Betancourt v. Bloomberg

Judge CALABRESI dissents, in a separate opinion. KEARSE, Circuit Judge. Plaintiff Augustine Betancourt appeals from so much of a judgment of the United States District Court for the Southern District of New York as dismissed his claims against defendants City of New York (“City”), its mayor, and its police commissioner, brought under 42 U.S.C. § 1988, challenging Betancourt’s arrest on a charge of violating City Administrative Code § 16-122. Betancourt alleged that subsection (b) of that section, which, inter alia, prohibits leaving boxes and erécting obstructions in public spaces, is unconstitutionally overbroad and, as applied to him, unconstitutionally vague; he also alleged that his arrest was without probable cause and violated his right to travel. The district court, John S. Martin, Jr., then-Judge, granted defendants’ motion for partial summary judgment dismissing those claims on the grounds that § 16-122(b) was sufficiently clear to give notice both to Betancourt and to law enforcement officials as to what conduct was prohibited; that the section plainly applied to Betanc-ourt’s observed conduct; and that the section did not implicate Betancourt’s right to travel. On appeal, Betancourt principally pursues his contentions that § 16-122(b) is unconstitutionally vague and overbroad and that he was arrested without probable cause. For the reasons that follow, we affirm. I. BACKGROUND This case arises out of the 1997 arrest of Betancourt and other homeless persons pursuant to a City program designed to improve the quality of life in the City’s public spaces. Viewed in the light most ■ favorable to Betancourt, as the party against whom summary judgment was granted on the claims at issue on this appeal, the following facts are not in dispute except as indicated. A. The Events In 1994, the City undertook a “Quality of Life” initiative designed to reduce a wide range of street crimes including prostitution, panhandling, and drug sales. Betanc-ourt asserted that the initiative was thereafter expanded to, inter alia, reduce the number of homeless persons residing in public spaces. The City’s Police Department issued a guide for law enforcement officers, listing laws that prohibited conduct targeted by the initiative. Those laws included City Administrative Code § 16-122, subsection (b) of which states that [i]t shall be unlawful for any person, such person’s agent or employee to leave, or to suffer or permit to be left, any box, barrel, bale of merchandise or other movable property whether or not owned by such person, upon any marginal or public street or any public place, or to erect or cause to be erected thereon any shed, building or other obstruction. N.Y., N.Y., Admin. Code (“NYC Admin. Code”) § 16-122(b). In the early morning hours of February 28, 1997, in or around certain parks in lower Manhattan, police officers arrested 25 individuals, including Betancourt. Be-tancourt had come to the park at approximately 10:30 p.m. on February 27 with some personal possessions, three 'folded cardboard boxes, and a loose piece of cardboard. He used the three boxes to con — 550 — struct a “tube” large enough to accommodate most of his body; he placed the tube on a park bench, climbed into the tube, covered the exposed part of his body with the loose piece of cardboard, and went to sleep. At approximately 1:00 a.m. on February 28, the police roused Betancourt from his sleep and arrested him. At approximately 5:00 a.m. on March 1, 1997, Betancourt was given a Desk Appearance Ticket, noting that he was charged with violating § 16-122, and was released. By that time, the District Attorney’s Office had signed a “DECLINATION OF PROSECUTION,” stating that “PROSECUTION OF TH[E] CASE [against Betanc-ourt] WAS DECLINED [because the case] Lack[ed] Prosecutorial Merit.” (Declination of Prosecution dated February 28, 1997.) B. The Present Action The present action was commenced in September 1997 under 42 U.S.C. § 1983 by Betancourt and by another plaintiff who has not pursued his claims. Betancourt alleged principally (a) that § 16-122(b) is unconstitutionally overbroad and unconstitutionally vague as applied to him, (b) that he had been arrested without probable cause and in violation of his right to travel, and (c) that he had been subjected to an unreasonable strip search. Following a period of discovery, both sides moved for summary judgment. As to the vagueness challenge, defendants contended that § 16-122(b) was clear on its face. Betancourt disputed that contention, pointing out that subsection (a) of § 16-122 states that “[t]he purpose of this section is to punish those persons who abandon and/or remove component parts of motor vehicles in public streets,” NYC Admin. Code § 16-122(a). He argued that § 16-122 as a whole did not provide him with reasonable notice that his conduct, which was unrelated to motor vehicles, would be unlawful. In a Memorandum Opinion and Order dated December 26, 2000, the district court granted Betancourt’s motion for summary judgment as to liability on his strip-search claim — a claim that was eventually settled and is not at issue on this appeal. As to Betancourt’s remaining claims, the district court granted summary judgment in favor of defendants. See Betancourt v. Giuliani, No. 97 Civ. 6748, 2000 WL 1877071, at *7 (S.D.N.Y. Dec.26, 2000) (“Betancourt I”). In addressing Betancourt’s vagueness challenge, the district court stated that a statute is not unconstitutionally vague if it (1) “give[s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited,” and (2) “provide[s] explicit standards for those who apply [it].” Id. at *3 (internal quotation marks omitted). The court also noted that “ ‘[because the statute is judged on an as applied basis, one whose conduct is clearly proscribed by the statute cannot successfully challenge it for vagueness.’ ” Id. (quoting United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993)). The district court found the plain language of § 16-122(b) sufficiently clear to alert Betancourt that his conduct was prohibited. The court stated that the language that “makes it unlawful to erect or cause to be erected ... any shed, building or other obstruction,” Betancourt I, 2000 WL 1877071, at *3 (internal quotation marks omitted), was reasonably understood to apply to Betancourt’s conduct because he had erected a human-sized cardboard structure, housing a human inside, in a public space. He was not simply occupying a park bench with a few personal items. Rather, he had erected an obstruction in a public space. — 551 — .... Because Plaintiff had sufficient notice that his conduct was prohibited by Section 16 — 122(b), the- statute passes the first prong of the vague as applied test, id. at *4. The district court rejected Betancourt’s argument that subsection (b) implicitly included subsection (a)’s reference to motor vehicles. The court noted that the predecessor to § 16 — 122(b) had referred to, inter alia, erecting obstructions and leaving boxes and “vehicle[s]” on “public street[s],” NYC Admin. Code § 755(4)-2.0 (1964). Section § 755(4)-2.0 was substantially revised in 1969 and was eventually codified as § 16-122. Subsections (a), (c), (e), and (f) of § 16-122 were drafted to deal explicitly with motor vehicles; the language of § 755(4)-2.0 became subsection (b) of § 16-122 but was amended to remove any reference to vehicles. However, the court noted, the prohibition against leaving boxes, barrels, bales of merchandise, and erecting sheds or obstructions in public spaces remained in subsection (b). While subsection (a) explained the purpose of the new subsections regarding motor vehicles, no such explanation was needed to explain the purpose of the prohibition against leaving other things in public spaces. Moreover, the plain meaning of subsection (b), which unlike the other subsections contains no reference to vehicles, requires that it be read as prohibiting leaving boxes and erecting obstructions in public spaces. Betancourt I, 2000 WL 1877071, at *3 (emphases added). The district court also found that § 16-122(b) did not give law enforcement agents unfettered discretion to make arrests, but instead provided adequate guidelines to permit them to determine whether a person was engaging in conduct that violated that subsection. Distinguishing City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999), in which the Supreme Court had found unconstitutionally vague a city ordinance that simply prohibited gang members from “loitering” in public spaces, without providing guidance as to what constituted loitering, the district court stated that the ordinance at issue in this case offers law enforcement personnel guidance in the form of a list of specific objects, including boxes, that should not be left in public spaces. Similarly, there is less uncertainty involved in a police determination of what constitutes an obstruction of a public space than in a police determination of lohat constitutes loitering in a public space. The fact that the police must exercise some discretion in the application of Section 16-122(b) does not render the regulation void.... The text of Section 16-122(b) provides sufficient guidelines to limit police discretion in its application, and therefore it is not void in its application to Plaintiffs conduct. Plaintiffs, constitutional chállenge to Section 16-122(b) therefore fails. Betancourt I, 2000 WL 1877071, at *4-*5 (emphasis added). Following the decision in Betancourt I, Betancourt attempted an immediate appeal. However, as his strip-search claim had not yet been fully resolved, this Court dismissed the appeal sua sponte for lack of appellate jurisdiction. See Betancourt v. Giuliani 30 Fed.Appx. 11, 12-13 (2d Cir.2002). After the strip-search claim was settled in 2004 by the City’s agreement to pay Betancourt $15,000, a final judgment was entered, and this appeal followed. II. DISCUSSION On appeal, Betancourt principally pursues his claim that § 16-122(b) is unconsti — 552 — tutionally vague as applied to him, arguing that “[t]he district court. properly recognized ... that Section 16-122(b) required at least a ‘fairly stringent’ standard of vagueness, because the- section imposes criminal penalties and does not have any intent requirement,” but that the .court “should have ... applied a stricter, ‘especially stringent’ standard of vagueness, because Section 16-122(b) also implicates the fundamental right to travel.” (Betancourt brief on appeal at 21-22.) Betancourt also argues that § 16-122(b) is overbroad and that the police did not have probable cause to arrest him. For the reasons that follow, . we find no basis for reversal. A.' The Vagueness Claim The Due Process Clause of the Fourteenth Amendment requires that laws be crafted with sufficient clarity to “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited” and to “provide explicit standards for those who apply them.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); see, e.g., Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974) (“the due process doctrine of vagueness” “incorporates notions of fair notice or warning” and “requires legislatures to set reasonably eléar guidelines for law enforcement officials and triers of fact in order to prevent ‘arbitrary and discriminatory enforcement’ ”). Thus, • [a]s generally stated, the void-for-vagueness doctrine requires that a- penal statute défine the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Hoffman Estates v. Flipside, Hoffman Estates, Inc., [455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ]; Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Connolly v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, ... the more, important aspect of the vagueness doctrine “is not actual notice, but the other principal element of the doctrine — the requirement that a - legislature establish minimal guidelines to. govern law enforcement.” Smith, 415 U.S., at 574, 94 S.Ct.. 1242. Where the legislature fails to provide such minimal guidelines, a criminal statute may permit “a stan-dardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.” Id., at 575, 94 S.Ct. 1242. Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). Regulations need not, however, achieve “meticulous specificity,” which would come at the cost of “flexibility and reasonable breadth.” Grayned, 408 U.S. at 110, 92 S.Ct. 2294 (internal quotation marks omitted). “The degree of vagueness that the Constitution tolerates — as well as the relative importance of fair notice and fair enforcement — depends in part on the nature of the enactment.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). For example, “economic regulation is subject to a less strict vagueness test” than is legislation regulating noncommercial conduct. Id. On the other hand, a greater degree of precision is required for enactments that provide for “criminal penalties because the consequences of imprecision are qualita — 553 — tively” more severe. Id. at 498-99, 102 S.Ct. 1186. “[P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights.” Id. at 499, 102 S.Ct. 1186. If it does pose such a threat, “a more stringent vagueness test should apply.” Id. In the present case, § 16-122(b) is a criminal statute, and thus is subject to more than a minimal level of scrutiny. But as applied in the present case it does not impinge on constitutionally protected rights. Betancourt does not contend that his construction of a cardboard enclosure in which he could sleep, with some protection from the cold, was intended to be expressive activity protected by the First Amendment. Nor does § 16 — 122(b) impinge on Betancourt’s other constitutionally protected rights, for, despite his contention to the contrary, it does not impair his right to travel, given that it does not restrict interstate or intrastate “freedom of movement,” Kolender, 461 U.S. at 358, 103 S.Ct. 1855. Thus, only a moderately stringent vagueness test was required for a determination of whether § 16-122(b) was impermissibly vague as applied to Betancourt. The district court properly recognized this standard, and we see no basis for reversal in its application of the standard to the language of § 16-122(b) that prohibits the erection of an obstruction. We pause to note our disagreement with the district court’s ruling to the extent that it determined that the first of § 16-122(b)’s prohibitions, i.e., “leaving], or ... permitting] to be left, any box [etc.],” provided guidance to officers in their arrest of Betancourt, on the premise that that segment made clear that “boxes ... should not be left in public spaces,” Betancourt I, 2000 WL 1877071, at *4 (emphasis added). That part of § 16-122(b) was not applicable to Betancourt. He did not “leave” his box behind; he remained inside it. Nonetheless, the second § 16-122(b) prohibition forbids a person to “erect [in any public place] ... any shed, building or other obstruction,” and those words have plain dictionary meanings that applied to the conduct of Betancourt. For example, Webster’s Third New International Dictionary (1976) (“Webster’s Third ”) gives one definition of the verb to “erect” as to “put up (as a building or machine) by the fitting together of materials or parts.” Id. at 770. An ordinary person planning to fashion three boxes into a structure that was sufficiently large for a man to crawl into; and that was designed to give him shelter against the cold, would recognize that he was planning to “put up” something “by the fitting together of materials or parts.” Webster’s Third defines “obstruction” as “something that obstructs or impedes,” and defines “obstruct” as to “block up.” Id. at 1559. An ordinary person would understand that an agglomeration of boxeé large enough for a man to fit into would be “something that obstructs or impedes.” Betancourt points out that sheds and buildings are structures that would normally be of some permanence. See, e.g., Webster’s Third at 2090 (defining “shed” as “a slight structure (as a penthouse, lean-to, or partially open separate building) built primarily for shelter or storage”). He also points out that the first § 16-122(b) prohibition, forbidding the “leaving]” of “any box, barrel, bale of merchandise or other movable property,” concerns movable objects. He argues that § 16-122(b)’s final prohibition concerning “other obstruction^]” should therefore be interpreted as limited to structures of permanence. We disagree. An object plainly may “obstruct[] or impedef]” without doing so permanently. — 554 — Had the lawmakers intended “obstruction” to mean a permanent edifice, they could have simply added that adjective before “obstruction.” We think it clear that § 16-122(b) was meant to forbid any obstruction, whether permanent or temporary. In sum, as § 16-122(b) forbids a person to “erect” an “obstruction” in a public place, we conclude that the district court properly ruled that that language was sufficient to alert Betancourt, and to provide adequate guidance to law enforcement agents, that Betancourt’s conduct was prohibited. Accordingly, § 16 — 122(b) is not unconstitutionally vague as applied to Be-tancourt. B. Betancourt’s Other Claims Betancourt’s other claims do not require extended discussion. He claims that § 16-122(b) is “unconstitutionally over-reaching because it prohibits innocent, unoffending conduct that is beyond the state’s police power to regulate” (Betancourt brief on appeal at 35), i.e., “sitting, lying, or sleeping” by homeless persons “in parks and other public places, where they are not impinging on the rights of others” (id. at 37). This claim is doubly flawed. First, the Supreme Court “ha[s] not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Because Betancourt has not raised a First Amendment challenge and is “ ‘a person to whom a statute may constitutionally be applied,’ ” he “ ‘will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.’ ” Parker v. Levy, 417 U.S. 733, 759, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). Second, § 16-122(b) by its terms prohibits leaving or constructing in public spaces inanimate objects that are, inter alia, obstructions.- That section does not appear to prohibit the conduct — -“sitting, lying, .or sleeping” — described by Betancourt. Finally, the district court properly dismissed Betancourt’s false arrest claim because the police, having observed him in a cardboard structure large enough to house an adult human being, which he had erected in a public space, had probable cause to . arrest him. CONCLUSION We have considered all of Betancourt’s arguments on this appeal and have found in them no basis for reversal. The judgment of the district court is affirmed.