Can a person be free to wander without worry of arrest?

Edward C. Lawson is not a lawyer, but one day next fall he plans to stand before the US Supreme Court and argue his case -- a right of any citizen, though few have taken advantage of it.

When Mr. Lawson appears before the high court bench, the justices may hear an impressive plea based on what he calls ''the most important part of the Bill of Rights'' -- the Fourth Amendment, which guarantees ''The right of the people to be secure in their persons . . . against unreasonable searches and seizures. . . . ''

They also will see -- unless court protocol requires that he cut his hair and wear a business suit -- what might have prompted San Diego police to detain or arrest him more than 15 times between March 1975 and January 1977. They will at least see what Lawson believes is the chief reason for these incidents: He is black.

Prosecuted twice for violating Section 647(e) of the California Penal Code, an anti-vagrancy law, Lawson was convicted once. That began a five-year process of appeals that will culminate in the Supreme Court.

Lawson is a bachelor in his mid-30s who heads his own San Francisco-based consulting and entrepreneurial firm. A vegetarian who says he does not smoke, drink, or ''do dope,'' he also is a firm advocate of physical and mental fitness. To help maintain both, Lawson says, he walks everywhere he can. Distances of 10 or 12 miles do not faze him, nor is he concerned about the time consumed.

What did San Diego policemen, patrolling residential or business streets in their cruisers, see that prompted them to stop him? They saw a tall, slender black man striding along the sidewalk or roadside, most likely wearing a plain T-shirt and white trousers. The most outstanding feature is his hair; braided in the style of the Rastafarian religious sect (of which he is not a member), it is just below shoulder length. On his feet are sneakers or basketball shoes. And, if it is late at night and perhaps a little chilly, Lawson might wear a loose-fitting white jacket much like those worn by hospital workers.

Apparently because police saw Lawson walking at certain times and in certain areas in which his presence seemed unusual, they stopped him and demanded identification. He says that the first few times it happened he presented the identification he always carries and explained his presence. After a while, however, he began to feel that this was wrong, and he would ask the police why they wanted him to account for himself. Thus the 15 documented occasions, one of which led to his conviction.

Appeals in the case labeled Lawson v. Kolender (San Diego Police Chief William Kolender) led through state courts to the US District Court, where the judge overruled the conviction and the statute, noting that ''a person who is stopped on less than probable cause cannot be punished for failing to identify himself.'' But the court also ruled that because the arresting officers had acted in ''good faith'' under the law, Lawson could not seek to recover damages from them.

The case then went to the federal Court of Appeals (Ninth Circuit), which on Oct. 15, 1981, upheld the district court's decision holding 647(e) unconstitutional and also ruled that a jury trial must be held to determine whether the policemen had acted in good faith and whether Lawson could collect the $150,000 in damages he seeks.

The court of appeals held that the California law ''intrudes upon the Fourth Amendment's proscription against unreasonable searches and seizures . . . (and) violates the due process clause because it encourages arbitrary and discriminatory enforcement.'' The court also said that the law ''contains a vague enforcement standard which is susceptible to arbitrary enforcement; or . . . fails to give fair and adequate notice of the type of conduct prohibited."

Lawyers for the state attorney general's office and the City of San Diego, who appealed that decision to the Supreme Court, hold that the law is needed by police to help prevent crimes such as robbery, burglary, and rape. They hold that there has been sufficient experience with this and similar laws across the United States to establish safe guidelines for its enforcement.

The California Supreme Court has, in several other cases, upheld the statute under which Lawson was convicted. But the Ninth Circuit Court, in its Lawson decision, cited its own ruling in 1976 striking down ''a vagrancy ordinance from Henderson, Nev., that was virtually identical to Section 647(e).''

Prof. Robert W. Peterson of the Santa Clara University Law School has discussed the upcoming Supreme Court case with Lawson and indicated he may file an amicus curiae (friend of the court) brief. Asked why the high court might have decided to consider the California appeal, Mr. Peterson said that perhaps ''the justices feel there now is enough case law on the statute to provide guidelines for police.''

This suggests that the high court might reverse the circuit court ruling and provide guidelines for officers acting under 647(e) and similar laws in other states.But Peterson makes clear he thinks the California law is too vague: ''If (police) can define the crime, then there is nothing to prevent them stopping anyone, anytime, anywhere, and even arresting them if the cop feels inclined to. It's wide open.

''In Terry v. Ohio, the Supreme Court said you can't stop and frisk (a suspect) unless you have well-founded reason to believe the person may be involved in a crime. But 647(e) makes it a crime to be a 'suspicious person.'

''And there's another thing: Even when an officer doesn't want to charge a person with violation of 647(e), invoking that statute opens the way to search and seizure that might lead to discovering evidence -- or so a cop might think.''

Lawson says he has spent much of the last five years at the law library on the campus of the University of California at Berkeley, studying court precedent on his case and learning legal processes. He has had legal counsel, chiefly American Civil Liberties Union lawyer Robert H. Lynn, who represented him in the Court of Appeals. Mr. Lynn plans to take time off from his practice to sail around the world later this year, and will prepare Lawson's Supreme Court brief before he leaves.

Although Lawson attended college only sporadically and puts little value on formal education, the New York City native is articulate and well-informed. He has no record other than the one conviction in San Diego.

He makes clear that he does not believe it was his hair or the way he dressed that caused police to stop him. Laws like 647(e), he asserts, are directed ''against the prevailing minority'' in many US cities. ''In certain places that means blacks. In other places it means Hispanics. Hippies in the 1960s would routinely and consistently find themselves describing to someone (in law enforcement) where they were going or what they were doing.

''The law becomes a form of instantaneous punishment, to discourage certain kinds of people from being in certain areas,'' says Lawson. ''There is nothing unique about what happened to me. . . . What they were doing was that they were stopping a black who was in an area or (out at) a time that they deemed he should not be.''

To Lawson, his case has become a Fourth Amendment crusade. He says his success so far in ''fighting city hall'' has given him ''singular cause for optimism'' about the power of the individual in American society.

''We live in the shadows of giants -- big business, big labor, big media - that seem to obscure the significance, the value, the self-respect of the individual,'' he says. ''There is a familiar litany: 'Somebody should do something about that, or why doesn't someone change that, or isn't that terrible?' The inadequacies are muttered over the tops of countless newspapers each morning.

''If you ask me what is the significance of the events of the last years (in his court case), it is what can be accomplished in the United States simply by the strength and the resolution and the power of the single individual,'' says Lawson.

''I think it is remarkable that no nation in history of any size has provided in law more individual freedom than the United States. Yet, at the same time, few civilizations have done more, culturally, to discourage it.'' Article IV of the Bill of Rights: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. From Section 647, California Penal Code: Every person who commits any of the following acts is guilty of . . . a misdemeanor: . . . (e) Who . . .wanders upon the streets . . . without apparent reason . . . and who refuses to identify himself when requested by any peace officer . . . if the . . . circumstances are such as to indicate to a reasonable man that the public safety demands . . .

You've read  of  free articles. Subscribe to continue.
QR Code to Can a person be free to wander without worry of arrest?
Read this article in
QR Code to Subscription page
Start your subscription today