This is a review of an unpublished court of appeals' decision which reversed an order of the Circuit Court for Milwaukee County, Honorable Russell W. Stamper, Judge. The circuit court had ruled that Milwaukee City Ordinance 106-31(1)(a),
There are four issues on this review. First, is Milwaukee City Ordinance 106-31(1)(a), unconstitutionally vague? We conclude it is not. Second, is Milwaukee City Ordinance 106-31(1)(a), unconstitutionally overbroad? We hold it is not. Third, do Milwaukee City Ordinance 106-31(1)(a), and sec. 800.02(6), Stats., violate the fourth amendment? We conclude they do not. Fourth, has the City of Milwaukee (City) exceeded its municipal power by enacting an ordinance which allows for arrest on reasonable suspicion? We conclude that the ordinance only allows arrest where there is probable cause to believe the ordinance has been violated and therefore, the City has not exceeded its power.
This ordinance allows a very modest and relatively unobtrusive inquiry by police officers of those whose loitering or prowling under circumstances described in the ordinance arouses suspicion of potential criminal activity. Several courts have wisely upheld this very type of ordinance. We join them.
From about a block and a half away, the officers, using binoculars, observed Nelson and another person shaking hands with pedestrians and automobile passengers. The handshake was described as a clasping of the fingers together, twisting them back and forth and then reclasping them. The handshakes were characterized as "friendly." Nelson would approach the automobiles and lean toward the passenger door, resting his hands just inside the window. At no time did the officers observe an exchange of money or other items. They did not know Nelson and they had no information that he was a suspect or was wanted in connection with any crime. After about fifteen minutes, the officers approached Nelson and his companion in their squad car and Nelson and his companion hurriedly entered the tavern.
The officers circled the block and returned to their initial observation point. Shortly thereafter, Nelson and the other person emerged from the tavern and resumed shaking hands with pedestrians and automobile passengers. The officers waited another five to ten minutes and then reapproached Nelson in their squad car. Nelson quickly reentered the tavern. This time, however, the officers followed him inside and asked him what he was doing outside the tavern to which he
Nelson was "patted down" but no weapon was found.
In a separate action Nelson pled guilty in municipal court to violating the loitering ordinance. On the criminal charges, however, Nelson's counsel filed various pretrial motions including a motion to suppress evidence obtained from an illegal arrest and a motion to dismiss the complaint.
A suppression hearing was held which included testimony by the arresting police officers. At the end of the hearing, Nelson's counsel orally requested a declaratory judgment pursuant to sec. 806.04, Stats., to declare the Milwaukee Loitering Ordinance unconstitutional. Counsel for Nelson also challenged the constitutionality of an arrest for an ordinance violation and the extension of the municipality's police power in allowing such an arrest.
A written motion for declaratory judgment as to the constitutionality of the loitering ordinance and sec. 800.02(6), Stats., was filed with the circuit court. This
Although not a party in the criminal proceeding, the City appeared and filed a brief arguing that it could not be made a party to a declaratory judgment action arising from a state criminal action. The City also contended the ordinance was constitutional.
After taking briefs on the various issues, the circuit court rendered an oral decision on the matter on November 18, 1986, and a written decision on November 21, 1986. It ruled that the ordinance, alone and in combination with sec. 800.02(6), Stats., violated the fourth amendment of the United States Constitution and art. I, sec. 11 of the Wisconsin Constitution by allowing an arrest on less than criminal probable cause. The circuit court also held the ordinance was unconstitutionally vague and overbroad. In addition, the circuit court found no evidence of probable cause to believe that Nelson had violated the ordinance.
In an unpublished opinion, the court of appeals reversed the judgment of the circuit court. It held that Nelson's conduct fell within the "hard core" proscriptions
The Milwaukee Loitering Ordinance 106-31(1)(a), is patterned after sec. 250.6 of the Model Penal Code (Official draft, 1962) which was drafted by the highly respected American Law Institute. Extraordinary care
Wechsler, "The Model Penal Code and the Codification of American Criminal Law" in Crime, Criminology and Public Policy 419, 421 (R. Hood ed. 1976).
The ALI's effort was widely accepted. It is said that "nearly forty states have recodified their criminal laws, using the Code as the lodestar." Singer, Foreward, Symposium: The 25th Anniversary of the Model Penal Code, 19 Rutgers L.J. 519 (1988).
More specifically, sec. 250.6 of the Model Penal Code underwent thorough analysis before it was approved in its final form by the ALI. In its comments to sec. 250.6, the ALI discusses the constitutional implications of loitering statutes from the United States Supreme Court opinion in Papachristou, et al., v. City of Jacksonville, 405 U.S. 156, 162 (1972) to numerous state court decisions concluding that, "[i]f even the Model
Some courts have held statutes and ordinances based on this section of the Model Penal Code unconstitutional. See Fields v. City of Omaha, 810 F.2d 830 (8th Cir. 1987); (identification portion held unconstitutionally vague); City of Portland v. White, 9 Or.App. 239, 495 P.2d 778 (1972); City of Bellevue v. Miller, 85 Wn.2d 539, 536 P.2d 603 (Wash. 1975). Others, including the Wisconsin Court of Appeals, have found them constitutional. State v. Wilks, 117 Wis.2d 495, 345 N.W.2d 498 (Ct. App. 1984), aff'd. on other grounds, 121 Wis.2d 93, 358 N.W.2d 273 (1984), cert. denied 471 U.S. 1067 (1985). Other courts that have ruled in a similar manner are: State v. Ecker, 311 So.2d 104 (Fla. 1975); cert. denied 423 U.S. 1019 (1975); Bell v. State, 252 Ga. 267, 313 S.E.2d 678 (1984); In addition, this court has noted that in many cases where loitering ordinances were held invalid "the courts have suggested to the legislature that they accept a more palatable version of the loitering statute, such as sec. 250.6 of the Model Penal Code ...." State v. Starks, 51 Wis.2d 256, 265, 186 N.W.2d 245 (1971). We find the reasoning of the courts who have approved the Model Penal Code to be more persuasive.
The constitutionality of an ordinance is a question of law which this court decides without deference to the lower court's reasoning. Kmiec v. Town of Spider Lake, 60 Wis.2d 640, 645, 211 N.W.2d 471 (1973). "It is elementary that an ordinance is presumed to be constitutional and that the attacking party must establish its invalidity beyond a reasonable doubt." J & N Corp. v. Green Bay, 28 Wis.2d 583, 585, 137 N.W.2d 53 (1965). "This court will not interfere with a municipality's exercise of police power unless it is clearly illegal." Id. Every presumption must be indulged to sustain an ordinance's constitutionality if at all possible. Where doubt exists as to the constitutionality, it must be resolved by finding the legislative enactment constitutional. See Racine Steel Castings v. Hardy, 144 Wis.2d 553, 559, 426 N.W.2d (1988).
Nelson's counsel contends the ordinance is unconstitutionally vague:
Milwaukee v. Wilson, 96 Wis.2d 11, 16, 291, N.W.2d 452 (1980) (footnotes omitted).
In Starks, this court struck down a general vagrancy statute as vague and overbroad. Starks, 51 Wis. 2d at 265. The term "loitering" was held unconstitutionally vague unless it was limited as to scope, place, or purpose. Id. We conclude the Milwaukee city ordinance before us now has specifically met that objection.
One is not in violation of the ordinance by just "loitering." Rather, one must be loitering or prowling "in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity." Certain factors are listed which may be considered in determining whether alarm is warranted: flight at the appearance of a police officer, failure to identify oneself, and attempts to conceal oneself or objects. Although flight and failure to answer an officer's question by itself may be a constitutionally protected activity, surrounding circumstances may lead such action to constitute probable cause that an offense has been committed. See Kolender v. Lawson, 461 U.S. 352, 366, n. 4 (1983) (Brennan, J., concurring).
Furthermore, the police must give the suspect the opportunity to "dispel any alarm which would otherwise be warranted" prior to an arrest if such circumstances are possible. If no such opportunity is given, there can be no conviction of the offense. Ultimately, it
"Impossible standards" of clarity are not required. Kolender, 461 U.S. at 361. "There are areas of human conduct where, by the nature of the problems presented, legislatures simply cannot establish standards with great precision." Smith v. Goguen, 415 U.S. 566, 581 (1974). We conclude that the ordinance here is constitutional in that it provides sufficient notice and guidelines to law enforcement officials, judges, and ordinary citizens by limiting the term "loiter" in scope, place, or purpose. A similar Milwaukee city ordinance prohibiting prostitution was upheld against a vagueness claim in Milwaukee v. Wilson, 96 Wis. 2d at 19.
Other courts that have examined similar codifications of the Model Penal Code section on loitering have held it constitutional. In Bell v. State, 313 S.E.2d 678 (1984), the Georgia Supreme Court approved an almost identical version of sec. 250.6 against attacks of vagueness. It found the statute in question passed the two necessary requirements for surviving a vagueness attack: "The statute, when read as a whole, passes constitutional muster in advising persons of ordinary intelligence of the conduct sought to be prohibited ... [and] the statute also defines the offense in terms which discourage arbitrary enforcement." Id. 313 S.E.2d at 681. The court reasoned that the "offense of loitering is committed only when the actor engages in conduct `not usual for law abiding individuals' which creates `a reasonable alarm or immediate concern for the safety of persons or property in the vicinity.'" Id. To an argument that "usual" is vague, the court responded that the phrase is made clear by the clause which provides
In Ecker, 311 So.2d 104 (1975), the Florida Supreme Court upheld a state statute identical to sec. 250.6 against an attack for vagueness. After analyzing cases where similar loitering statutes were upheld and dissimilar statutes were struck down, the Florida court said as to the similar constitutionally valid statutes, "there is an important common thread in each of the
We conclude the ordinance is not unconstitutional on grounds of vagueness.
The loitering ordinance is also challenged on overbreadth grounds. "A statute or ordinance is overbroad when its language, given its normal meaning, is so sweeping that its sanctions may be applied to conduct which the state is not permitted to regulate." Wilson, 96 Wis. 2d at 19. An ordinance which is overbroad is one which burdens or punishes activities which are constitutionally protected. See State v. Princess Cinema of Milwaukee, 96 Wis.2d 646, 655, 292 N.W.2d 807 (1980). Overbreadth in an ordinance must be real and substantial when it is judged relative to the ordinance's "plainly legitimate sweep." Id. 96 Wis. 2d at 656 (citing Ward v. Illinois, 451 U.S. 767 (1977)).
The vagrancy statute held overbroad in Starks, 51 Wis.2d 256, is a far cry from the ordinance at issue here. This court criticized the Starks statute because it could sweep up anyone "near any structure, vehicle or private grounds." Id. 51 Wis. 2d at 264. No unlawful activity was required to be found by the Starks statute. Id. Furthermore, the statute in Starks required the subject to give his account for being there to no particular person. Id. On the other hand, the ordinance here requires an officer to determine if the person is in a place, at a time and conducting himself in a manner not usual for law-abiding people under circumstances that warrant alarm to the officer. The ordinance also requires the officer to question the suspect allowing him to dispel any alarm caused to the officer.
Determining that an ordinance or a statute, as applied to a particular defendant, is not overbroad does not end an overbreadth analysis. In order to assert a
We find it highly unlikely that someone taking a stroll, sitting on a park bench, seeking shelter in a doorway from the elements, or shaking hands while politically campaigning, would be doing so in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant alarm to police officers for the safety of persons or property
We conclude the ordinance is not unconstitutionally overbroad.
Nelson makes several arguments that the ordinance and sec. 800.02(6), Stats., violate both art. I, sec. 11, of the state constitution and the federal Constitution's fourth amendment protection against unreasonable seizures. The standards and principles surrounding the fourth amendment are also generally applicable to art. I, sec. 11, of the Wisconsin Constitution. State v. Paszek, 50 Wis.2d 619, 624, 184 N.W.2d 836 (1971). "[A] finding of probable cause under federal standards will normally result in a finding of probable cause under state standards." Id.
First, Nelson contends the ordinance is unconstitutional because there is no statutory criminal counterpart to require probable cause to believe that a crime has been committed for a warrantless arrest. Section 800.02(6), Stats., specifically authorizes arrests for
Because a violation of a municipal ordinance is not a crime, State v. Kramsvogel, 124 Wis.2d 101, 116, 369 N.W.2d 145 (1985) cert. denied, 474 U.S. 901 (1985), counsel for Nelson argues that arresting for a municipal ordinance violation without a criminal statutory counterpart does not meet the constitutional probable cause requirement. A "reasonable grounds" for arrest has been equated to mean "probable cause." Johnson v. State, 75 Wis.2d 344, 348, 249 N.W.2d 593 (1977). We therefore hold that the reasonable grounds standard as stated in sec. 800.02(6), Stats., is also synonymous with the constitutional standard of probable cause. See also Wilks, 117 Wis. 2d at 507.
Whether an arrest is "constitutionally valid depends ... upon whether, at the moment the arrest is made, the officers had probable cause to make it— whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91 (1964) (citations omitted) (emphasis added). See also, Michigan v. DeFillippo, 443 U.S. 31 (1979); Carroll v. United States, 267 U.S. 132, 162
"As a matter of constitutional law, ... any person lawfully arrested for the pettiest misdemeanor may be temporarily placed in custody." Robbins v. California, 453 U.S. 420, 450 (1980) (Stevens, J., dissenting) (footnote omitted). The question of whether there are constitutional limits on arrests for relatively minor offenses has not yet been answered by the United States Supreme Court. Id. at n. 11.
In Fisher v. Washington Metro. Area Transit Authority, 690 F.2d 1133 (4th Cir. 1982), this very question of the constitutionality of an arrest for a minor offense was considered. The defendant there challenged an arrest for an ordinance violation of eating on a train. Responding to her argument that an arrest for an offense that was only punishable by a fine was unconstitutional, the court after noting the United States Supreme Court had not decided the issue, stated:
Fisher, 690 F.2d at 1139 n. 6.
We agree with the Fisher court that until otherwise held by the United States Supreme Court, a custodial arrest for offenses whose penalties are only civil forfeitures is not per se unconstitutional. See also Gladden v. Roach, 864 F.2d 1196 (5th Cir. 1989) (probable cause requirement fulfilled for an arrest pursuant to a disorderly
Furthermore, in DeFillippo, the United States Supreme Court reviewed an arrest made for a violation of a Detroit city ordinance which was a misdemeanor offense. Although not specifically deciding whether such an arrest violates the fourth amendment, the Court stated "[w]hether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law." DeFillippo, 443 U.S. at 36.
In general, "statutes expressly authorize police officers to arrest without process for offenses against the laws of the municipality, committed in their presence." 16A E. McQuillin, The Law of Municipal Corporations, sec. 45.18, 122 (3rd Ed. 1984). In situations where ordinance violations are less than misdemeanor offenses, "an officer may arrest without a warrant for such violations committed in his or her presence if authorized to do so by statute ...." 9 Id. sec. 27.11, 294. See also E. Fisher, Laws of Arrest, 162 (1973 ed.). As noted above, sec. 800.02(6), Stats., authorizes arrests for ordinance violations. See also Mustfov v. Rice, 663 F.Supp. 1255, 1269 (D. Ill. 1987) ("[U]nder Illinois law a police officer is authorized to arrest those
We also note that it has long been established in Wisconsin that a law enforcement officer may make a warrantless arrest of a person if the officer has "probable cause to believe the person was committing ... an ordinance violation." State v. Welsh, 108 Wis.2d 319, 343, 321 N.W.2d 245 (1982) (Abrahamson, J., dissenting), rev'd. on other grounds, 466 U.S. 740 (1984). An officer, however, may make a warrantless arrest only if the ordinance violation was "committed in the officer's presence unless other factors" existed. Id.
Thirdly, Nelson argues that even if an arrest for an ordinance violation is constitutional, sec. 800.02(6), Stats., violates due process by failing to provide statutory or administrative guidelines to govern law enforcement officials as to when to arrest or issue a written citation. We conclude the statute only authorizes arrests pursuant to ordinance violations and does not establish guidelines for when to make an arrest. One must look to the ordinance allegedly violated for any "guidelines" in governing enforcement procedures. The ordinance in this case does establish certain minimal requirements for arrest which we find to be constitutionally reasonable.
By the very terms of the ordinance, a violation occurs "under circumstances that warrant alarm for the safety of persons or property in the vicinity." Where such situations occur, it is not unreasonable to believe arrest might be warranted. See Cassidy v. Ceci, 320 F.Supp. 223, 226 (1970) (statute is reasonably clear where the officer's authorization to arrest is based on whether it is reasonable to believe there might be possible injury arising out of its violation). In addition, the officer must
Nelson points to sec. 968.085(2), Stats.
As the defendant did in Wilks, Nelson attacks the ordinance, claiming it does not contain a probable cause requirement. The Wilks court concluded the ordinance did contain a probable cause standard because "the officers need more than just mere circumstances that warrant alarm" to make an arrest. Wilks, 117 Wis. 2d at 507. The ordinance also requires the individual to be loitering or prowling in a place, at a time, or in a manner not usual for law abiding individuals. Id. The Wilks court also noted that, as a further safeguard to assuring probable cause, the ordinance allows the individual to dispel any alarm by explaining his or her conduct. Id.
We conclude the ordinance and sec. 800.02(6), Stats., do not violate art. I, sec. 11 of the Wisconsin Constitution or the fourth amendment of the United States Constitution.
Finally, Nelson contends that by allowing arrest for "suspicious conduct," the ordinance represents a broadening of police authority beyond the constitutional and statutory parameters with which the City is granted.
Nelson contends that, because the City has passed an ordinance extending police authority to arrest beyond the constitutional and statutory requirements of probable cause, the City has exceeded its municipal powers. "Municipalities in Wisconsin have no inherent powers. They are authorized, however, to regulate local
Loitering, by its very nature requires a "proactive" response by the police rather than "reactive." Proactive responses are those which prevent crime before it happens. People v. Nowak, 363 N.Y.S.2d 142, 145, 46 A.D.2d 469 (1975). Many actively involved in law
In conclusion we hold that Milwaukee City Ordinance No. 106-31(1)(a), is not unconstitutionally vague or overbroad. We also hold that the ordinance does not violate the state and federal constitutional protections against unreasonable seizures. We further conclude that by enacting the ordinance, the City of Milwaukee has not exceeded the power granted to it. Accordingly, we affirm the court of appeals.
By the Court.—The decision of the court of appeals is affirmed.
DAY, J. (concurring).
Government furnishes us with very little police "protection." What we have mainly is police "reporting" of crime and investigation after the crime is committed and then hopefully apprehension of the criminal.
Our rising crime rates and fear in which our citizens live is testimony to the fact that we desperately need police protection from those bent on causing us harm. The United States Department of Justice, in its survey of public opinion about crime in Milwaukee, concluded, "a majority [81%] of Milwaukee residents were of the opinion that crime in the United States was on the increase, that the problem of crime was as serious as portrayed by the news media, if not more so, and that their own chances of being criminally victimized had risen. Most also believed that people in general had curtailed their activities because of fear of crime." United States National Criminal Justice Information and Statistics Service, Pub. No. 50-NCS-C 25, Milwaukee: Public Attitudes about Crime, 3 (Dec. 1978).
One of the few tools that government has tried to furnish to the police for protection of the public is this very type of law, the loitering and prowling ordinance enacted by the City of Milwaukee.
The dissent's opening sentence says, "[P]revention of crime is obviously preferable to apprehension and punishment of criminals after the commission of an offense."
The dissent then takes a position, however, that would thwart such a goal by arguing that the Milwaukee Loitering Ordinance is unconstitutional.
While the majority opinion cites those court decisions that have upheld the anti-loitering provisions of the Model Penal Code the dissent relies on the rationale of those courts that would strike down such an ordinance.
In the Milwaukee Loitering Ordinance, however, it is conduct, not a failure to answer a peace officer's inquiry that raises the possibility of arrest. The suspect is merely provided an opportunity to explain his behavior and the alarm warranted by it before an arrest may be made. The Court in Kolender only addressed the vagueness of the identification portion of the California statute. The Milwaukee Ordinance has no such identification requirement.
The dissent in such reliance quotes from Kolender the words, "harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure." (Dissent, page 472.) The inference is that unscrupulous police might harass persons for reasons other than the legitimate concerns embodied in this ordinance. Any law or ordinance may be subject to abuse. But we have other laws designed to curb and punish such abuses as the many civil rights
There is a growing and laudable concern for "victims rights." But the greatest right is the right not to be a victim in the first place. This ordinance is properly designed to thwart those who intend to victimize.
The Washington Supreme Court has stated, "[t]he importance of loitering ordinances cannot be minimized. They are necessary for the protection of society and for the preservation of the public peace." Seattle v. Drew, 70 Wn.2d 405, 412, 423 P.2d 522, 526 (1967). See also State v. Ecker, 311 So.2d 104 (Fla. 1975); Sherry, Vagrants, Rogues and Vagabands—Old Concepts in Need of Revision, 48 Cal. L. Rev. 557, 566 (1960). I agree. The Seattle court held the particular ordinance before it unconstitutional but then gave its approval to the language in Model Penal Code sec. 250.6. Id.
The drafters were keenly aware of the problems presented by the old loitering statutes. They stated, "the offense is not made out simply by the fact of loitering but requires circumstances such that the actor's behavior justifies alarm for the safety of persons or property." A.L.I. Model Penal Code sec. 250.6, Commentary at 391 (hereinafter MPCc). The drafters went further, "this formulation limits the offense to its essential law enforcement rationale of justifying intervention
MPCc, at 390.
We suffer from an ever increasing amount of violent crime. Much is written about the societal need to prevent the commission of criminal acts. This ordinance is a step in the right direction.
Prevention of crime is obviously preferable to apprehension and punishment of criminals after the commission of an offense. I do not believe, however, that the loitering ordinance at issue in this case is a constitutional means of attaining the important goals of crime prevention and deterrence.
The majority opinion finds the reasoning of the courts upholding similar loitering laws persuasive. I do not. I agree with the reasoning of the courts who have found similar loitering laws unconstitutionally vague. Therefore I dissent.
The Milwaukee Loitering Ordinance is based, as the majority opinion explains, on sec. 250.6 of the 1962 Model Penal Code. The Reporters who drafted commentaries to sec. 250.6 in 1980 themselves expressed concerns about its constitutionality.
Vagueness is a due process issue under the fourteenth amendment to the United States Constitution. The courts use a two part analysis to test a statute challenged on the grounds of vagueness: First, the statute must define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited (notice requirement). Second, the statute must define the offense in a manner that does not encourage arbitrary and discriminatory enforcement (requirement of minimal guidelines to govern law enforcement). Those charged with enforcing or applying the law cannot be relegated to creating their own standards of culpability instead of applying the standards prescribed in the law. See State v. Courtney, 74 Wis.2d 705, 711, 247 N.W.2d 714 (1976); State v. Starks, 52 Wis.2d 256, 262-63, 186 N.W.2d 245 (1971); Papachristou v. City of Jacksonville, 405 U.S. 162, 168-70 (1972); Kolender v. Lawson, 461 U.S. 352, 357-58 (1983).
The ordinance makes a person who "loiters or prowls in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity" culpable.
The word "loitering" connotes the act of hanging around without any apparent purpose. A law that prohibits loitering without further definition is unconstitutionally vague because it fails to distinguish between innocent conduct and conduct calculated to cause harm. Such a law fails to give adequate notice of what conduct is proscribed. See State v. Starks, supra 51 Wis. 2d at 263; City of Portland v. White, 495 P.2d 778, 779 (1972); City of Seattle v. Drew, 423 P.2d 522, 524 (Wash. 1967); Papachristou v. Jackson, 405 U.S. 156, 162 (1972); People v. Bright, 71 N.Y.2d 376, 520 N.E.2d 1355, 1359 (1988).
Nor do the identification and explanation provisions of the ordinance cure the vagueness defect. There is no indication in the ordinance of the nature of the identification or explanation that might be adequate to dispel an officer's alarm.
In this case the defendant's response to the officer's question of what he was doing was "nothing." The very essence of loitering is "doing nothing." "Doing nothing" may be very suspicious conduct and "nothing" is hardly an explanation of one's conduct. But clearly the ordinance cannot constitutionally make a person culpable for doing nothing.
Courts have concluded that similar identification and explanation requirements in loitering laws are void for vagueness because they do not provide a standard for law enforcement officers to determine what a suspect has to do in order to satisfy the requirement. See, e.g., Kolender v. Lawson, supra, 461 U.S. at 358; People v. Berck, 32 N.Y.2d 567, 300 N.E.2d 411, 414 (1973); People v. Bright, supra, 520 N.E.2d at 1360.
The Milwaukee ordinance gives the suspect, upon being stopped, the opportunity to dispel any alarm, and thus avoid arrest. Like the statute in Kolender, the Milwaukee ordinance leaves the definition of this "opportunity" entirely up to the individual judgment of the police officer making the stop. It is the police officer who determines, without significant guidance from the ordinance, what circumstances cause "alarm," and it is the police officer who decides, again without significant guidance from the ordinance, whether the suspect has adequately dispelled that alarm by identifying himself or herself and explaining his or her presence and conduct. The ordinance leaves all of the critical definitions up to the discretion of law enforcement and so, under Kolender, it violates the federal Constitution.
The majority concludes that the Milwaukee loitering ordinance meets the objections this court articulated in Starks. At 447. I conclude that the loitering ordinance, like the statute struck down in Sparks, does not meet the standards the United States Supreme Court has established. Accordingly I dissent.
I am authorized to state that Chief Justice Nathan S. Heffernan joins in this dissent.
The record shows the State of Wisconsin declined to participate in the appeal to the court of appeals or in the petition for review to this court.
We decline to decide those issues. Both parties have asked this court to reach the constitutional merits of the ordinance regardless of our decision on the issues of the cross-petition. This court may decide the constitutionality of statutes even if the action may be moot if they are of sufficient public importance. See Doering v. Swoboda, 214 Wis. 481, 488, 253 N.W.2d 657 (1934). Because our ruling on the constitutionality of the ordinance is dispositive of the case we decline to decide the issues presented on the cross-petition.
For further discussion of the void for vagueness doctrine and loitering laws, see, e.g., Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers and the Like, 3 Criminal Law Bulletin 205, 216-224 (1967); Note, Stop-and-Identify Statutes After Kolender v. Lawson: Exploring the Fourth and Fifth Amendment Issues, 69 Iowa L. Rev. 1057 (1984); Note, Kolender v. Lawson: Fourth and Inches on Fourth Amendment Issues and Supreme Court Punts, 10 J. Contemp. Law 239 (1984).