383 U.S.

252
86 S.Ct. 798
15 L.Ed.2d 744

Eddie J. HICKS, Petitioner,

v.
DISTRICT OF COLUMBIA.
No. 51.

Supreme Court of the United States

Argued Oct. 21, 1965.
February 28, 1966
Argued Oct. 21, 1965.

On Writ of Certiorari to the United States Court of Appeals for the District
of Columbia Circuit.
Charles Wolfram, Washington, D.C., for petitioner, pro hac vice, by
special leave of Court.
Hubert B. Pair, Washington, D.C., for respondent.
PER CURIAM.

The writ of certiorari 379 U.S. 998, 85 S.Ct. 731, 13 L.Ed.2d 700, is dismissed
as improvidently granted.

Mr. Justice HARLAN, concurring.

Among the seveal reasons which support the action of the Court in dismissing
the writ in this case as improvidently granted, I rest my decision to join in this
disposition on the lack of a record, without which I do not believe the
constitutional issues tendered can properly be decided.

Mr. Justice DOUGLAS, dissenting.

I.

We granted certiorari in this case to consider what I think is an important

question: the constitutionality of petitioner's conviction of 'vagrancy.' Relying
on our determination that this case presented substantial questions of
constitutional law, the parties comprehensively briefed those questions and we
heard argument. But now the Court decides that the writ of certiorari must be
dismissed as improvidently granted.

With all respect, I must dissent from this disposition of the case.

In the first place, the alleged 'untimeliness' of the petition was called to the
attention of the Court by respondent in its brief opposing the grant of certiorari.
We were thus fully aware of this point when we granted the writ. Moreover,
Rule 22(2) is not jurisdictional or mandatory and may be waived by this Court
under proper circumstances, at least where no jurisdictional statute is involved.
Heflin v. United States, 358 U.S. 415, 418, n. 7, 79 S.Ct. 451, 453, 3 L.Ed.2d
407. Having brought the case here, required the parties to brief the issues, and
heard argument, it is most inappropriate to decline to exercise our discretion
and waive the time bar of Rule 22(2).1

Nor, in my opinion, is the objection to the adequacy of the record well founded.
Petitioner argued in this Court that the statute defining 'vagrant' is
unconstitutionally vague. The challenged statute is 223302(3) of the
District of Columbia Code, and it provides that a 'vagrant' is:

'Any person leading an immoral or profligate life who has no lawful

employment and who has no lawful means of support realized from a lawful
occupation or source.'

10

We do not need a detailed account of the particular facts of this case in order to
pass on the claim that this statute lacks the specificity that due process of law
requires. In Lanzetta v. State of New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618,
619, 83 L.Ed. 888, we said:

11

'If on its face the challenged provision is repugnant to the due process clause,
specification of details of the offense intended to be charged would not serve to
validate it. * * * It is the statute, not the accusation under it, that prescribes the
rule to govern conduct and warns against transgression. * * * No one may be
required at peril of life, liberty or property to speculate as to the meaning of
penal statutes.'

12

The Court held the challenged statute bad in that case without considering the

defendant's conduct which formed the basis of the prosecution. If a penal

statute is so imprecise as to deny fair warning to those who might transgress it,
any conduct of the defendant prosecuted under it which might have been
proscribed by a more precisely worded statute is irrelevant.
13

The Lanzetta case is close kin to the present one because the crime there
charged was one of being a 'gangster' which was defined as 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.' 306 U.S., at 452, 59 S.Ct., at 618. The Court, without
considering the facts of record, looked only at the statute and the charge of the
indictment and ruled that the Act was unconstitutional for vagueness.

14

If one takes my view and approaches this case as an attempt by the Government
to regulate the status of being a vagrant, the absence of a detailed record isas
with the vagueness pointno impediment to proper analysis.

II.
15

Our vagrancy laws stem from the series of the Statutes of Labourers (23 Edw.
3; 25 Edw. 3, Stat. I) first passed in 1349 and amended and modified from time
to time over the next 200 years.2 They reflected 'the criminal aspect of the poor
laws.'3 They 'confined the labouring population to stated places of abode, and
required them to work at specified rates of wages. Wandering or vagrancy thus
became a crime.'4 History tells the story from the point of view of the
Establishment: that wandering bands of people, who had left their masters,
committed all sorts of crimes and hence must be punished for wandering. That
philosophy obtains in this country, because the English statutes provided the
seed of our vagrancy laws. Article IV, 1, of the Articles of Confederation
assured the free inhabitants of each State, save 'paupers, vagabonds, and
fugitives from justice,' the privileges and immunities of citizenship of the
several States, and the right of free ingress and egress to and from each State.

16

But there was incongruity in superimposing the English anti-migratory policy

upon the law of America:

17

'Vast movements of people motivated by urgent economic need settled this

country from Europe, pushed settlement westward and fed growing cities from
rural population reservoirs. England's Enclosure Acts, by withdrawing land
from agricultural use, swelled the army of English vagrants; America invited

migration with the lure of free land. The same elements of the population who
on one side of the Atlantic were rogues and vagabonds, on the other were
frontiersmen.'5
18

America's vagrancy laws were expanded to cover a host of acts other than
wanderingbegging, drunkenness, disorderly conduct, loitering, prostitution,
lewdness, narcotics peddling, and so on. They were justified here, as in early
England, as devices of control. This Court, writing in 1837, said:

19

'We think it as competent and as necessary for a state to provide precautionary

measures against the moral pestilence of paupers, vagabonds, and possibly
convicts; as it is to guard against the physical pestilence, which may arise from
unsound and infectious articles imported, or from a ship, the crew of which
may be labouring under an infectious disease.' City of New York v. Miln, 11
Pet, 102, 142143, 9 L.Ed. 648.

20

The wanderer, the pauper, the unemployedall were deemed to be potential

criminals. As stated by the Court of Appeals for the District of Columbia
Circuit in District of Columbia v. Hunt, 82 U.S.App.D.C. 159, 161, 163 F.2d
833, 835, 'A vagrant is a probable criminal; and the purpose of the statute is to
prevent crimes which may likely flow from his mode of life.' The vagrant,
therefore, is not necessarily one who has committed any crime but one who
reflects 'a present condition or status.' Handler v. Denver, 102 Colo. 53, 58, 77
P.2d 132, 135. Cf. Ex parte Branch, 234 Mo. 466, 470471, 137 S.W. 886,
887. That condition is not a failure to make a productive contribution to society,
for the idle rich are not reached. The idle pauper is the target. Insofar as that
status reflects pauperism it suggests the need for welfare; and insofar as it
reflects idleness it suggests the need for the intervention of employment
agencies. I do not see how under our constitutional system either of those
elements can be made a crime. To do so serves the cause either of arrests and
convictions on suspicion or of arrests and convictions of unpopular minorities
(Edelman v. People of State of California, 344 U.S. 357, 366, 73 S.Ct. 293,
298, 97 L.Ed. 387, dissenting opinion)procedures very convenient to the
police6 but foreign to our system.

21

I do not see how economic or social status can be made a crime any more than
being a drug addict can be. Robinson v. State of California, 370 U.S. 660, 668,
82 S.Ct. 1417, 1421, 8 L.Ed.2d 758 (concurring opinion).7 No overt act of
criminal dimensions is charged here. Petitioner was either arrested on
suspicion8 or for innocent acts9 which were used as a cloak for an arrest on
grounds the police could not establish. In either event the arrest and conviction
were, in my view, unconstitutional.

22

APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS, DISSENTING.

GUITARIST CONVICTION STIRS PROTEST

By STERLING SEAGRAVE
The Washington Post
June 14, 1963
23

Eddie Hicks, the 25-year-old Dupont Circle troubadour convicted of vagrancy

because he spent his afternoons playing a guitar in Dupont Circle, was given a
suspended sentence yesterday.

24

The American Civil Liberties Union announced it would appeal the Hicks case
and attack the constitutionality of his conviction under the vagrancy statute.
The ACLU said the statute was unclear and was being used by police to
persecute Hicks and others who were only enjoying themselves innocently in a
public park.

25

The young troubadour was arrested by a Park Policeman Wednesday after

being warned not to play his guitar in Dupont Circle. As a result, residents of
the area and 'regulars' in the park are protesting what they consider an invasion
of their right to assemble in peaceful recreation.

26

Top officials of the Interior Department spoke out in favor of guitar playing and
folk singing as a 'wholesome activity that should not be disturbed but
encouraged' in the Nation's public parks.

27

At the trial Wednesday, Park Policeman James E. Thomas told Judge Thomas
C. Scalley that Hicks was unemployed. Hicks testified that he was only visiting
Washington for a few weeks and that he had shown Thomas a $20 bill when
the policeman had threatened to arrest him for vagrancy if he ever came back
to Dupont Circle.

28

When he was arrested Wednesday, Hicks was sitting on a bench with a friend,
his guitar in a case and money in his pocket, testimony showed.

29

At the sentencing yesterday, Judge Scalley told the minstrel that he was
suspending sentence and that Hicks was free on 'personal bond.' The conviction
went down on his record, however.

30

Reaction came swiftly. At Dupont Circle, angry sympathizers plotted a

demonstration.

31

'If they are going to stick that boy with a vagrancy conviction just for playing a
guitar, they're going to have to arrest several hundred of us. We've been playing
guitars there for years,' said one.

32

The regular habitues of Dupont Circle on any given day are neighborhood
residents, retired folk, families who pause on a stroll in the summer sun,
children who play porpoise in the fountain, couples who doze on the grass, and
students.

33

The students were priced out of Georgetown, moved to Foggy Bottom, then
relocated to the DuPont Circle area when urban renewal closed Foggy Bottom
to them.

34

They live for blocks around the Circle in low-rent rooming houses, studios and
shared apartments. Most are poor, some are out of school temporarily to work
evenings and part-time wherever they can find jobs.

35

Generally, they are clean-cut, neatly dressed in sports clothes, articulate, quiet
and yet quick to take offense when they think civil authorities are breathing too
closely on their necks.

36

When they can, they play chess in the Circle, around the fountain, argue ageold questions, or gather around the talented and untalented guitarists among
them for spontaneous folk music sessions that quickly draw the interest and
amusement of passers-by.

37

On recent Sundays, spontaneous 'hootenannys' have started out of nothing,

drawing small crowds which sat listening on the grass.

38

On May 19, Park Policemen routed the last hootenanny, sending everyone
scurrying for cover. Attorney Arthur Neuman was passing by and snapped
pictures.

39

'It was a peaceful, lawful assembly,' Neuman said yesterday. 'There was no
disturbance and it was commendable and refreshing to see young people
engaged in good social behavior rather than roaming the streets committing
crimes.'

40

Capt. Raymond S. Pyles, chief of the Third Precinct which includes the Circle,
reported, 'I cannot recall a single complaint about them.'

41

Walter Pozen, assistant to Secretary of the Interior Stewart Udall, said, 'Not
only do I think they shouldn't be singled out they should be encouraged. The
parks are there for recreation and general use.' 'There's no rule I know against
playing in a park,' said Conrad Wirth, director of the National Park Service. 'I
like music myself.'

42

Charles Wolfram, the ACLU attorney who will champion Hicks when the case
is appealed, said yesterday that his attack would be against three sections of the
vagrancy statute.

43

The statute describes a vagrant as 'immoral, profligate and dissolute (with) no

lawful means of employment or support, without any settled home.'

44

'First,' Wolfram said, 'the word 'dissolute' is so vague you can't tell what it
forbids. Second, the statute discriminates against the poor and the unemployed.
Third, it is used by police as carte blanche to harass anyone they personally
dislike.'

45

Looking back at the whole episode, attorney Neuman said, 'If a man chooses to
spend his life playing a guitar, who has the right to insist that he engage in some
sort of servitude?'

The above assumes that Rule 22(2) applies to this case. Our jurisdiction to
review this decision is not based on 28 U.S.C. 1254(1) (1964 ed.) which we
previously held did not permit review by writ of certiorari of cases where the
Court of Appeals for the District of Columbia Circuit refused to allow an
appeal. Ferguson v. District of Columbia, 270 U.S. 633, 657, 46 S.Ct. 355, 70
L.Ed. 771. Our jurisdiction is founded on the power to issue a common-law
writ of certiorari. House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739; 28
U.S.C. 1651(a) (1964 ed.). Arguably, Rule 22(2) has no application in cases
involving extraordinary writs. Rule 31 which governs the procedure on
applications for extraordinary writs imposes no time limit.

III Stephen, History of the Criminal Law of England 203 et seq. (1883).

Id., at 266: see II Holdworth, History of English Law 459 462 (1927). The
purpose of these statutes was to offset the loss of workers and to check the rise

in wages which resulted from the Black Death. Those able to work, and lacking
other means of support were compelled to work, and at regulated wages.
Workers were confined to their existing place of residence. Stephen suggests
that the 'object of this legislation was to provide a kind of substitute for the
system of villainage and serfdom, which was then breaking down * * *.'
Stephen, op. cit. supra, at 204. See also Kenny's Outlines of Criminal Law 411
(Turner ed. 1958). Early laws forbidding begging distinguished between
beggars 'able to serve or labor' and 'beggars impotent to serve.' See, e.g., 12
Rich. 2, c. 7. Economic conditions changed; when work became scarce,
laborers were forced to look elsewhere. The focus of the laws dealing with
laborers shifted; the ban on migration became a preventive to keep a parish
from being saddled with the needs of foreign paupers and idlers. 'The vagrant
came to be regarded rather as a probable criminal than as a runaway slave. He
must be made to work or else be treated as a criminal.' Stephen, op. cit. supra,
at 274.
4

Stephen, op. cit. supra, at 267.

Foote, Vagrancy-Type Law and Its Administration, 104 U.Pa.L.Rev. 603, 617
(1956). And see Scott, Criminal Law in Colonial Virginia 272275 (1930).

Foote, op. cit. supra, n. 5, at 625 et seq.

The volume of vagrancy cases in the courts each year is large. The most recent
FBI Crime Reports show that in 1964, in 3,012 cities with populations
exceeding 2,500, 125,763 vagrancy arrests were made (out of a total of
4,155,924 arrests for that same period). Uniform Crime Reports1964, p. 120.

For the prevalency of arrests 'on suspicion' or 'for investigation' in the District
of Columbia, see Report and Recommendations of the Commissioners'
Committee On Police Arrests for Investigation (the Horsky Report), July 1962.

He was either arrested for playing a guitar in a park (see Appendix) or for
sleeping in a men's room (cf. Jean Valjean in Victor Hugo's Les Miserables),
for the information reads as follows:
'Eddie J. Hicks late of the District of Columbia aforesaid, on or about the 19th
day of May in the year A.D. nineteen hundred and sixty three, in the District of
Columbia aforesaid, and on Dupont Circle north, west, was then and there, and
has been since that day and still is a vagrant, to wit; a person leading an
immoral and profligate life who has no lawful employment and who has no
lawful means of support realized from a lawful occupation and source and who
wanders abroad and lodges in a public park and public comfort stations, living
upon the charity of others, and who lives idly and without any settled home,

and otherwise leading a profligate life.'