☢ test - Í

Johnson v. Athens-Clarke County, 272 Ga. 384, 529 S.E.2d 613 (May 8, 2000). L County loitering and prowling ordinance declared void for vagueness. Ordinance was exactly the same as State statute, upheld against similar challenges in State v. Burch, 264 Ga. 231, 443 S.E.2d 483 (1994), and Bell v. State, 252 Ga. 267, 313 S.E.2d 678 (1984), except that ordinance added the problematic language: “or under circumstances which cause a justifiable and reasonable alarm or immediate concern that such person is involved in unlawful drug activity.” It was under this language that defendant was charged, after officer repeatedly warned him not to loiter in an area the officer described in court as a “known drug area.” 1. Test. “‘Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. [Cit.]’ City of Chicago v. Morales, 527 U.S. 41, 55, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999).” 2. Notice. “an innocent person unfamiliar with the drug culture could stand or sit in a ‘known drug area’ without knowing the area had such a designation, and could return to the area for a legitimate reason, or for no reason at all, and, as the fact of this case show, be subject to arrest and conviction.” Johnson was convicted for repeatedly loitering in a “known drug area,” although there was no evidence he was involved in drugs. “[W]e cannot … readily assume that a person of average intelligence will be sufficiently aware of which locations are ‘known drug areas’ and what innocent-seeming conduct will seem to be drug-related in the opinion of a police officer.” 3. Arbitrary and discriminatory enforcement. “‘If arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis …’ [Cit.] Under our democratic system of government, lawmaking is not entrusted to the moment-to-moment opinions of a policeman on his beat … Vagrancy-loitering ordinances, as carryovers from the feudal ages, tend to be inherently vague so as to allow law enforcement officials to throw as large a net as possible to rid the public of undesirables. However, ‘[t]o the extent the statute can be interpreted to support dragnet, street-sweeping operations absent probable cause of actual criminality, it conflicts with established notions of due process.’ [Cit.] Bullock v. City of Dallas , 248 Ga. 164, 281 S.E.2d 613 (1981).” In the ordinance here, “[t]here are no overt acts necessary to trigger criminal liability under the statute, and no specific guidelines to inform law enforcement officers of what behavior might legitimately bring the officer to believe a person was ‘involved in unlawful drug activity.’ The scope of those words is so broad that it permits speculation in every case whether particular conduct constitutes ‘unlawful drug activity’ and whether any person is ‘involved’ in such illegal activity.” Thelen v. State, 272 Ga. 81, 526 S.E.2d 60 (February 14, 2000). Conviction for noise ordinance violation reversed; ordinance prohibiting “‘any … unnecessary or unusual sound or noise which … annoys … others’ … fails to provide the requisite clear notice and sufficient definite warning of the conduct that is prohibited. [Cits.] ‘The adjectives “unnecessary” and “unusual” modifying the noun “noises” are inherently vague and elastic and require men of common intelligence to guess at their meaning. The same may be said of the verb “annoys.” [Cit.],’” quoting Nichols v. City of Gulfport, 589 So.2d 1280, 1283(II)(B) (Miss., 1991). ‘Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all .’ Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971).” Ordinance also suffers from failure to “define a specific context in which it applies, and “‘impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications. [Cit.],’” quoting Satterfield v. State, 260 Ga. 427, 428, 395 S.E.2d 816 (1990). Context here: complaints from neighbors when defendant would took off and landed in his helicopter from his own dock in a lake community. Boyer v. State, 270 Ga. 701, 512 S.E.2d 605 (February 22, 1999). Reckless conduct statute was not unconstitutionally vague as applied to defendant’s case. State alleged that “Boyer is an employee of a child day care center, and that, while supervising a room of twelve-month old children, she roughly handled a child who would not properly lie down for a nap, including forcefully pushing the child down on a mat by the back of the child’s head.” “[A] constitutional attack to a statute on a vagueness ground that does not involve a First Amendment challenge must be decided on the particular facts of each case,” citing Hall v. State, 268 Ga. 89, 485 S.E.2d 755 (1997). Distinguishes Hall , where mother left her three children ages five and younger with an older child, not quite twelve years old; “[t]his Court determined that ‘[o]rdinary intelligence does not dictate that a statute forbidding the conscious disregard of a substantial risk necessarily encompasses a prohibition against leaving young children in the care of an older child who is almost 12 years old.’ Id. at 92(2), 485 S.E.2d 755. … [U]nlike Hall, Boyer is accused of taking direct, physical, and adverse action against an infant. Boyer’s conduct is more akin to that of the defendant in Horowitz v. State, 243 Ga. 441, 254 S.E.2d 828 (1979), who drove an automobile in a reckless manner (an action which the statute was sufficiently definite to advise him was prohibited). Like Horowitz, Boyer is alleged to have taken affirmative action from which harm might directly result.