The People, Respondent,v.Todd Johnson, Appellant.BriefN.Y.February 13, 2014C!Court of ~ppeals of tbe ~tate of 1F!eW ~or k THE PEOPLE OF THE ST ATE OF NEW YORK, - versus - TODD JOHNSON, Respondent, Appellant. ON APPEAL FROM THE APPELLATE DIVISION, FIRST DEPARTMENT NEW YORK COUNTY INDICTMENT # 05822/2010 APL 2013-00034 BRIEF OF AMICUS CURIAE NEW YORI( CIVIL LIBERTIES UNION Dated: D ANIEL MOLLKOFF ALEXIS KARTERON COREY STOUGHTON CHRISTOPHER DUNN New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, N.Y. 10004 (212) 607-3300 Attorneys for Amicus Curiae New York Civil Liberties Union January 3, 2014 New York, New York DISCLOSURE STATEMENT PURSUANT TO RULE 500.l(f) The NYCLU hereby discloses that it is a non-profit, 501 ( c )( 4) organization, and is the New York State affiliate of the American Civil Liberties Union. 1 TABLE OF CONTENTS DISCLOSURE STATEMENT PURSUANT TO RULE 500. l(f) ..... ..................... .. i TABLE OF AUTHORITIES ................................................... .. ......... ................ ...... iii INTRODUCTION ................... ........... .................................................................. ..... 1 STATEMENT OF INTEREST OF AMICUS CURIAE .......................................... 1 FACTUAL BACI<.GROUND ............. .............. ........................ ........ .... ................ .... 4 ARGUMENT ..................................... .. ............... ........... ........ ................................... 5 I. The Federal and State Constitutions Require that Orders to Disperse From Public Places Under Penalty of Arrest Be Lawful and Guided by Clearly Defined Stamdards ................. .. ............ .......................................... 5 II. The Disorderly Conduct Statute Cannot Be Read to Encompass Mr. Johnson's Conduct Without Making the Statute Unconstitutionally Vague ......................................................................................................... 8 A. The Testimony that Mr. Johnson Was Congregating with Gang Members in an Area with Gang Activity Cannot Justify His Arrest. ... 9 B. The Testimony that Another Individual Partially Obstructed the Deli Entrance Cannot Justify Mr. Johnson's Arrest ..................... 12 III. The Canon of Constitutional Avoidance Requires the Court to Construe the Disorderly Conduct Statute to Not Apply to Mr. Johnson's Conduct ....................... ......... ........... ..... ............... ............. 13 CONCLUSION ........ .......... ...... ............... ............ .................... .... .... ........... .. ............. 14 11 TABLE OF AUTHORITIES CASES City of Chicago v Morales, 527 US 41 [1999) ................................................. passim Dinler v City of New York, No. 04 Civ 7921 (RJS), 2012 WL 4513352, 2012 US Dist LEXIS 141851 [SDNY Sept. 30, 2012] ......... 2 Kauffman & Sons Saddlery Co. v Miller, 298 NY 38, 44 [1948] ........................... 13 Kolender v Lawson, 461 US 352, 357 [1983] ........................................................... 5 Ligon v City of New York, 925 F Supp 2d 478 [SDNY 2013] .................................. 2 Matter of Jacob, 86 NY2d 651, 667 [1995) ............................................... ............. 13 NAACP v Button, 371US415, 433 [1963] ............................................................... 6 People v Baker, 20 NY3d 354, 360 [2013] ....................................................... 12, 13 People v Bakolas, 59 NY2d 51, 54 [1983) .............................................................. 12 People v Bright, 71NY2d376, 383-84 [1988] ................................................. 10, 11 People v Case, 42 N.Y.2d 98, 101 [1977) ............................................................... 13 People v Galpern, 259 NY 279, 281 [1932] ............................................................. 6 People v Jones, 9 NY3d 259 [2007). ....................................................................... 12 Wright v State of Georgia, 373 US 284, 291-92 [1963] ....................................... 6, 8 OTHER AUTHORITIES Jason Carroll et al., "Did race play role in aITest of teens waiting for school bus?" CNN, Dec. 9, 2013 ..... ............................................................... .......... . 3 New York State Office of the Attorney General, "A Report on Arrests Arising From the New York City Police Department's Stop-and-Frisk Practices" (Nov. 2013) ................................................................................................................... ...... 3 111 INTRODUCTION New York's disorderly conduct statute cannot be interpreted, as the courts below did, to encompass Appellant Todd Johnson's conduct without rendering the statute unconstitutionally vague. Mr. Johnson was ordered to disperse and arrested for disorderly conduct based on two categories of evidence: (1) Mr. Johnson was congregating with three known gang members in an area with gang activity; and (2) one of those individuals was partially blocking the entrance to a deli. As none of this evidence suggests any public harm, interpreting the disorderly conduct statute to cover Mr. Johnson's conduct would effectively grant government officials unbridled discretion to order individuals to leave public places upon threat of arrest. The disorderly conduct statute would thus be indistinguishable from a law the Supreme Court held to be unconstitutionally vague in City of Chicago v Morales, 527 US 41 [1999]. The canon of constitutional avoidance therefore compels this Court to interpret the disorderly conduct statute to not cover Mr. Johnson's conduct and to vacate his conviction. STATEMENT OF INTEREST OF AMICUS CURIAE The New York Civil Liberties Union (NYCLU), the New York State affiHate of the American Civil Libe1ties Union, is a non-profit, non-partisan organization with tens of thousands of members. The NYCLU is committed to the defense and protection of civil rights and civil liberties. For over sixty years, the 1 NYCLU has been involved in litigation and public policy on behalf of New Yorkers, fighting against discrimination and advocating for individual rights and govermnent accountability. In particular, the NYCLU frequently engages in advocacy and litigation defending the right to be free from unlawful searches and seizures. (See, e.g., Ligon v City of New York, 925 F Supp 2d 478 (SDNY 2013) (granting preliminary injunction in challenge to widespread practice of unlawful stops, arrests, and searches of individuals at private apartment buildings by police officers); Dinler v City of New York, No. 04 Civ 7921 (RJS), 2012 WL 4513352, 2012 US Dist LEXIS 141851 [SDNY Sept. 30, 2012] (challenging mass arrests of protesters at 2004 Republican National Convention in New York City)). As this case presents an i111portant issue of the constitutional limits ofNew York's disorderly conduct statute, it is of great interest to the NYCLU. An opinion in this case that clarifies the constitutional limits of the disorderly conduct statute is of particular interest to the NYCLU because of the frequency with which New Yorkers are arrested pursuant to the statute and the high potential for arbitrary application of the disorderly conduct statute by law enforcement officials. According to a report recently released by the New York State Office of the Attorney General, the New York City Police Department arrested at least 1,241 individuals for disorderly conduct following Terry stops in 2 New York City between 2009 and 2012. 1 Only 22% of those arrestees were convicted as charged. A recent anecdotal example further illustrates that an opinion clarifying the scope of the disorderly conduct statute is necessary. Last month, the Rochester Police Department made national news by arresting three high school students who were waiting for a school bus for disorderly conduct. (See Jason Carroll, Brian Vitagliano and Catherine E. Shoichet, "Did race play role in arrest of teens waiting for school bus?" CNN, Dec. 9~ 2013, available at http://www.cnn.co1TIJ2013/12/09/justice/new-york-school-bus-arrests/).) The students said that they were simply standing on a sidewalk when police officers ordered them to disperse without cause. Id. The Monroe County District Attorney's Office ultimately dropped the charges. Id. In sum, this case is of interest to the NYCLU because it raises an important constitutional question. Specifically, it presents an opportunity for the Court to make clear that police officers may not arrest an individual for simply standing on a public sidewalk and refusing to follow an arbitrary order to disperse. 1 New York State Office of the Attorney General, "A Report on Arrests Arising From the New York City Police Dcprutment's Stop-and-Frisk Practices" (Nov. 2013) at Appendix J, available at http://www.ag.ny.gov/pdfs/OAG_REPORT_ON_SQF _PRACTICES_NOV _2013 .pdf. 3 FACTUAL BACKGROUND The factual background is set forth in greater detail in the parties' briefs, but the basic facts are as follows. On the afternoon of October 29, 2010, Police Officer Christian Ma:itinez arrived at the corner of Seventh A venue and 140th Street in Manhattan in response to a radio message. (A.32-34). He understood there to be gang activity in that a:i·ea. (A.31-32). Upon arriving, Officer Martinez observed four individuals, all of whom he recognized, stopped outside a deli by police officers. (A.35-37). He understood three of the individuals to be members of a gang and had observed the fourth individual, Appellant Todd Johnson, hanging out with members of the gang on previous occasions. (A.37-38). One of the individuals, Henry Rosario, was pa1tially blocking the entrance to the deli. (A.61). Mr. Johnson and the other two individuals were standing near Mr. Rosario to the left of the entrance. (A.60-61). Officer Martinez heard the other police officers asking the individuals why they would not move "listen" or "move" when the officers asked them to "get off the corner." (A.39). Some of the individuals, but not Mr. Johnson, responded that they lived there and were doing nothing wrong. (A.39-40). Another police officer informed Officer Martinez that, before Officer Martinez arrived at the scene, the officers had observed the four individuals "hanging out" and had told them "numerous times to move." (A:43). Officer Martinez then similarly asked the four 4 individuals, "What's so hard about understanding when we tell you to clear the corner?" (A.40-41). Mr. Rosario again responded that they lived there were not doing anything wrong. (A.41 ). At that point, Officer Martinez arrested all four individuals. (Id.). The trial court refused to suppress the evidence recovered following a search pursuant to Mr. Johnson's anest, and the First Department affirmed Mr. Johnson's conviction, which was entered following a guilty plea. (A.4-6). The sole issue on appeal is whether Officer Martinez had probable cause to arrest Mr. Johnson for disorderly conduct. ARGUMENT I. The Federal and State Constitutions Require that Orders to Disperse From Public Places Under Penalty of Arrest Be Lawful and Guided by Clearly Defined Standards. This Comi and the U.S. Supreme Court have made clear that police officers may not arbitrarily order individuals to disperse from public places upon threat of anest. Rather, any such order must be made pursuant to lawful authority, with clearly defined standards as to when orders to disperse may be issued. Absent clear standards, laws criminalizing fail ure to disperse are impermissibly vague and present the risks that individuals will lack notice as to what is lawfully required of them, and that law enforcement officials may exercise their broad discretion in an arbitrary or discriminatory manner. (See Ko/ender v Lawson, 461 US 352, 357 5 [ 1983] (holding that the Due Process Clause requires that criminal laws be defined "with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement").) 2 This Court warned over seventy years ago that "[ o ]ur liberties might be seriously threatened if an individual could be punished for refusal to obey an order of a policeman or other officer of the State transcending his lawful authority." (People v Galpern, 259 NY 279, 281 [1932]). Likewise, the Supreme Court has emphasized that, "[ o ]bviously, ... one cannot be punished for failing to obey the command of an officer if that command is itself violative of the Constitution." (Wright v State of Georgia, 373 US 284, 291-92 [1963]). Drawing on these principles, in City of Chicago v Morales, the Supreme Court struck down a Chicago ordinance as unconstitutionally vague because it vested police officers with the authority to order dispersal under penalty of an-est without clearly defining when officers could issue such orders. (527 US 41 [1999]). The ordinance at issue in Morales directed that: Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons 2 Vagueness concerns are heightened where, as here, criminal laws implicate First Amendment rights of association and speech and thus risk chilling the exercise of those rights. (See NAACP v Button, 371US415, 433 [1963] ("Because First Amendment freedoms need breathing space to survive, goverrnnent may regulate in the area only with narrow specificity."). 6 to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section. (Id. at 47 n.2).3 The Chicago Police Department promulgated internal guidelines for enforcing the ordinance, which provided that only members of the "Gang Crime Section" of the Department could an-est gang members who violate the ordinance and that the ordinance would only be enforced in areas that had been designated by district commanders as "areas in which the presence of gang members has a demonstrable effect on the activities of law abiding persons in the surrounding comnrnnity." (Id. at 48.) In holding that the ordinance was impermissibly vague, the Supreme Comi explained that it conferred "vast discretion" on the police and failed to "provide any guidance to the officer deciding whether [a dispersal] order should issue." (Id. at 60-64; see also id. at 66 co~connor, J., concun-ing) ("Any police officer in Chicago is free, under the Illinois Supreme Court's construction of the ordinance, to order at his whim any person standing in a public place with a suspected gang member to disperse.").) The Court also held that the police department's internal guidelines limiting enforcement to certain areas of the city were insufficient to limit the discretion of officers because, inter alia, "a person who knowingly loitered with a well-known gang member anywhere in the city" could not "safely 3 The ordinance defined "loiter" as "to remain in any one place with no apparent purpose." (Id.). 7 assume that they would not be ordered to disperse no matter bow innocent and harmless their loitering might be." (527 US at 63-64). Similarly, in Wright v. State of Georgia, the Supreme Court reversed the convictions of six individuals who were convicted under a "breach of the peace" statute after refusing to follow a police officer's unjustified order that they leave a park where they were playing basketball. (373 US 284, 285-87 [1964].) The Court explained that construing the statute to apply to the defendants' conduct would render it unconstitutionally vague because it failed to give the defendants "adequate warning of the boundary between the constitutionally pen11issible and constitutionally impermissible applications of the statute. jj (3 73 US at 291-92.) In sum, the state and federal constitutions require that laws punishing non- compliance with orders to disperse be governed by clearly defined standards that limit police officer's discretion sufficiently to avoid arbitrary enforcement and to provide individuals with fair notice of what is lawfully required of them. II. The Disorderly Conduct Statute Cannot Be Read to Encompass Mr. Johnson's Conduct Without Malting the Statute Unconstitutionally Vague. The prosecution relies on two primary factual justifications for Mr. Johnson's disorderly conduct ruTest-that Mr. Johnson congregated with known gang members in an area with gang activity, and that one of those individuals was partially blocking the entrance to the deli. Under both justifications, interpreting 8 the disorderly conduct statute to encompass Mr. Johnson's conduct would render the statute unconstitutionally vague. A. The Testimony That Mr. Johnson Was Congregating with Gang Members in an Area with Gang Activity Cannot Justify His Arrest. The prosecution first contends that the arrest was justified because, at the time he was ordered to disperse, Mr. Johnson was "congregating" with individuals whom the police officers believed to be gang members in an area with gang activity. (See Br. of Respondent at 24-26). To interpret to the disorderly conduct statute to cover such "congregating" would cause the statute to suffer from the same constitutional deficiencies as laws that the Supreme Court and this Court have overturned in the past. Interpreting the disorderly conduct statute to encompass Mr. Johnson's conduct would render the statute functionally indistinguishable from the Chicago ordinance that the Supreme Court struck down in Morales. As discussed above, the ordinance at issue in Morales directed police officers, when they observed "a person whom [they] reasonably believe[ d] to be a criminal street gang member loitering in any public place with one or more other persons," to order all of the individuals to disperse. (527 US at 47 n.2.) Here, the prosecution seeks to justify the arrest in part on the basis that Mr. Johnson "congregated» with individuals whom Officer Martinez believed to be gang members. (Br. of Respondent at 25- 26.) In Morales, the Chicago Police Department 's internal guidelines provided 9 that the ordinance would only be enforced in areas that had been designated by district commanders as suffering from gang problems. (Id. at 48-49.) Here, the prosecution seeks to justify the dispersal order in part on the basis that Officer Martinez was aware of gang activity in the area.4 . The Court in Morales held that, even when viewed together, those standards were impermissibly vague, both because they vested police officers with excessive discretion and because they failed to put individuals on notice of what constituted forbidden loitering or in which areas of the city they could be lawfully ordered to disperse. (Id. at 60-64.) Applying the disorderly conduct statute ~o Mr. Johnson would render the statute unconstitutional for the same reasons. Interpreting the disorderly conduct statute to cover Mr. Johnson's conduct is also foreclosed by People v Bright, where, in considering a challenge to a loitering statute, this Court concluded that "a statute that merely prohibits loitering, without more, is unconstitutionally vague." (71 NY2d 376, 383-84 [1988].) Such a statute, the Court explained, impermissibly "fails to distinguish between conduct calculated to cause harm and conduct that is essentially innocent, thereby failing to give adequate notice of what conduct is prohibited." (Id.) In addition, "such a statute imperrnissibly places complete discretion in the hands of the police to 4 The facts relied upon by the Appellate Division to find probable cause to arrest Mr. Johnson also closely minor the ordinance found unconstitutional in Morales. (See A.5 ("Given the information the officer had about the gang problems that had occurred at that location in the past and the gang background of several of the men, he had a reasonable basis to believe their presence could cause public inconvenience, a1moyance or alarm.").) 10 determine whom they will anest." (Id. at 384.) In comparison, this Couti has "upheld loitering statutes only when they either prohibited loitering for a specific illegal purpose or loitering in a specific place of restricted public access." (Id.) In contrast to general loitering statutes, "[s]uch laws provide the ordinary citizen with adequate notice of the exact conduct prohibited, and require the officer on-the- scene to objectively observe some definable impermissible act in order to find probable cause to anest, thereby foreclosing the possibility that the law will be arbitrarily enforced." (Id.)5 For the same reasons, the disorderly conduct statute cannot constitutionally be applied to Mr. Johnson's conduct. There is no evidence in the record that Mr. Johnson congregated on the sidewalk in front of the deli for any "specific illegal purpose," nor any suggestion that the sidewalk was a "specific place of restricted public access." (See id. at 384.) Interpreting the disorderly conduct statute to permit dispersal for simply "congregating" would bring about precisely the same vagueness problems that led this Court to strike down the general loitering statute at issue in Bright. Accordingly, Mr. Johnson's conviction should be vacated. 5 A section of the Morales opinion joined by a plurality of justices also recognized that the "freedom to loiter for i1mocent purposes" is protected by the Due Process Clause of the Fourteenth Amendment. (Id. at 53 (plurality opinion).) Accordingly, the plurality explained, "[i]f the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty." (Id. at 58.) 11 B. The Testimony That Another Individual Partially Obstructed the Deli Entrance Cannot Justify Mr. Johnson's Arrest. The prosecution also contends the arrest of Mr. Johnson was lawful because, at the time he was ordered to disperse, he was standing near Mr. Rosario, and Mr. Rosario was partially obstlucting the entrance to the deli. This justification does nothing to bring the arrest within constitutional bounds. As discussed in detail in the Defendant-Appellant's briefs, evidence that an individual pa1iially blocked a doorway is insufficient to suppo1i a disorderly conduct arrest. Rather, the "public harm" element of the disorderly conduct statute requires evidence of "[s]omething more than a mere inconvenience of pedestrians." (Br. of Appellant at 18 n.6; Reply Br. of Appellant at 6-7 (quoting People v Jones, 9 NY3d 259 [2007]). This Court has suggested that the public harm element is required to ensure that the disorderly conduct statute complies with the federal and state constitutions' prohibitions on impermissible vagueness. This Comt recently emphasized that "[the public harm] element performs an important narrowing function" and that "[t]he significance of the public harm element in disorderly conduct cases cannot be overstated." (People v Baker, 20 NY3d 354, 360 [2013].) Likewise, in People v Bakolas, the Court relied on the "narrowing effect" of the public harm element to construe a section of the disorderly conduct statute in a manner that was not unconstitutionally vague. (59 NY2d 51, 54 [1983].) 12 In this case, there was no evidence that any pedestrian was in any way inconvenienced, let alone obstructed by Mr. Johnson's conduct. Thus, if the disorderly conduct statute covers Mr. Johnson's conduct, the "important narrowing function" of the public harm requirement (Baker, 20 NY3d at 360) is eliminated, and the statute covers virtually any conduct. Such an interpretation would render the statute unconstitutionally vague, as it would provide insufficient guidance to those enforcing the law-or those seeking to comply with it-as to what conduct it covers. Accordingly, this interpretation should be rejected, and Mr. Johnson's conviction should be vacated. III. The Canon of Constitutional Avoidance Requires the Court to Construe the Disorderly Conduct Statute to Not Apply to Mr. Johnson's Conduct. As discussed above, interpreting the disorderly conduct statute to apply to Mr. Johnson's conduct would raise serious constitutional problems. "Where the language of a statute is susceptible of two constructions, the courts will adopt that which avoids injustice, hardship, constitutional doubts or other objectionable results." (Matter of Jacob, 86 NY2d 651, 667 [1995], quoting Kauffman & Sons Saddlery Cu. v Miller, 298 NY 38, 44 [1948].) And, "penal responsibility cannot be extended beyond the fair scope of the statutory mandate." (People v Case, 42 N.Y.2d 98, 101 [1977]). 13 Accordingly, this Court should construe the disorderly conduct statute to not enco1npass Mr. Jolmson's conduct, and should vacate his conviction. CONCLUSION For the reasons discussed above and in the appellant's briefs, amicus curiae urges the Court to vacate Mr. Johnson's conviction. Dated: January 3, 2014 New York, N.Y. Respectfully submitted, AL!la.4&.TERON DANIEL MULLKOFF COREY STOUGHTON CHRISTOPHER DUNN New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300 Counsel for Amicus Curiae New York Civil Liberties Union 14