Stirling Proposes Vagrancy Bill : Civil Liberties Lawyers Say Law Would Be Too Vague

Two years after the U.S. Supreme Court declared California’s 111-year-old vagrancy law unconstitutional, Assemblyman Larry Stirling (R-San Diego) has authored a bill that would permit police to question people who wander the streets.

Civil liberties lawyers, including some who challenged the old law, say the proposed vagrancy law is no more constitutional than the old one, but local police officials say they would welcome such a statute.

“It’s the same statute,” said San Diego lawyer James Walsh, whose firm represented Edward Lawson. Lawson, a tall, black man with shoulder-length braids or “dreadlocks,” was questioned or arrested for vagrancy 15 times in two years, and then challenged the law in the landmark case.

Like the original vagrancy law, Stirling’s bill would allow police officers to arrest someone on a misdemeanor charge if that person was loitering or wandering “without apparent reason or business” and refused to identify himself.

Walsh and other opponents of the bill argue that the U.S. Supreme Court struck down the original law because it was vague--and so is this one.

“What’s loitering? What’s wandering? What’s without apparent purpose or business?” Walsh asked. “Anyone who goes for a walk or a stroll in the park could be considered to be loitering or wandering. It’s like the officers casting a net over a whole group of persons and accusing some of vagrancy.”

Daphne Macklin, legislative advocate for the American Civil Liberties Union in Sacramento, added, “This is the kind of thing that could be used in some communities to harass the homeless. You could use this as a way to ship a whole lot of people out of the neighborhood.”

But Stirling, who introduced the legislation March 3 on behalf of the City of San Diego, denied that the bill was unconstitutionally vague.

Such criticism is “sophistry,” Stirling said. “Wandering is different than walking purposefully . . . A city has a right to control its sidewalks--and its peace and tranquility.”

The original vagrancy law, enacted in 1872, allowed police to arrest anyone who refused “to identify himself and to account for his presence when requested by any peace officer to do so, if the surrounding circumstances are such as to indicate to a reasonable man that public safety demands such identification.”

The law had been used by police to stop people who appeared suspicious--a stranger in a neighborhood plagued by burglaries, for instance. But civil rights advocates argued that such a law allowed police to single out individuals merely because they looked different.

Lawson, a San Francisco business consultant who was a frequent visitor to San Diego, apparently looked unusual to police as he strolled the streets of San Diego, and he was often stopped as he walked at night through predominantly white neighborhoods.

He was arrested or detained by San Diego police 15 times between 1975 and 1977, but was prosecuted only twice and convicted once of vagrancy. But he was not convicted of any other crime. In 1979, he contested his latest vagrancy arrest, charging that he was singled out solely because of his looks.

When the case of (San Diego Police Chief William) Kolender vs. Lawson reached the U.S. Supreme Court, California Deputy Atty. Gen. A. Wells Petersen argued that the law enabled police to stop suspicious-looking people and was only a “minimal intrusion” on the freedom and privacy of individuals.

But the high court disagreed. In a 7-2 vote, it ruled that the law was vague and must be struck down because it failed to specify what an individual must show or tell police to avoid being arrested.

Stirling said his proposed vagrancy bill tries to make the requirements for identification explicit.

Instead of asking a “detainee” to produce written identification or risk arrest, Stirling’s bill simply requires him to say his name and address.

Also, the new version no longer requires those detained to explain to police why they are in the area. According to a legislative analysis of the bill by San Diego city officials, the Lawson decision indicated that this requirement was unconstitutional on several grounds. Chief among them was the concern that it violated one’s Fifth Amendment right against self-incrimination, the city report said.

San Diego police say a vagrancy law would be useful. If they had had it a year ago, they might have been able to nab the “Clairemont Arsonist” sooner, said Capt. Winston Yetta, who heads the Police Department’s Central Division.

“It would certainly go a long way to protecting society,” he said. “If I stop you walking down the street at 3 a.m. in your neighborhood and say, ‘Hi, can I talk to you?’ You can say, ‘Hey, forget it.’ And there’s no law that says I can do anything.”

If ACLU lawyers have their way, there never will be. The ACLU’s Macklin suggested that if police want to detain someone, they should decide to do so on the basis of “good police work, a minimal level of surveillance,” and not because someone “looks different.”

Any number of people “look different,” she said. Macklin, who is black, said she and others in her family have been questioned by police on several occasions just because they were visiting white neighborhoods.

But Stirling argued that his bill fairly balances the rights of individuals with the right of society to protect itself.

“Say there are three people camped on the sidewalk in front of a house, spending the night there and smoking and joking and clinking the bottles. Doesn’t society have a right to say, ‘What are you guys doing there?’ ” Stirling asked. “Is it reasonable that the officers can ask their names and addresses? We think it is.”

The bill, AB 1915, is scheduled to be heard May 6 by the Assembly Public Safety Committee.