ordinary intelligence would not understand what he is required to do under the law. Thus, to escape responsibility . . . [the challenger] must prove that he could not reasonably understand that . . . [the statute] prohibited the acts in which he engaged. . . . The party alleging that a statute is unconstitutional must prove this assertion beyond a reasonable doubt. (State v. Anderson 1991, 1226–27)

Was his Act “Indecent, Immodest, or Filthy”?

Case

In State v. Metzger (1982), the Nebraska Supreme Court held that a Lincoln, Nebraska, city ordinance that made it a crime to “commit any indecent, immodest, or filthy act” was void for vagueness.

State v. Metzger 319 N.W.2d 459 (Neb. 1982)

History

Douglas E. Metzger was convicted in the municipal court of the city of Lincoln, Nebraska, of violating § 9.52.100 of the Lincoln Municipal Code. The District Court, Lancaster County, affirmed the District Court judgment. Metzger appealed to the Nebraska Supreme Court. The Supreme Court reversed and dismissed the District Court’s judgment.

KRIVOSHA, CJ.

Facts

Metzger lived in a garden-level apartment located in Lincoln, Nebraska. A large window in the apartment faces a parking lot that is situated on the north side of the apartment building. At about 7:45 a.m. on April 30, 1981, another resident of the apartment, while parking his automobile in a space directly in front of Metzger’s apartment window, observed Metzger standing naked with his arms at his sides in his apartment window for a period of five seconds. The resident testified that he saw Metzger’s body from his thighs on up.

The resident called the police department, and two officers arrived at the apartment at about 8:00 a.m. The officers testified that they observed Metzger standing in front of the window eating a bowl of cereal. They testified that Metzger was standing within a foot of the window, and his nude body, from the mid-thigh on up, was visible.

The pertinent portion of § 9.52.100 of the Lincoln Municipal Code, under which Metzger was charged, provides as follows: “It shall be unlawful for any person within the City of Lincoln . . . to commit any indecent, immodest or filthy act in the presence of any person, or in such a situation that persons passing might ordinarily see the same.”

Opinion

The . . . issue presented to us by this appeal is whether the ordinance, as drafted, is so vague as to be unconstitutional. We believe that it is. Since the ordinance is criminal in nature, it is a fundamental requirement of due process of law that such criminal ordinance be reasonably clear and definite.

The ordinance in question makes it unlawful for anyone to commit any “indecent, immodest or filthy act.” We know of no way in which the standards required of a criminal act can be met in those broad, general terms. There may be those few who believe persons of opposite sex holding hands in public are immodest, and certainly more who might believe that kissing in public is immodest. Such acts cannot constitute a crime. Certainly one could find many who would conclude that today’s swimming attire found on many beaches or beside many pools is immodest. Yet, the fact that it is immodest does not thereby make it illegal, absent some requirement related to the health, safety, or welfare of the community.

The dividing line between what is lawful and what is unlawful in terms of “indecent,” “immodest,” or “filthy” is simply too broad to satisfy the constitutional requirements of due process. Both lawful and unlawful acts can be embraced within such broad definitions. That cannot be permitted. One is not able to determine in advance what is lawful and what is unlawful. We therefore believe that § 9.52.100 of the Lincoln Municipal Code must be declared invalid. Because the ordinance is therefore declared invalid, the conviction cannot stand.

We do not attempt, in this opinion, to determine whether Metzger’s actions in a particular case might not be made unlawful, nor do we intend to encourage such behavior. Indeed, it may be possible that a governmental subdivision using sufficiently definite language could make such an act as committed by Metzger unlawful.

Reversed and dismissed.

Dissent

BOSLAUGH, J. , joined by CLINTON and HASTINGS, JJ .

The ordinance in question prohibits indecent acts, immodest acts, or filthy acts in the presence of any person. Although the ordinance may be too broad in some respects . . . the exhibition of his genitals under the circumstances of this case was, clearly, an indecent act. Statutes and ordinances prohibiting indecent exposure generally have been held valid. I do not subscribe to the view that it is only “possible” that such conduct may be prohibited by statute or ordinance.

2-1bThe Void-for-Vagueness Doctrine

LO4

A law is  void for vagueness  if it forbids conduct and prescribes punishments in terms so uncertain that ordinary people have to guess at their meaning before they choose a course of action. (Lanzetta v. New Jersey 1939, 453)

The U.S. Supreme Court has ruled that vague laws violate the guarantees of two provisions in the U.S. Constitution. The Fifth Amendment to the U.S. Constitution guarantees that the federal government shall not deny any individual life, liberty, or property without due process of law. The Fourteenth Amendment provides that no state government shall deny any person life, liberty, or property without due process of law.

How do vague laws violate the due process guarantees? The reasoning behind the void-for-vagueness doctrine goes like this:

1. The Fifth and Fourteenth Amendments to the U.S. Constitution ban both federal and state governments from taking any person’s “life, liberty, or property without due process of law.”

2. Criminal punishment deprives individuals of life (capital punishment), liberty (imprisonment), or property (fines).

3. Therefore, failure to warn private persons of what the law forbids and/or allowing officials the chance to define arbitrarily what the law forbids denies individuals their life, liberty, and/or property without due process of law.

The Aims of the Void-for-Vagueness Doctrine

LO4

The void-for-vagueness doctrine takes aim at two evils similar to those of the ban on ex post facto laws. First, void laws fail to give fair warning to private individuals as to what the law prohibits. Second, they allow arbitrary and discriminatory law enforcement. A famous case from the 1930s gangster days, Lanzetta v. New Jersey (1939), still widely cited and relied on today, is an excellent example of both the application of the doctrine and its purposes. The story begins with a challenge to this New Jersey statute:

Any person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime, in this or in any other State, is declared to be a gangster. . . . Every violation is punishable by fine not exceeding $10,000 or imprisonment not exceeding 20 years, or both. (452)

The challengers attacking the statute for vagueness were Ignatius Lanzetta, Michael Falcone, and Louie Del Rossi. On June 12, 16, 19, and 24, 1936, the three challengers, “not being engaged in any lawful occupation”; “known to be members of a gang, consisting of two or more persons”; and “having been convicted of a crime in the State of Pennsylvania” were “declared to be gangsters.”

The trial court threw out their challenge that the law was void for vagueness; they were tried, convicted, and sentenced to prison for “not more than ten years and not less than five years, at hard labor.” The New Jersey intermediate appellate court and the New Jersey Supreme Court also threw out their challenges. But they finally prevailed when a unanimous U.S. Supreme Court ruled that the New Jersey statute was void for vagueness. Why?

No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. (453)

The phrase “consisting of two or more persons” is all that purports to define “gang.” The meanings of that word indicated in dictionaries and in historical and sociological writings are numerous and varied. Nor is the meaning derivable from the common law, for neither in that field nor anywhere in the language of the law is there definition of the word. Our attention has not been called to, and we are unable to find, any other statute attempting to make it criminal to be a member of a “gang.” (454–55)

Notice that the answer to the question, “What’s  fair notice ?” in vague laws isn’t subjective; that is, it’s not what a particular defendant actually knows about the law. For example, the Court didn’t ask what Lanzetta and his cohorts knew about the gangster ordinance: Were they aware it existed? Did they get advice about what it meant? Did their life experiences inform them that their behavior was criminal (Batey 1997, 4)?

That’s because, according to the courts, the proper question, “What’s fair notice in void-for-vagueness law?” is objective; namely, “Would an ordinary, reasonable person know that what he was doing was criminal?” Perhaps the best definition of objective fair warning is U.S. Supreme Court Justice Byron White’s blunt phrase: “If any fool would know that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law, the enactment is not unconstitutional . . .” (Kolender v. Lawson 1983, 370–71).

Despite the importance of giving fair notice to individuals, the U.S. Supreme Court (1983) decided that providing “minimal guidelines to govern law enforcement” trumps notice to private individuals as the primary aim of the void-for-vagueness doctrine (Kolender v. Lawson 1983, 357). According to the Court:

Where the legislature fails to provide such minimal guidelines, a criminal statute may permit a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections. (358)

And, quoting from an old case (U.S. v. Reese 1875), the Court in Lawson elaborated further on the choice to give priority to controlling arbitrary and discriminatory enforcement:

It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of government. (221)

Giving priority to controlling law enforcement is more realistic than giving fair notice to hypothetical reasonable, ordinary people. Police officers and prosecutors are more likely to read what’s in the criminal statutes and know about the cases that interpret them. So it makes sense for courts to ask whether statutes clearly indicate to ordinary police officers and prosecutors what the law prohibits. Inquiries that seem “wrongheaded” when they’re directed at guaranteeing fair notice to ordinary noncriminal justice experts become reasonable when they’re examined to decide whether they’re clear enough to limit arbitrary and discriminatory enforcement (Batey 1997, 6–7).

Defining Vagueness

LO4

Whether the emphasis is on notice to individuals or control of officials, the void-for-vagueness doctrine can never cure the uncertainty present in all laws. Why? “Condemned to the use of words, we can never expect mathematical certainty from our language” (U.S. Supreme Court Justice Thurgood Marshall, Grayned v. City of Rockford 1972, 110). It’s not just the natural uncertainty of words that creates problems. It’s also because the variety of human behavior and the limits of human imagination make it impossible to predict all the variations that might arise under the statutes. So, courts allow considerable leeway in the degree of certainty required to pass the two prongs of fair warning and avoidance of arbitrary law enforcement.

Furthermore, challengers face a strong presumption that statutes are constitutional. The Ohio Supreme Court summarized the heavy burden of proof challengers have to carry:

The challenger must show that upon examining the statute, an individual of ordinary intelligence would not understand what he is required to do under the law. Thus, to escape responsibility . . . [the challenger] must prove that he could not reasonably understand that . . . [the statute] prohibited the acts in which he engaged. . . . The party alleging that a statute is unconstitutional must prove this assertion beyond a reasonable doubt. (State v. Anderson 1991, 1226–27)

Was his Act “Indecent, Immodest, or Filthy”?

Case

In State v. Metzger (1982), the Nebraska Supreme Court held that a Lincoln, Nebraska, city ordinance that made it a crime to “commit any indecent, immodest, or filthy act” was void for vagueness.

State v. Metzger 319 N.W.2d 459 (Neb. 1982)

History

Douglas E. Metzger was convicted in the municipal court of the city of Lincoln, Nebraska, of violating § 9.52.100 of the Lincoln Municipal Code. The District Court, Lancaster County, affirmed the District Court judgment. Metzger appealed to the Nebraska Supreme Court. The Supreme Court reversed and dismissed the District Court’s judgment.

KRIVOSHA, CJ.

Facts

Metzger lived in a garden-level apartment located in Lincoln, Nebraska. A large window in the apartment faces a parking lot that is situated on the north side of the apartment building. At about 7:45 a.m. on April 30, 1981, another resident of the apartment, while parking his automobile in a space directly in front of Metzger’s apartment window, observed Metzger standing naked with his arms at his sides in his apartment window for a period of five seconds. The resident testified that he saw Metzger’s body from his thighs on up.

The resident called the police department, and two officers arrived at the apartment at about 8:00 a.m. The officers testified that they observed Metzger standing in front of the window eating a bowl of cereal. They testified that Metzger was standing within a foot of the window, and his nude body, from the mid-thigh on up, was visible.

The pertinent portion of § 9.52.100 of the Lincoln Municipal Code, under which Metzger was charged, provides as follows: “It shall be unlawful for any person within the City of Lincoln . . . to commit any indecent, immodest or filthy act in the presence of any person, or in such a situation that persons passing might ordinarily see the same.”

Opinion

The . . . issue presented to us by this appeal is whether the ordinance, as drafted, is so vague as to be unconstitutional. We believe that it is. Since the ordinance is criminal in nature, it is a fundamental requirement of due process of law that such criminal ordinance be reasonably clear and definite.

The ordinance in question makes it unlawful for anyone to commit any “indecent, immodest or filthy act.” We know of no way in which the standards required of a criminal act can be met in those broad, general terms. There may be those few who believe persons of opposite sex holding hands in public are immodest, and certainly more who might believe that kissing in public is immodest. Such acts cannot constitute a crime. Certainly one could find many who would conclude that today’s swimming attire found on many beaches or beside many pools is immodest. Yet, the fact that it is immodest does not thereby make it illegal, absent some requirement related to the health, safety, or welfare of the community.

The dividing line between what is lawful and what is unlawful in terms of “indecent,” “immodest,” or “filthy” is simply too broad to satisfy the constitutional requirements of due process. Both lawful and unlawful acts can be embraced within such broad definitions. That cannot be permitted. One is not able to determine in advance what is lawful and what is unlawful. We therefore believe that § 9.52.100 of the Lincoln Municipal Code must be declared invalid. Because the ordinance is therefore declared invalid, the conviction cannot stand.

We do not attempt, in this opinion, to determine whether Metzger’s actions in a particular case might not be made unlawful, nor do we intend to encourage such behavior. Indeed, it may be possible that a governmental subdivision using sufficiently definite language could make such an act as committed by Metzger unlawful.

Reversed and dismissed.

Dissent

BOSLAUGH, J. , joined by CLINTON and HASTINGS, JJ .

The ordinance in question prohibits indecent acts, immodest acts, or filthy acts in the presence of any person. Although the ordinance may be too broad in some respects . . . the exhibition of his genitals under the circumstances of this case was, clearly, an indecent act. Statutes and ordinances prohibiting indecent exposure generally have been held valid. I do not subscribe to the view that it is only “possible” that such conduct may be prohibited by statute or ordinance.