This is a preview of how your content will look on export. To export the complete content in DOC format, click the blue export button in the upper right corner of this page.
VII.B. Conspiracy

Conspiracy, unlike complicity, is a standalone crime. Its requirements are very minimal: at common law, only an agreement to commit unlawful actions. The agreement, itself, is the actus reus. Under federal law, an act in furtherance is needed to seal the conspiracy.

Often, proving conspiracy is much easier than proving a completed or attempted crime, and so conspiracy has become a favorite tool of prosecutors to lower the burden of proof, accumulate charges, or increase the number of people implicated in a crime. As you read these cases, consider the distinctions between conspiracy and complicity. Consider also how far liability extends. What is the mens rea for the crime of conspiracy itself? What mens rea is necessary for the subsequent crimes committed in furtherance of the conspiracy? How do the various formulations of conspiracy liability interact with the justifications of punishment—retribution, deterrence, incapacitation, and rehabilitation?

  • 1 Gebardi v. United States

    1
    287 U.S. 112 (1932)
    2
    GEBARDI ET AL.
    v.
    UNITED STATES.
    3
    No. 97.
    4

    Supreme Court of United States.

    5
    Argued October 10, 1932.
    6
    Decided November 7, 1932.
    7

     

    8

    CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

    9

     

    10

    [113] Mr. William F. Waugh for petitioners.

    11

    [115] MR. JUSTICE STONE delivered the opinion of the Court.

    12

    This case is here on certiorari, 286 U.S. 539, to review a judgment of conviction for conspiracy to violate the Mann Act (36 Stat. 825; 18 U.S.C., § 397 et seq.). Petitioners, a man and a woman, not then husband and [116] wife, were indicted in the District Court for Northern Illinois, for conspiring together, and with others not named, to transport the woman from one state to another for the purpose of engaging in sexual intercourse with the man. At the trial without a jury there was evidence from which the court could have found that the petitioners had engaged in illicit sexual relations in the course of each of the journeys alleged; that the man purchased the railway tickets for both petitioners for at least one journey, and that in each instance the woman, in advance of the purchase of the tickets, consented to go on the journey and did go on it voluntarily for the specified immoral purpose. There was no evidence supporting the allegation that any other person had conspired. The trial court overruled motions for a finding for the defendants, and in arrest of judgment, and gave judgment of conviction, which the Court of Appeals for the Seventh Circuit affirmed, 57 F. (2d) 617, on the authority of United States v. Holte, 236 U.S. 140.

    13

    The only question which we need consider here is whether, within the principles announced in that case, the evidence was sufficient to support the conviction. There the defendants, a man and a woman, were indicted for conspiring together that the man should transport the woman from one state to another for purposes of prostitution. In holding the indictment sufficient, the Court said (p. 144):

    14

    "As the defendant is the woman, the District Court sustained a demurrer on the ground that although the offence could not be committed without her she was no party to it but only the victim. The single question is whether that ruling is right. We do not have to consider what would be necessary to constitute the substantive crime under the act of 1910 [the Mann Act], or what evidence would be required to convict a woman under an indictment like [117] this, but only to decide whether it is impossible for the transported woman to be guilty of a crime in conspiring as alleged."

    15

    The Court assumed that there might be a degree of cooperation which would fall short of the commission of any crime, as in the case of the purchaser of liquor illegally sold. But it declined to hold that a woman could not under some circumstances not precisely defined, be guilty of a violation of the Mann Act and of a conspiracy to violate it as well. Light is thrown upon the intended scope of this conclusion by the supposititious case which the Court put (p. 145):

    16

    "Suppose, for instance, that a professional prostitute, as well able to look out for herself as was the man, should suggest and carry out a journey within the act of 1910 in the hope of blackmailing the man, and should buy the railroad tickets, or should pay the fare from Jersey City to New York, she would be within the letter of the act of 1910 and we see no reason why the act should not be held to apply. We see equally little reason for not treating the preliminary agreement as a conspiracy that the law can reach, if we abandon the illusion that the woman always is the victim."

    17

    In the present case we must apply the law to the evidence; the very inquiry which was said to be unnecessary to decision in United States v. Holte, supra.

    18

    First. Those exceptional circumstances envisaged in United States v. Holte, supra, as possible instances in which the woman might violate the act itself, are clearly not present here. There is no evidence that she purchased the railroad tickets or that hers was the active or moving spirit in conceiving or carrying out the transportation. The proof shows no more than that she went willingly upon the journeys for the purposes alleged.

    19

    [118] Section 2 of the Mann Act[1] (18 U.S.C. § 398), violation of which is charged by the indictment here as the object of the conspiracy, imposes the penalty upon "Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting in interstate or foreign commerce . . . any woman or girl for the purpose of prostitution or debauchery or for any other immoral purpose . .." Transportation of a woman or girl whether with or without her consent, or causing or aiding it, or furthering it in any of the specified ways, are the acts punished, when done with a purpose which is immoral within the meaning of the law. See Hoke v. United States, 227 U.S. 308, 320.

    20

    The Act does not punish the woman for transporting herself; it contemplates two persons — one to transport and [119] the woman or girl to be transported. For the woman to fall within the ban of the statute she must, at the least, "aid or assist" someone else in transporting or in procuring transportation for herself. But such aid and assistance must, as in the case supposed in United States v. Holte, supra, 145, be more active than mere agreement on her part to the transportation and its immoral purpose. For the statute is drawn to include those cases in which the woman consents to her own transportation. Yet it does not specifically impose any penalty upon her, although it deals in detail with the person by whom she is transported. In applying this criminal statute we cannot infer that the mere acquiescence of the woman transported was intended to be condemned by the general language punishing those who aid and assist the transporter,[2] any more than it has been inferred that the purchaser of liquor was to be regarded as an abettor of the illegal sale. State v. Teahan, 50 Conn. 92; Lott v. United States, 205 Fed. 28; cf. United States v. Farrar, 281 U.S. 624, 634. The penalties of the statute are too clearly directed against the acts of the transporter as distinguished from the consent of the subject of the transportation. So it was intimated in United States v. Holte, supra, and this conclusion is not disputed by the Government here, which contends only that the conspiracy charge will lie though the woman could not commit the substantive offense.

    21

    Second. We come thus to the main question in the case, whether, admitting that the woman, by consenting, has [120] not violated the Mann Act, she may be convicted of a conspiracy with the man to violate it. Section 37 of the Criminal Code (18 U.S.C, § 88), punishes a conspiracy by two or more persons "to commit any offense against the United States." The offense which she is charged with conspiring to commit is that perpetrated by the man, for it is not questioned that in transporting her he contravened § 2 of the Mann Act. Cf. Caminetti v. United States, 242 U.S. 470. Hence we must decide whether her concurrence, which was not criminal before the Mann Act, nor punished by it, may, without more, support a conviction under the conspiracy section, enacted many years before.[3]

    22

    As was said in the Holte case (p. 144), an agreement to commit an offense may be criminal, though its purpose is to do what some of the conspirators may be free to do alone.[4] Incapacity of one to commit the substantive offense does not necessarily imply that he may with impunity conspire with others who are able to commit it.[5] [121] For it is the collective planning of criminal conduct at which the statute aims. The plan is itself a wrong which, if any act be done to effect its object, the state has elected to treat as criminal, Clune v. United States, 159 U.S. 590, 595. And one may plan that others shall do what he cannot do himself. See United States v. Rabinowich, 238 U.S. 78, 86, 87.

    23

    But in this case we are concerned with something more than an agreement between two persons for one of them to commit an offense which the other cannot commit. There is the added element that the offense planned, the criminal object of the conspiracy, involves the agreement of the woman to her transportation by the man, which is the very conspiracy charged.

    24

    Congress set out in the Mann Act to deal with cases which frequently, if not normally, involve consent and agreement on the part of the woman to the forbidden transportation. In every case in which she is not intimidated or forced into the transportation, the statute necessarily contemplates her acquiescence. Yet this acquiescence, though an incident of a type of transportation specifically dealt with by the statute, was not made a crime under the Mann Act itself. Of this class of cases we say that the substantive offense contemplated by the statute itself involves the same combination or community of purpose of two persons only which is prosecuted here as conspiracy. If this were the only case covered by the Act, it would be within those decisions which hold, consistently [122] with the theory upon which conspiracies are punished, that where it is impossible under any circumstances to commit the substantive offense without cooperative action, the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy either at common law, Shannon and Nugent v. Commonwealth, 14 Pa. St. 226; Miles v. State, 58 Ala. 390; cf. State v. Law, 189 Iowa 910; 179 N.W. 145; see State ex rel. Durner v. Huegin, 110 Wis. 189, 243; 85 N.W. 1046, or under the federal statute.[6] See United States v. Katz, 271 U.S. 354, 355; Norris v. United States, 34 F. (2d) 839, 841, reversed on other grounds, 281 U.S. 619; United States v. Dietrich, 126 Fed. 664, 667. But criminal transportation under the Mann Act may be effected without the woman's consent, as in cases of intimidation or force (with which we are not now concerned). We assume therefore, for present purposes, as was suggested in the Holte case, supra, 145, that the decisions last mentioned do not in all strictness apply.[7] We do not rest [123] our decision upon the theory of those cases, nor upon the related one that the attempt is to prosecute as conspiracy acts identical with the substantive offense. United States v. Dietrich, 126 Fed. 664. We place it rather upon the ground that we perceive in the failure of the Mann Act to condemn the woman's participation in those transportations which are effected with her mere consent, evidence of an affirmative legislative policy to leave her acquiescence unpunished. We think it a necessary implication of that policy that when the Mann Act and the conspiracy statute came to be construed together, as they necessarily would be, the same participation which the former contemplates as an inseparable incident of all cases in which the woman is a voluntary agent at all, but does not punish, was not automatically to be made punishable under the latter. It would contravene that policy to hold that the very passage of the Mann Act effected a withdrawal by the conspiracy statute of that immunity which the Mann Act itself confers.

    25

    It is not to be supposed that the consent of an unmarried person to adultery with a married person, where the latter alone is guilty of the substantive offense, would render the former an abettor or a conspirator, compare In re Cooper, 162 Cal. 81, 85; 121 Pac. 318, or that the acquiescence of a woman under the age of consent would make her a co-conspirator with the man to commit statutory rape upon herself. Compare Queen v. Tyrrell, [1894] 1 Q.B. 710. The principle, determinative of this case, is the same.

    26

    On the evidence before us the woman petitioner has not violated the Mann Act and, we hold, is not guilty of a conspiracy to do so. As there is no proof that the man conspired with anyone else to bring about the transportation, the convictions of both petitioners must be

    27

    Reversed.

    28

    MR. JUSTICE CARDOZO concurs in the result.

    29

    [1] "Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate or foreign commerce, or in any Territory or in the District of Columbia, any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice; or who shall knowingly procure or obtain, or cause to be procured or obtained, or aid or assist in procuring or obtaining, any ticket or tickets, or any form of transportation or evidence of the right thereto, to be used by any woman or girl in interstate or foreign commerce, or in any Territory or the District of Columbia, in going to any place for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent or purpose on the part of such person to induce, entice, or compel her to give herself up to the practice of prostitution, or to give herself up to debauchery, or any other immoral practice, whereby any such woman or girl shall be transported in interstate or foreign commerce, or in any Territory or the District of Columbia, shall be deemed guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $5,000, or by imprisonment of not more than five years, or by both such fine and imprisonment, in the discretion of the court."

    30

    [2] Sec. 3 of the Act (18 U.S.C., § 399), directed toward the persuasion, inducement, enticement or coercion of the prohibited transportation, also includes specifically those who "aid or assist" in the inducement or the transportation. Yet it is obvious that those words were not intended to reach the woman who, by yielding to persuasion, assists in her own transportation.

    31

    [3] Sec. 30, Act of March 2, 1867 (14 Stat. 471, 484) "except for an omitted not relevant provision, . . . has continued from that time to this, in almost precisely its present form." See United States v. Gradwell, 243 U.S. 476, 481.

    32

    [4] The requirement of the statute that the object of the conspiracy be an offense against the United States, necessarily statutory, United States v. Hudson, 7 Cranch 32, avoids the question much litigated at common law (see cases cited in Wright, The Law of Criminal Conspiracies [Carson ed. 1887] and in Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393) of the Criminality of combining to do an act which any one may lawfully do alone.

    33

    [5] So it has been held repeatedly that one not a bankrupt may be held guilty under § 37 of conspiring that a bankrupt shall conceal property from his trustee (Bankruptcy Act § 29[b], 11 U.S.C., § 52). Tapack v. United States, 220 Fed. 445, certiorari denied 238 U.S. 627; Jollit v. United States, 285 Fed. 209, certiorari denied 261 U.S. 624; Israel v. United States, 3 F. (2d) 743; Kaplan v. United States, 7 F. (2d) 594, certiorari denied 269 U.S. 582. And see United States v. Rabinowich, 238 U.S. 78, 86, 87. These cases proceed upon the theory (see United States v. Rabinowich, supra, 86) that only a bankrupt may commit the substantive offense though we do not intimate that others might not be held as principals under Criminal Code, § 332 (18 U.S.C., § 550). Cf. Barron v. United States, 5 F. (2d) 799.

    34

    In like manner Chadwick v. United States, 141 Fed. 225, sustained the conviction of one not an officer of a national bank for conspiring with an officer to commit a crime which only he could commit. And see United States v. Martin, 4 Cliff. 156; United States v. Stevens, 44 Fed. 132.

    35

    [6] The rule was applied in United States v. N.Y.C. & H.R.R. Co., 146 Fed. 298; United States v. Sager, 49 F. (2d) 725. In the following cases it was recognized and held inapplicable for the reason that the substantive crime could be committed by a single individual. Chadwick v. United States, 141 Fed. 225; Laughter v. United States, 259 Fed. 94; Lisansky v. United States, 31 F. (2d) 846, certiorari denied 279 U.S. 873. The conspiracy was also deemed criminal where it contemplated the cooperation of a greater number of parties than were necessary to the commission of the principal offense, as in Thomas v. United States, 156 Fed. 897; McKnight v. United States, 252 Fed. 687; cf. Vannata v. United States, 289 Fed. 424; Ex parte O'Leary, 53 F. (2d) 956. Compare Queen v. Whitchurch, 24 Q.B.D. 420.

    36

    [7] It should be noted that there are many cases not constituting "a serious and substantially continued group scheme for cooperative law breaking" which may well fall within the recommendation of the 1925 conference of senior circuit judges that the conspiracy indictment be adopted "only after a careful conclusion that the public interest so requires." Att'y Gen. Rep. 1925, pp. 5, 6.

  • 2 People v. Lauria

    1
    251 Cal.App.2d 471 (1967)
    2
    59 Cal. Rptr. 628
    3
    THE PEOPLE, Plaintiff and Appellant,
    v.
    LOUIS LAURIA et al., Defendants and Respondents.
    4
    Docket No. 11661.
    5

    Court of Appeals of California, Second District, Division Two.

    6
    June 1, 1967.
    7

     

    8

    [473] Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, Evelle J. Younger, District Attorney, Harry Wood and Robert J. Lord, Deputy District Attorneys, for Plaintiff and Appellant.

    9

    [474] Jay Plotkin, under appointment by the Court of Appeal, Patrick Coleman, Apple & Dobrin and Irving D. Apple for Defendants and Respondents.

    10

    FLEMING, J.

    11

    In an investigation of call-girl activity the police focused their attention on three prostitutes actively plying their trade on call, each of whom was using Lauria's telephone answering service, presumably for business purposes.

    12

    On January 8, 1965, Stella Weeks, a policewoman, signed up for telephone service with Lauria's answering service. Mrs. Weeks, in the course of her conversation with Lauria's office manager, hinted broadly that she was a prostitute concerned with the secrecy of her activities and their concealment from the police. She was assured that the operation of the service was discreet and "about as safe as you can get." It was arranged that Mrs. Weeks need not leave her address with the answering service, but could pick up her calls and pay her bills in person.

    13

    On February 11, Mrs. Weeks talked to Lauria on the telephone and told him her business was modelling and she had been referred to the answering service by Terry, one of the three prostitutes under investigation. She complained that because of the operation of the service she had lost two valuable customers, referred to as tricks. Lauria defended his service and said that her friends had probably lied to her about having left calls for her. But he did not respond to Mrs. Weeks' hints that she needed customers in order to make money, other than to invite her to his house for a personal visit in order to get better acquainted. In the course of his talk he said "his business was taking messages."

    14

    On February 15, Mrs. Weeks talked on the telephone to Lauria's office manager and again complained of two lost calls, which she described as a $50 and a $100 trick. On investigation the office manager could find nothing wrong, but she said she would alert the switchboard operators about slip-ups on calls.

    15

    On April 1 Lauria and the three prostitutes were arrested. Lauria complained to the police that this attention was undeserved, stating that Hollywood Call Board had 60 to 70 prostitutes on its board while his own service had only 9 or 10, that he kept separate records for known or suspected prostitutes for the convenience of himself and the police. When asked if his records were available to police who might come [475] to the office to investigate call girls, Lauria replied that they were whenever the police had a specific name. However, his service didn't "arbitrarily tell the police about prostitutes on our board. As long as they pay their bills we tolerate them." In a subsequent voluntary appearance before the grand jury Lauria testified he had always cooperated with the police. But he admitted he knew some of his customers were prostitutes, and he knew Terry was a prostitute because he had personally used her services, and he knew she was paying for 500 calls a month.

    16

    Lauria and the three prostitutes were indicted for conspiracy to commit prostitution, and nine overt acts were specified. Subsequently the trial court set aside the indictment as having been brought without reasonable or probable cause. (Pen Code, § 995.) The People have appealed, claiming that a sufficient showing of an unlawful agreement to further prostitution was made.

    17

    [1] To establish agreement, the People need show no more than a tacit, mutual understanding between coconspirators to accomplish an unlawful act. (People v. Calhoun, 50 Cal.2d 137, 144 [323 P.2d 427]; People v. Yeager, 194 Cal. 452, 484 [229 P. 40].) Here the People attempted to establish a conspiracy by showing that Lauria, well aware that his codefendants were prostitutes who received business calls from customers through his telephone answering service, continued to furnish them with such service. This approach attempts to equate knowledge of another's criminal activity with conspiracy to further such criminal activity, and poses the question of the criminal responsibility of a furnisher of goods or services who knows his product is being used to assist the operation of an illegal business. Under what circumstances does a supplier become a part of a conspiracy to further an illegal enterprise by furnishing goods or services which he knows are to be used by the buyer for criminal purposes?

    18

    The two leading cases on this point face in opposite directions. In United States v. Falcone, 311 U.S. 205 [85 L.Ed. 128, 61 S.Ct. 204], the sellers of large quantities of sugar, yeast, and cans were absolved from participation in a moonshining conspiracy among distillers who bought from them, while in Direct Sales Co. v. United States, 319 U.S. 703 [87 L.Ed. 1674, 63 S.Ct. 1265], a wholesaler of drugs was convicted of conspiracy to violate the federal narcotic laws by selling drugs in quantity to a codefendant physician who was supplying them to addicts. The distinction between these two [476] cases appears primarily based on the proposition that distributors of such dangerous products as drugs are required to exercise greater discrimination in the conduct of their business than are distributors of innocuous substances like sugar and yeast.

    19

    In the earlier case, Falcone, the sellers' knowledge of the illegal use of the goods was insufficient by itself to make the sellers participants in a conspiracy with the distillers who bought from them. Such knowledge fell short of proof of a conspiracy, and evidence on the volume of sales was too vague to support a jury finding that respondents knew of the conspiracy from the size of the sales alone.

    20

    In the later case of Direct Sales, the conviction of a drug wholesaler for conspiracy to violate federal narcotic laws was affirmed on a showing that it had actively promoted the sale of morphine sulphate in quantity and had sold codefendant physician, who practiced in a small town in South Carolina, more than 300 times his normal requirements of the drug, even though it had been repeatedly warned of the dangers of unrestricted sales of the drug. The court contrasted the restricted goods involved in Direct Sales with the articles of free commerce involved in Falcone: "All articles of commerce may be put to illegal ends," said the court. "But all do not have inherently the same susceptibility to harmful and illegal use.... This difference is important for two purposes. One is for making certain that the seller knows the buyer's intended illegal use. The other is to show that by the sale he intends to further, promote, and cooperate in it. This intent, when given effect by overt act, is the gist of conspiracy. While it is not identical with mere knowledge that another purposes unlawful action it is not unrelated to such knowledge.... The step from knowledge to intent and agreement may be taken. There is more than suspicion, more than knowledge, acquiescence, carelessness, indifference, lack of concern. There is informed and interested cooperation, stimulation, instigation. And there is also a `stake in the venture' which, even if it may not be essential, is not irrelevant to the question of conspiracy." (319 U.S. at pp. 710-713, 87 L.Ed. at pp. 1681, 1682.)

    21

    While Falcone and Direct Sales may not be entirely consistent with each other in their full implications, they do provide us with a framework for the criminal liability of a supplier of lawful goods or services put to unlawful use. [2] Both the element of knowledge of the illegal use of the [477] goods or services and the element of intent to further that use must be present in order to make the supplier a participant in a criminal conspiracy.

    22

    [3] Proof of knowledge is ordinarily a question of fact and requires no extended discussion in the present case. The knowledge of the supplier was sufficiently established when Lauria admitted he knew some of his customers were prostitutes and admitted he knew that Terry, an active subscriber to his service, was a prostitute. In the face of these admissions he could scarcely claim to have relied on the normal assumption an operator of a business or service is entitled to make, that his customers are behaving themselves in the eyes of the law. Because Lauria knew in fact that some of his customers were prostitutes, it is a legitimate inference he knew they were subscribing to his answering service for illegal business purposes and were using his service to make assignations for prostitution. On this record we think the prosecution is entitled to claim positive knowledge by Lauria of the use of his service to facilitate the business of prostitution.

    23

    [4] The more perplexing issue in the case is the sufficiency of proof of intent to further the criminal enterprise. The element of intent may be proved either by direct evidence, or by evidence of circumstances from which an intent to further a criminal enterprise by supplying lawful goods or services may be inferred. Direct evidence of participation, such as advice from the supplier of legal goods or services to the user of those goods or services on their use for illegal purposes, such evidence as appeared in a companion case we decide today, People v. Roy, ante, p. 459 [59 Cal. Rptr. 636], provides the simplest case. When the intent to further and promote the criminal enterprise comes from the lips of the supplier himself, ambiguities of inference from circumstance need not trouble us. [5] But in cases where direct proof of complicity is lacking, intent to further the conspiracy must be derived from the sale itself and its surrounding circumstances in order to establish the supplier's express or tacit agreement to join the conspiracy.

    24

    In the case at bench the prosecution argues that since Lauria knew his customers were using his service for illegal purposes but nevertheless continued to furnish it to them, he must have intended to assist them in carrying out their illegal activities. Thus through a union of knowledge and intent he became a participant in a criminal conspiracy. Essentially, the People argue that knowledge alone of the continuing use of [478] his telephone facilities for criminal purposes provided a sufficient basis from which his intent to participate in those criminal activities could be inferred.

    25

    In examining precedents in this field we find that sometimes, but not always, the criminal intent of the supplier may be inferred from his knowledge of the unlawful use made of the product he supplies. Some consideration of characteristic patterns may be helpful.

    26

    [6] 1. Intent may be inferred from knowledge, when the purveyor of legal goods for illegal use has acquired a stake in the venture. (United States v. Falcone, 109 F.2d 579, 581.) For example, in Regina v. Thomas, [1957] 2 All Eng. 181, 342, a prosecution for living off the earnings of prostitution, the evidence showed that the accused, knowing the woman to be a convicted prostitute, agreed to let her have the use of his room between the hours of 9 p.m. and 2 a.m. for a charge of £ 3 a night. The Court of Criminal Appeal refused an appeal from the conviction, holding that when the accused rented a room at a grossly inflated rent to a prostitute for the purpose of carrying on her trade, a jury could find he was living on the earnings of prostitution.

    27

    In the present case, no proof was offered of inflated charges for the telephone answering services furnished the codefendants.

    28

    [7] 2. Intent may be inferred from knowledge, when no legitimate use for the goods or services exists. The leading California case is People v. McLaughlin, 111 Cal. App.2d 781 [245 P.2d 1076], in which the court upheld a conviction of the suppliers of horse-racing information by wire for conspiracy to promote bookmaking, when it had been established that wire-service information had no other use than to supply information needed by bookmakers to conduct illegal gambling operations.

    29

    In Rex v. Delaval (1763) 3 Burr. 1434, 97 Eng.Rep. 913, the charge was unlawful conspiracy to remove a girl from the control of Bates, a musician to whom she was bound as an apprentice, and place her in the hands of Sir Francis Delaval for the purpose of prostitution. Lord Mansfield not only upheld the charges against Bates and Sir Francis, but also against Fraine, the attorney who drew up the indentures of apprenticeship transferring custody of the girl from Bates to Sir Francis. Fraine, said Lord Mansfield, must have known that Sir Francis had no facilities for teaching music to apprentices [479] so that it was impossible for him to have been ignorant of the real intent of the transaction.

    30

    In Shaw v. Director of Public Prosecutions, [1962] A.C. 220, the defendant was convicted of conspiracy to corrupt public morals and of living on the earnings of prostitution, when he published a directory consisting almost entirely of advertisements of the names, addresses, and specialized talents of prostitutes. Publication of such a directory, said the court, could have no legitimate use and serve no other purpose than to advertise the professional services of the prostitutes whose advertisements appeared in the directory. The publisher could be deemed a participant in the profits from the business activities of his principal advertisers.

    31

    Other services of a comparable nature come to mind: the manufacturer of crooked dice and marked cards who sells his product to gambling casinos; the tipster who furnishes information on the movement of law enforcement officers to known lawbreakers. (Cf. Jackson v. State of Texas (1957) 164 Tex. Crim. Rep. 276 [298 S.W.2d 837], where the furnisher of signaling equipment used to warn gamblers of the police was convicted of aiding the equipping of a gambling place.) In such cases the supplier must necessarily have an intent to further the illegal enterprise since there is no known honest use for his goods.

    32

    However, there is nothing in the furnishing of telephone answering service which would necessarily imply assistance in the performance of illegal activities. Nor is any inference to be derived from the use of an answering service by women, either in any particular volume of calls, or outside normal working hours. Night-club entertainers, registered nurses, faith healers, public stenographers, photographic models, and free lance substitute employees, provide examples of women in legitimate occupations whose employment might cause them to receive a volume of telephone calls at irregular hours.

    33

    [8] 3. Intent may be inferred from knowledge, when the volume of business with the buyer is grossly disproportionate to any legitimate demand, or when sales for illegal use amount to a high proportion of the seller's total business. In such cases an intent to participate in the illegal enterprise may be inferred from the quantity of the business done. For example, in Direct Sales, supra, the sale of narcotics to a rural physician in quantities 300 times greater than he would have normal use for provided potent evidence of an intent to further the illegal activity. In the same case the court also found [480] significant the fact that the wholesaler had attracted as customers a disproportionately large group of physicians who had been convicted of violating the Harrison Act. In Shaw v. Director of Public Prosecutions, [1962] A.C. 220, almost the entire business of the directory came from prostitutes.

    34

    No evidence of any unusual volume of business with prostitutes was presented by the prosecution against Lauria.

    35

    Inflated charges, the sale of goods with no legitimate use, sales in inflated amounts, each may provide a fact of sufficient moment from which the intent of the seller to participate in the criminal enterprise may be inferred. In such instances participation by the supplier of legal goods to the illegal enterprise may be inferred because in one way or another the supplier has acquired a special interest in the operation of the illegal enterprise. His intent to participate in the crime of which he has knowledge may be inferred from the existence of his special interest.

    36

    Yet there are cases in which it cannot reasonably be said that the supplier has a stake in the venture or has acquired a special interest in the enterprise, but in which he has been held liable as a participant on the basis of knowledge alone. Some suggestion of this appears in Direct Sales, supra, where both the knowledge of the illegal use of the drugs and the intent of the supplier to aid that use were inferred. In Regina v. Bainbridge (1959) 3 Week.L. 656 [(C.C.A. 6) [3 All Eng. 200, 123 J.P. 499, 43 Crim. App. 194], a supplier of oxygen-cutting equipment to one known to intend to use it to break into a bank was convicted as an accessory to the crime. In Sykes v. Director of Public Prosecutions [1962] A.C. 528, one having knowledge of the theft of 100 pistols, 4 submachine guns, and 1,960 rounds of ammunition was convicted of misprision of felony for failure to disclose the theft to the public authorities. [9] It seems apparent from these cases that a supplier who furnishes equipment which he knows will be used to commit a serious crime may be deemed from that knowledge alone to have intended to produce the result. Such proof may justify an inference that the furnisher intended to aid the execution of the crime and that he thereby became a participant. For instance, we think the operator of a telephone answering service with positive knowledge that his service was being used to facilitate the extortion of ransom, the distribution of heroin, or the passing of counterfeit money who continued to furnish the service with knowledge of its use, might be chargeable on knowledge alone with participation in a scheme to extort money, to distribute narcotics, or to [481] pass counterfeit money. The same result would follow the seller of gasoline who knew the buyer was using his product to make Molotov cocktails for terroristic use.

    37

    Logically, the same reasoning could be extended to crimes of every description. [10] Yet we do not believe an inference of intent drawn from knowledge of criminal use properly applies to the less serious crimes classified as misdemeanors. The duty to take positive action to dissociate oneself from activities helpful to violations of the criminal law is far stronger and more compelling for felonies than it is for misdemeanors or petty offenses. In this respect, as in others, the distinction between felonies and misdemeanors, between more serious and less serious crime, retains continuing vitality. In historically the most serious felony, treason, an individual with knowledge of the treason can be prosecuted for concealing and failing to disclose it. (Pen. Code, § 38; 18 U.S.C. § 2382.) [11] In other felonies, both at common law and under the criminal laws of the United States, an individual knowing of the commission of a felony is criminally liable for concealing it and failing to make it known to proper authority. (4 Blackstone 121; Sykes v. Director of Public Prosecutions [1962] A.C. 528; 18 U.S.C. § 4.) [12] But this crime, known as misprision of felony, has always been limited to knowledge and concealment of felony and has never extended to misdemeanor. A similar limitation is found in the criminal liability of an accessory, which is restricted to aid in the escape of a principal who has committed or been charged with a felony. (Pen. Code, § 32.) We believe the distinction between the obligations arising from knowledge of a felony and those arising from knowledge of a misdemeanor continues to reflect basic human feelings about the duties owed by individuals to society. Heinous crime must be stamped out, and its suppression is the responsibility of all. (Backun v. United States, 112 F.2d 635, 637.) Venial crime and crime not evil in itself present less of a danger to society, and perhaps the benefits of their suppression through the modern equivalent of the posse, the hue and cry, the informant, and the citizen's arrest, are outweighed by the disruption to everyday life brought about by amateur law enforcement and private officiousness in relatively inconsequential delicts which do not threaten our basic security. The subject has been summarized in an English text on the criminal law: "Failure to reveal a felony to the authorities is now authoritatively determined to be misprision of felony, which is a commonlaw misdemeanour; [482] misprision of treason is punishable with imprisonment for life.... No offence is committed in failing to disclose a misdemeanour....

    38

    "`To require everyone, without distinction, as to the nature and degree of the offence, to become an accuser, would be productive of inconvenience in exposing numbers to penal prosecutions, multiplying criminal charges, and engendering private dissension. It may sometimes be more convenient that offences should be passed over, than that all should indiscriminately be made the subject of prosecution; and a law would be considered to be harsh and impolitic, if not unjust, which compelled every party injured by a criminal act, and, still more so, to compel everyone who happened to know that another had been so injured, to make a public disclosure of the circumstances. Here, therefore, there is reason for limiting the law against mere misprisions to the concealment of such crimes as are of an aggravated complexion.'" (Criminal Law, Glanville Williams (2d ed.) p. 423.)

    39

    [13] With respect to misdemeanors, we conclude that positive knowledge of the supplier that his products or services are being used for criminal purposes does not, without more, establish an intent of the supplier to participate in the misdemeanors. With respect to felonies, we do not decide the converse, viz., that in all cases of felony knowledge of criminal use alone may justify an inference of the supplier's intent to participate in the crime. The implications of Falcone make the matter uncertain with respect to those felonies which are merely prohibited wrongs. See also Holman v. Johnson (1775) 98 Eng.Rep. 1120 (sale and delivery of tea at Dunkirk known to be destined for smuggling into England not an illegal contract). But decision on this point is not compelled, and we leave the matter open.

    40

    [14] From this analysis of precedent we deduce the following rule: the intent of a supplier who knows of the criminal use to which his supplies are put to participate in the criminal activity connected with the use of his supplies may be established by (1) direct evidence that he intends to participate, or (2) through an inference that he intends to participate based on, (a) his special interest in the activity, or (b) the aggravated nature of the crime itself.

    41

    [15] When we review Lauria's activities in the light of this analysis, we find no proof that Lauria took any direct action to further, encourage, or direct the call-girl activities of his codefendants and we find an absence of circumstance from [483] which his special interest in their activities could be inferred. Neither excessive charges for standardized services, nor the furnishing of services without a legitimate use, nor an unusual quantity of business with call girls, are present. The offense which he is charged with furthering is a misdemeanor, a category of crime which has never been made a required subject of positive disclosure to public authority. Under these circumstances, although proof of Lauria's knowledge of the criminal activities of his patrons was sufficient to charge him with that fact, there was insufficient evidence that he intended to further their criminal activities, and hence insufficient proof of his participation in a criminal conspiracy with his codefendants to further prostitution. Since the conspiracy centered around the activities of Lauria's telephone answering service, the charges against his codefendants likewise fail for want of proof.

    42

    In absolving Lauria of complicity in a criminal conspiracy we do not wish to imply that the public authorities are without remedies to combat modern manifestations of the world's oldest profession. Licensing of telephone answering services under the police power, together with the revocation of licenses for the toleration of prostitution, is a possible civil remedy. The furnishing of telephone answering service in aid of prostitution could be made a crime. (Cf. Pen. Code, § 316, which makes it a misdemeanor to let an apartment with knowledge of its use for prostitution.) Other solutions will doubtless occur to vigilant public authorities if the problem of call-girl activity needs further suppression.

    43

    The order is affirmed.

    44

    Herndon, J., concurred.

    45

    Roth, P.J., concurred in the judgment.

  • 3 Pinkerton v. United States

    1
    328 U.S. 640 (1946)
    2
    PINKERTON ET AL.
    v.
    UNITED STATES.
    3
    No. 719.
    4

    Supreme Court of United States.

    5
    Argued May 1, 1946.
    6
    Decided June 10, 1946.
    7

     

    8

    CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

    9

     

    10

    [641] John S. Tucker, Jr. argued the cause for petitioners. With him on the brief was Thomas E. Skinner.

    11

    W. Marvin Smith argued the cause for the United States. With him on the brief were Solicitor General McGrath, Robert S. Erdahl and Leon Ulman.

    12

    MR. JUSTICE DOUGLAS delivered the opinion of the Court.

    13

    Walter and Daniel Pinkerton are brothers who live a short distance from each other on Daniel's farm. They were indicted for violations of the Internal Revenue Code. The indictment contained ten substantive counts and one conspiracy count. The jury found Walter guilty on nine of the substantive counts and on the conspiracy count. It found Daniel guilty on six of the substantive counts and on the conspiracy count. Walter was fined $500 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was given a two year sentence to run concurrently with the other sentence. Daniel was fined $1,000 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was fined $500 and given a two year sentence to run concurrently with the other sentence. The judgments of conviction were affirmed by the Circuit Court of Appeals.[1] 151 F.2d [642] 499. The case is here on a petition for a writ of certiorari, which we granted because one of the questions presented involved a conflict between the decision below and United States v. Sall, 116 F.2d 745, decided by the Circuit Court of Appeals for the Third Circuit.

    14

    A single conspiracy was charged and proved. Some of the overt acts charged in the conspiracy count were the same acts charged in the substantive counts. Each of the substantive offenses found was committed pursuant to the conspiracy. Petitioners therefore contend that the substantive counts became merged in the conspiracy count, and that only a single sentence not exceeding the maximum two year penalty provided by the conspiracy statute (Criminal Code § 37, 18 U.S.C. § 88) could be imposed. Or to state the matter differently, they contend that each of the substantive counts became a separate conspiracy count but, since only a single conspiracy was charged and proved, only a single sentence for conspiracy could be imposed. They rely on Braverman v. United States, 317 U.S. 49.

    15

    In the Braverman case the indictment charged no substantive offense. Each of the several counts charged a conspiracy to violate a different statute. But only one [643] conspiracy was proved. We held that a single conspiracy, charged under the general conspiracy statute, however diverse its objects may be, violates but a single statute and no penalty greater than the maximum provided for one conspiracy may be imposed. That case is not apposite here. For the offenses charged and proved were not only a conspiracy but substantive offenses as well.

    16

    Nor can we accept the proposition that the substantive offenses were merged in the conspiracy. There are, of course, instances where a conspiracy charge may not be added to the substantive charge. One is where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime. See United States v. Katz, 271 U.S. 354, 355-356; Gebardi v. United States, 287 U.S. 112, 121-122. Another is where the definition of the substantive offense excludes from punishment for conspiracy one who voluntarily participates in another's crime. Gebardi v. United States, supra. But those exceptions are of a limited character. The common law rule that the substantive offense, if a felony, was merged in the conspiracy,[2] has little vitality in this country.[3] It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each a different penalty is well established. Clune v. United States, 159 U.S. 590, 594-595. A conviction for the conspiracy may be had though the substantive offense was completed. See Heike v. United States, 227 U.S. 131, 144. And the plea of double jeopardy is no defense to a conviction for both offenses. Carter v. [644] McClaughry, 183 U.S. 365, 395. It is only an identity of offenses which is fatal. See Gavieres v. United States, 220 U.S. 338, 342. Cf. Freeman v. United States, 146 F.2d 978. A conspiracy is a partnership in crime. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253. It has ingredients, as well as implications, distinct from the completion of the unlawful project. As stated in United States v. Rabinowich, 238 U.S. 78, 88:

    17
    "For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws, is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered."
    18

     

    19

    And see Sneed v. United States, 298 F. 911, 912-913; Banghart v. United States, 148 F.2d 521.

    20

    Moreover, it is not material that overt acts charged in the conspiracy counts were also charged and proved as substantive offenses. As stated in Sneed v. United States, supra, p. 913, "If the overt act be the offense which was the object of the conspiracy, and is also punished, there is not a double punishment of it." The agreement to do an unlawful act is even then distinct from the doing of the act.[4]

    21

    [645] It is contended that there was insufficient evidence to implicate Daniel in the conspiracy. But we think there was enough evidence for submission of the issue to the jury.

    22

    There is, however, no evidence to show that Daniel participated directly in the commission of the substantive offenses on which his conviction has been sustained,[5] although there was evidence to show that these substantive offenses were in fact committed by Walter in furtherance of the unlawful agreement or conspiracy existing between the brothers. The question was submitted to the jury on the theory that each petitioner could be found guilty of the substantive offenses, if it was found at the time those offenses were committed petitioners were parties to an unlawful conspiracy and the substantive offenses charged were in fact committed in furtherance of it.[6]

    23

    [646] Daniel relies on United States v. Sall, supra. That case held that participation in the conspiracy was not itself enough to sustain a conviction for the substantive offense even though it was committed in furtherance of the conspiracy. The court held that, in addition to evidence that the offense was in fact committed in furtherance of the conspiracy, evidence of direct participation in the commission of the substantive offense or other evidence from which participation might fairly be inferred was necessary.

    24

    We take a different view. We have here a continuous conspiracy. There is here no evidence of the affirmative action on the part of Daniel which is necessary to establish his withdrawal from it. Hyde v. United States, 225 U.S. 347, 369. As stated in that case, "Having joined in an unlawful scheme, having constituted agents for its performance, scheme and agency to be continuous until full fruition be secured, until he does some act to disavow or defeat the purpose he is in no situation to claim the delay of the law. As the offense has not been terminated or accomplished he is still offending. And we think, consciously offending, offending as certainly, as we have said, as at the first moment of his confederation, and consciously through every moment of its existence." Id., p. 369. And so long as the partnership in crime continues, the partners act for each other in carrying it forward. It is settled that "an overt act of one partner may be the act of all without [647] any new agreement specifically directed to that act." United States v. Kissel, 218 U.S. 601, 608. Motive or intent may be proved by the acts or declarations of some of the conspirators in furtherance of the common objective. Wiborg v. United States, 163 U.S. 632, 657-658. A scheme to use the mails to defraud, which is joined in by more than one person, is a conspiracy. Cochran v. United States, 41 F.2d 193, 199-200. Yet all members are responsible, though only one did the mailing. Cochran v. United States, supra; Mackett v. United States, 90 F.2d 462, 464; Baker v. United States, 115 F.2d 533, 540; Blue v. United States, 138 F.2d 351, 359. The governing principle is the same when the substantive offense is committed by one of the conspirators in furtherance of the unlawful project. Johnson v. United States, 62 F.2d 32, 34. The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act done was in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all. An overt act is an essential ingredient of the crime of conspiracy under § 37 of the Criminal Code, 18 U.S.C. § 88. If that can be supplied by the act of one conspirator, we fail to see why the same or other acts in furtherance of the conspiracy are likewise not attributable to the others for the purpose of holding them responsible for the substantive offense.

    25

    A different case would arise if the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall within the [648] scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. But as we read this record, that is not this case.

    26

    Affirmed.

    27

    MR. JUSTICE JACKSON took no part in the consideration or decision of this case.

    28

    MR. JUSTICE RUTLEDGE, dissenting in part.

    29

    The judgment concerning Daniel Pinkerton should be reversed. In my opinion it is without precedent here and is a dangerous precedent to establish.

    30

    Daniel and Walter, who were brothers living near each other, were charged in several counts with substantive offenses, and then a conspiracy count was added naming those offenses as overt acts. The proof showed that Walter alone committed the substantive crimes. There was none to establish that Daniel participated in them, aided and abetted Walter in committing them, or knew that he had done so. Daniel in fact was in the penitentiary, under sentence for other crimes, when some of Walter's crimes were done.

    31

    There was evidence, however, to show that over several years Daniel and Walter had confederated to commit similar crimes concerned with unlawful possession, transportation, and dealing in whiskey, in fraud of the federal revenues. On this evidence both were convicted of conspiracy. Walter also was convicted on the substantive counts on the proof of his committing the crimes charged. Then, on that evidence without more than the proof of Daniel's criminal agreement with Walter and the latter's overt acts, which were also the substantive offenses charged, the court told the jury they could find Daniel guilty of those substantive offenses. They did so.

    32

    [649] I think this ruling violates both the letter and the spirit of what Congress did when it separately defined the three classes of crime, namely, (1) completed substantive offenses;[1] (2) aiding, abetting or counseling another to commit them;[2] and (3) conspiracy to commit them.[3] Not only does this ignore the distinctions Congress has prescribed shall be observed. It either convicts one man for another's crime or punishes the man convicted twice for the same offense.

    33

    The three types of offense are not identical. Bollenbach v. United States, 326 U.S. 607, 611; United States v. Sall, 116 F.2d 745. Nor are their differences merely verbal. Ibid. The gist of conspiracy is the agreement; that of aiding, abetting or counseling is in consciously advising or assisting another to commit particular offenses, and thus becoming a party to them; that of substantive crime, going a step beyond mere aiding, abetting, counseling to completion of the offense.

    34

    These general differences are well understood. But when conspiracy has ripened into completed crime, or has advanced to the stage of aiding and abetting, it becomes easy to disregard their differences and loosely to treat one as identical with the other, that is, for every purpose except the most vital one of imposing sentence. And [650] thus the substance, if not the technical effect, of double jeopardy or multiple punishment may be accomplished. Thus also may one be convicted of an offense not charged or proved against him, on evidence showing he committed another.

    35

    The old doctrine of merger of conspiracy in the substantive crime has not obtained here. But the dangers for abuse, which in part it sought to avoid, in applying the law of conspiracy have not altogether disappeared. Cf. Kotteakos v. United States, post, p. 750. There is some evidence that they may be increasing. The looseness with which the charge may be proved, the almost unlimited scope of vicarious responsibility for others' acts which follows once agreement is shown, the psychological advantages of such trials for securing convictions by attributing to one proof against another, these and other inducements require that the broad limits of discretion allowed to prosecuting officers in relation to such charges and trials be not expanded into new, wider and more dubious areas of choice. If the matter is not generally of constitutional proportions, it is one for the exercise of this Court's supervisory power over the modes of conducting federal criminal prosecutions within the rule of McNabb v. United States, 318 U.S. 332.

    36

    I think that power should be exercised in this case with respect to Daniel's conviction. If it does not violate the letter of constitutional right, it fractures the spirit. United States v. Sall, supra. I think the ruling in that case was right, and for the reasons stated.[4] It should be [651] followed here. Daniel has been held guilty of the substantive crimes committed only by Walter on proof that he did no more than conspire with him to commit offenses of the same general character. There was no evidence that he counseled, advised or had knowledge of those particular acts or offenses. There was, therefore, none that he aided, abetted or took part in them. There was only evidence sufficient to show that he had agreed with Walter at some past time to engage in such transactions generally. As to Daniel this was only evidence of conspiracy, not of substantive crime.

    37

    The Court's theory seems to be that Daniel and Walter became general partners in crime by virtue of their agreement and because of that agreement without more on his part Daniel became criminally responsible as a principal for everything Walter did thereafter in the nature of a criminal offense of the general sort the agreement contemplated, so long as there was not clear evidence that Daniel had withdrawn from or revoked the agreement. Whether or not his commitment to the penitentiary had that effect, the result is a vicarious criminal responsibility as broad as, or broader than, the vicarious civil liability of a partner for acts done by a co-partner in the course of the firm's business.

    38

    Such analogies from private commercial law and the law of torts are dangerous, in my judgment, for transfer to the criminal field. See Sen. Rep. No. 163, 72d Cong., 1st Sess., 20. Guilt there with us remains personal, not vicarious, for the more serious offenses. It should be kept so. The effect of Daniel's conviction in this case, to [652] repeat, is either to attribute to him Walter's guilt or to punish him twice for the same offense, namely, agreeing with Walter to engage in crime. Without the agreement Daniel was guilty of no crime on this record. With it and no more, so far as his own conduct is concerned, he was guilty of two.

    39

    In another aspect of the case, this effect is thrown into even clearer light. The indictment here was filed after a prior one for conspiracy alone had been dismissed. This in turn came after petitioners had been tried, convicted and had been successful in securing reversal on appeal for errors in the charge. Pinkerton v. United States, 145 F.2d 252. Following this reversal they were reindicted and tried in the present case. The Government now says, as to the plea of double jeopardy on this account (which the trial court overruled on demurrer), that the two indictments were for different conspiracies since the first one charged a different period of time as covered by the conspiracy; charged 16 as compared with 19 overt acts in the second; and an additional object was added in the latter, that is, intent to violate another section of the revenue act. In other words, there were two different conspiracies by virtue of these minute differences in the detail of the allegations. Hence, there was no double jeopardy by the second indictment.

    40

    But later, in support of the conviction here, relative to the bearing of the various statutes of limitations upon proof of the overt acts, charged also as substantive offenses, the Government points out that the earlier indictment was framed on the assumption that a three-year statute of limitations applied to the conspiracy as first charged; and the convictions were reversed for failure of the trial court to instruct the jury on that basis. Then the District Attorney discovered the decision in Braverman v. United States, 317 U.S. 49, 54-55, and decided to revamp the [653] indictment to include details making the six-year period applicable. He did so, and added the substantive counts because, so it is said, in the view that a six-year period applied he felt there were enough substantive offenses within that time which he could successfully prove to justify including them.

    41

    It would seem, from this history, that to sustain this conviction as against the plea of former jeopardy by virtue of the earlier indictment and what followed, the Government stands, and must stand, upon the idea that two separate and distinct conspiracies were charged, one by the first and one by the later indictment. See United States v. Oppenheimer, 242 U.S. 85, 87-88. But to sustain Daniel's conviction for the substantive offenses, via the conspiracy route, there was only a single continuing conspiracy extending over the longer period, in the course of which Walter committed crimes, which were also overt acts, some of them running back of the period charged in the former indictment, others being the same but later acts which it had charged as overt acts against both.

    42

    For these now Daniel is held responsible, not merely as a conspirator, as the prior indictment charged, but as both a conspirator and a substantive offender.

    43

    What this lacks by way of being put twice in jeopardy for the same offense, I am unable to understand. For not only has Daniel been convicted for conspiracy for the same overt acts, and illegal ends, as the first indictment charged. He has had those acts converted into substantive offenses. I do not think the prosecutor's technical, and it would seem insubstantial, variations in the details of the indictment should be permitted to achieve so much.[5]

    44

    [654] This, of course, should not relieve Walter of the conviction for the substantive offenses. But his sentence for conspiracy should be annulled. So also should Daniel's sentence on all counts.

    45

    MR. JUSTICE FRANKFURTER, reserving judgment on the question of double jeopardy, agrees in substance with the views expressed in this dissent.

    46

    [1] The court held that two of the counts under which Walter was convicted and one of the counts under which Daniel was convicted were barred by the statute of limitations and that as to them the demurrer should have been sustained. But each of the remaining substantive counts on which the jury had returned a verdict of guilty carried a maximum penalty of three years' imprisonment and a fine of $5,000. Int. Rev. Code, § 3321, 26 U.S.C. § 3321. Hence the general sentence of fine and imprisonment imposed on each under the substantive counts was valid. It is settled law, as stated in Claassen v. United States, 142 U.S. 140, 146-147, "that in any criminal case a general verdict and judgment on an indictment or information containing several counts cannot be reversed on error, if any one of the counts is good and warrants the judgment, because, in the absence of anything in the record to show the contrary, the presumption of law is that the court awarded sentence on the good count only."

    47

    The same rule obtains in the case of concurrent sentences. Hirabayashi v. United States, 320 U.S. 81, 85 and cases cited.

    48

    [2] See May's Law of Crimes (4th ed. 1938), § 126; 17 Corn. L.Q. (1931) 136; People v. Tavormina, 257 N.Y. 84, 89-90, 177 N.E. 317.

    49

    [3] The cases are collected in 37 A.L.R. 778, 75 A.L.R. 1411.

    50

    [4] The addition of a conspiracy count may at times be abusive and unjust. The Conference of Senior Circuit Judges reported in 1925:

    51

    "We note the prevalent use of conspiracy indictments for converting a joint misdemeanor into a felony; and we express our conviction that both for this purpose and for the purpose — or at least with the effect — of bringing in much improper evidence, the conspiracy statute is being much abused.

    52

    "Although in a particular case there may be no preconcert of plan, excepting that necessarily inherent in mere joint action, it is difficult to exclude that situation from the established definitions of conspiracy; yet the theory which permits us to call the aborted plan a greater offense than the completed crime supposes a serious and substantially continued group scheme for cooperative law breaking. We observe so many conspiracy prosecutions which do not have this substantial base that we fear the creation of a general impression, very harmful to law enforcement, that this method of prosecution is used arbitrarily and harshly. Further the rules of evidence in conspiracy cases make them most difficult to try without prejudice to an innocent defendant." Annual Report of the Attorney General for 1925, pp. 5-6.

    53

    But we do not find that practice reflected in this present case.

    54

    [5] This question does not arise as to Walter. He was the direct actor in some of the substantive offenses on which his conviction rests. So the general sentence and fine are supportable under any one of those. See note 1, supra.

    55

    [6] The trial court charged: ". . . after you gentlemen have considered all the evidence in this case, if you are satisfied from the evidence beyond a reasonable doubt that at the time these particular substantive offenses were committed, that is, the offenses charged in the first ten counts of this indictment if you are satisfied from the evidence beyond a reasonable doubt that the two defendants were in an unlawful conspiracy, as I have heretofore defined unlawful conspiracy to you, then you would have a right, if you found that to be true to your satisfaction beyond a reasonable doubt, to convict each of these defendants on all these substantive counts, provided the acts referred to in the substantive counts were acts in furtherance of the unlawful conspiracy or object of the unlawful conspiracy, which you have found from the evidence existed." Daniel was not indicted as an aider or abettor (see Criminal Code, § 332, 18 U.S.C. 550), nor was his case submitted to the jury on that theory.

    56

    [1] These of course comprehend the vast variety of offenses prescribed by federal law, conspiracies for accomplishing which may be charged under the catchall conspiracy statute, note 3.

    57

    [2] "Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal." 18 U.S.C. § 550.

    58

    [3] "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both." 18 U.S.C. § 88.

    59

    [4] In the substantially identical situation presented in the Sall case as to the indictment and the proof, the Government argued that the conviction on the substantive counts should stand because the proof that the accused had entered the conspiracy amounted to proof that he had "aided and abetted" the commission of the substantive crimes within the meaning of 18 U.S.C. § 550. The court rejected the idea, apparently now accepted here, that "aiding and abetting" and "conspiring" are, and are intended by Congress to be, the same thing, differing only in the form of the descriptive words. But if that is the only difference, then conviction for both "offenses" on account of the same act is clearly double punishment.

    60

    [5] The situation is essentially the same as when crimes are defined with such minute distinction as to make them different only in the most technical sense. See District of Columbia v. Buckley, 128 F.2d 17, concurring opinion at 21; cf. Ex parte Nielsen, 131 U.S. 176; In re Snow, 120 U.S. 274.

  • 4 Krulewitch v. United States

    1
    336 U.S. 440 (1949)
    2
    KRULEWITCH
    v.
    UNITED STATES.
    3
    No. 143.
    4

    Supreme Court of United States.

    5
    Argued January 10, 1949.
    6
    Decided March 28, 1949.
    7

     

    8

    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

    9

     

    10

    Jacob W. Friedman argued the cause and filed a brief for petitioner.

    11

    Robert W. Ginnane argued the cause for the United States. With him on the brief were Solicitor General [441] Perlman, Assistant Attorney General Campbell, John R. Benney, Robert S. Erdahl and Joseph M. Howard.

    12

    MR. JUSTICE BLACK delivered the opinion of the Court.

    13

    A federal district court indictment charged in three counts that petitioner and a woman defendant had (1) induced and persuaded another woman to go on October 20, 1941, from New York City to Miami, Florida, for the purpose of prostitution, in violation of 18 U.S.C. § 399 (now § 2422); (2) transported or caused her to be transported from New York to Miami for that purpose, in violation of 18 U.S.C. § 398 (now § 2421); and (3) conspired to commit those offenses in violation of 18 U.S.C. § 88 (now § 371). Tried alone, the petitioner was convicted on all three counts of the indictment. The Court of Appeals affirmed. 167 F.2d 943. And see disposition of prior appeal, 145 F.2d 76. We granted certiorari limiting our review to consideration of alleged error in admission of certain hearsay testimony against petitioner over his timely and repeated objections.

    14

    The challenged testimony was elicited by the Government from its complaining witness, the person whom petitioner and the woman defendant allegedly induced to go from New York to Florida for the purpose of prostitution. The testimony narrated the following purported conversation between the complaining witness and petitioner's alleged co-conspirator, the woman defendant.

    15
    "She asked me, she says, `You didn't talk yet?' And I says, `No.' And she says, `Well, don't,' she says, `until we get you a lawyer.' And then she says, `Be very careful what you say.' And I can't put it in exact words. But she said, `It would be better for us two girls to take the blame than Kay (the defendant) because he couldn't stand it, he couldn't stand to take it.'"
    16

     

    17

    [442] The time of the alleged conversation was more than a month and a half after October 20, 1941, the date the complaining witness had gone to Miami. Whatever original conspiracy may have existed between petitioner and his alleged co-conspirator to cause the complaining witness to go to Florida in October, 1941, no longer existed when the reported conversation took place in December, 1941. For on this latter date the trip to Florida had not only been made — the complaining witness had left Florida, had returned to New York, and had resumed her residence there. Furthermore, at the time the conversation took place, the complaining witness, the alleged co-conspirator, and the petitioner had been arrested. They apparently were charged in a United States District Court of Florida with the offense of which petitioner was here convicted.[1]

    18

    It is beyond doubt that the central aim of the alleged conspiracy — transportation of the complaining witness to Florida for prostitution — had either never existed or had long since ended in success or failure when and if the alleged co-conspirator made the statement attributed to her. Cf. Lew Moy v. United States, 237 F. 50. The statement plainly implied that petitioner was guilty of the crime for which he was on trial. It was made in petitioner's absence and the Government made no effort whatever to show that it was made with his authority. The testimony thus stands as an unsworn, out-of-court declaration of petitioner's guilt. This hearsay declaration, attributed to a co-conspirator, was not made pursuant to and in furtherance of objectives of the conspiracy charged in the indictment, because if made, it was after those objectives either had failed or had been achieved. Under these circumstances, the hearsay declaration attributed to the alleged co-conspirator was not admissible [443] on the theory that it was made in furtherance of the alleged criminal transportation undertaking. Fiswick v. United States, 329 U.S. 211, 216-217; Brown v. United States, 150 U.S. 93, 98-99; Graham v. United States, 15 F.2d 740, 743.

    19

    Although the Government recognizes that the chief objective of the conspiracy — transportation for prostitution purposes — had ended in success or failure before the reported conversation took place, it nevertheless argues for admissibility of the hearsay declaration as one in furtherance of a continuing subsidiary objective of the conspiracy. Its argument runs this way. Conspirators about to commit crimes always expressly or implicitly agree to collaborate with each other to conceal facts in order to prevent detection, conviction and punishment. Thus the argument is that even after the central criminal objectives of a conspiracy have succeeded or failed, an implicit subsidiary phase of the conspiracy always survives, the phase which has concealment as its sole objective. The Court of Appeals adopted this view. It viewed the alleged hearsay declaration as one in furtherance of this continuing subsidiary phase of the conspiracy, as part of "the implied agreement to conceal." 167 F.2d 943, 948. It consequently held the declaration properly admitted.

    20

    We cannot accept the Government's contention. There are many logical and practical reasons that could be advanced against a special evidentiary rule that permits out-of-court statements of one conspirator to be used against another. But however cogent these reasons, it is firmly established that where made in furtherance of the objectives of a going conspiracy, such statements are admissible as exceptions to the hearsay rule. This prerequisite to admissibility, that hearsay statements by some conspirators to be admissible against others must be made in furtherance of the conspiracy charged, has been [444] scrupulously observed by federal courts. The Government now asks us to expand this narrow exception to the hearsay rule and hold admissible a declaration, not made in furtherance of the alleged criminal transportation conspiracy charged, but made in furtherance of an alleged implied but uncharged conspiracy aimed at preventing detection and punishment. No federal court case cited by the Government suggests so hospitable a reception to the use of hearsay evidence to convict in conspiracy cases. The Government contention does find support in some but not all of the state court opinions cited in the Government brief.[2] But in none of them does there appear to be recognition of any such broad exception to the hearsay rule as that here urged. The rule contended for by the Government could have far-reaching results. For under this rule plausible arguments could generally be made in conspiracy cases that most out-of-court statements offered in evidence tended to shield co-conspirators. We are not persuaded to adopt the Government's implicit conspiracy theory which in all criminal conspiracy cases would create automatically a further breach of the general rule against the admission of hearsay evidence.

    21

    It is contended that the statement attributed to the alleged co-conspirator was merely cumulative evidence, that without the statement the case against petitioner was so strong that we should hold the error harmless under 28 U.S.C. (1946 ed.) § 391. In Kotteakos v. United States, 328 U.S. 750, we said that error should not be held harmless [445] under the harmless error statute if upon consideration of the record the court is left in grave doubt as to whether the error had substantial influence in bringing about a verdict. We have such doubt here. The Florida District Court grand jury failed to indict. After indictment in New York petitioner was tried four times with the following results: mistrial; conviction; mistrial; conviction with recommendation for leniency. The revolting type of charges made against this petitioner by the complaining witness makes it difficult to believe that a jury convinced of a strong case against him would have recommended leniency. There was corroborative evidence of the complaining witness on certain phases of the case. But as to all vital phases, those involving the sordid criminal features, the jury was compelled to choose between believing the petitioner or the complaining witness. The record persuades us that the jury's task was difficult at best. We cannot say that the erroneous admission of the hearsay declaration may not have been the weight that tipped the scales against petitioner.

    22

    Reversed.

    23

    MR. JUSTICE JACKSON, concurring in the judgment and opinion of the Court.

    24

    This case illustrates a present drift in the federal law of conspiracy which warrants some further comment because it is characteristic of the long evolution of that elastic, sprawling and pervasive offense. Its history exemplifies the "tendency of a principle to expand itself to the limit of its logic."[1] The unavailing protest of courts against the growing habit to indict for conspiracy in lieu of prosecuting for the substantive offense itself, or in [446] addition thereto,[2] suggests that loose practice as to this offense constitutes a serious threat to fairness in our administration of justice.

    25

    The modern crime of conspiracy is so vague that it almost defies definition.[3] Despite certain elementary and [447] essential elements,[4] it also, chameleon-like, takes on a special coloration from each of the many independent offenses on which it may be overlaid.[5] It is always "predominantly [448] mental in composition" because it consists primarily of a meeting of minds and an intent.[6]

    26

    The crime comes down to us wrapped in vague but unpleasant connotations. It sounds historical undertones of treachery, secret plotting and violence on a scale that menaces social stability and the security of the state itself. "Privy conspiracy" ranks with sedition and rebellion in the Litany's prayer for deliverance. Conspiratorial movements do indeed lie back of the political assassination, the coup d'etat, the putsch, the revolution, and seizures of power in modern times, as they have in all history.[7]

    27

    But the conspiracy concept also is superimposed upon many concerted crimes having no political motivation. It is not intended to question that the basic conspiracy principle has some place in modern criminal law, because to unite, back of a criminal purpose, the strength, opportunities and resources of many is obviously more dangerous and more difficult to police than the efforts of a [449] lone wrongdoer.[8] It also may be trivialized, as here, where the conspiracy consists of the concert of a loathsome panderer and a prostitute to go from New York to Florida to ply their trade (see 145 F.2d 76 for details) and it would appear that a simple Mann Act prosecution would vindicate the majesty of federal law. However, even when appropriately invoked, the looseness and pliability of the doctrine present inherent dangers which should be in the background of judicial thought wherever it is sought to extend the doctrine to meet the exigencies of a particular case.

    28

    Conspiracy in federal law aggravates the degree of crime over that of unconcerted offending. The act of confederating to commit a misdemeanor, followed by even an innocent overt act in its execution, is a felony and is such even if the misdemeanor is never consummated.[9] The more radical proposition also is well-established that at common law and under some statutes a combination may be a criminal conspiracy even if it contemplates only acts which are not crimes at all when perpetrated by an individual or by many acting severally.[10]

    29

    [450] Thus the conspiracy doctrine will incriminate persons on the fringe of offending who would not be guilty of aiding and abetting or of becoming an accessory, for those charges only lie when an act which is a crime has actually been committed.[11]

    30

    Attribution of criminality to a confederation which contemplates no act that would be criminal if carried out by any one of the conspirators is a practice peculiar to Anglo-American law. "There can be little doubt that this wide definition of the crime of conspiracy originates in the criminal equity administered in the Star Chamber."[12] In fact, we are advised that "The modern crime of conspiracy is almost entirely the result of the manner in which conspiracy was treated by the court of Star Chamber."[13] The doctrine does not commend itself to jurists of civil-law countries,[14] despite universal recognition that an organized society must have legal weapons for combatting organized criminality. Most other countries have devised what they consider more discriminating principles upon which to prosecute criminal gangs, secret associations and subversive syndicates.[15]

    31

    [451] A recent tendency has appeared in this Court to expand this elastic offense and to facilitate its proof. In Pinkerton v. United States, 328 U.S. 640, it sustained a conviction of a substantive crime where there was no proof of participation in or knowledge of it, upon the novel and dubious theory that conspiracy is equivalent in law to aiding and abetting.

    32

    Doctrines of conspiracy are not only invoked for criminal prosecution, but also in civil proceedings for damages or for injunction, and in administrative proceedings to apply regulatory statutes. They have been resorted to by military commissions and on at least one notable occasion when civil courts were open at the time and place to punish the offense.[16] This conspiracy concept was employed to prosecute laborers for combining to raise their wages and formed the basis for abuse of the labor injunction.[17] The National Labor Relations Act found it necessary to provide that concerted labor activities otherwise lawful were not rendered unlawful by mere concert.[18] But in other fields concert may still be a crime though it contemplates only acts which each could do lawfully on his own.

    33

    The interchangeable use of conspiracy doctrine in civil as well as penal proceedings opens it to the danger, absent in the case of many crimes, that a court having in mind [452] only the civil sanctions will approve lax practices which later are imported into criminal proceedings. In civil proceedings this Court frankly has made the end a test of the means, saying, "To require a greater showing would cripple the Act," United States v. Griffith, 334 U.S. 100, in dispensing with the necessity for specific intent to produce a result violative of the statute. Further, the Court has dispensed with even the necessity to infer any definite agreement, although that is the gist of the offense. "It is elementary that an unlawful conspiracy may be and often is formed without simultaneous action or agreement on the part of the conspirators. . . ." United States v. Masonite Corp., 316 U.S. 265, 275. One might go on from the reports of this and lower courts and put together their decisions condoning absence of proof to demonstrate that the minimum of proof required to establish conspiracy is extremely low, and we may expect our pronouncements in civil cases to be followed in criminal ones also.

    34

    Of course, it is for prosecutors rather than courts to determine when to use a scatter-gun to bring down the defendant, but there are procedural advantages from using it which add to the danger of unguarded extension of the concept.

    35

    An accused, under the Sixth Amendment, has the right to trial "by an impartial jury of the State and district wherein the crime shall have been committed." The leverage of a conspiracy charge lifts this limitation from the prosecution and reduces its protection to a phantom, for the crime is considered so vagrant as to have been committed in any district where any one of the conspirators did any one of the acts, however innocent, intended to accomplish its object.[19] The Government may, and often [453] does, compel one to defend at a great distance from any place he ever did any act because some accused confederate did some trivial and by itself innocent act in the chosen district. Circumstances may even enable the prosecution to fix the place of trial in Washington, D.C., where a defendant may lawfully be put to trial before a jury partly or even wholly made up of employees of the Government that accuses him. Cf. Frazier v. United States, 335 U.S. 497.

    36

    When the trial starts, the accused feels the full impact of the conspiracy strategy. Strictly, the prosecution should first establish prima facie the conspiracy and identify the conspirators, after which evidence of acts and declarations of each in the course of its execution are admissible against all. But the order of proof of so sprawling a charge is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the conspiracy itself. In other words, a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed. The naive assumption that prejudicial effects can be overcome by instructions to the jury, cf. Blumenthal v. United States, 332 U.S. 539, 559, all practicing lawyers know to be unmitigated fiction. See Skidmore v. Baltimore & Ohio R. Co., 167 F.2d 54.

    37

    The trial of a conspiracy charge doubtless imposes a heavy burden on the prosecution, but it is an especially difficult situation for the defendant. The hazard from loose application of rules of evidence is aggravated where [454] the Government institutes mass trials.[20] Moreover, in federal practice there is no rule preventing conviction on uncorroborated testimony of accomplices, as there are in many jurisdictions, and the most comfort a defendant can expect is that the court can be induced to follow the "better practice" and caution the jury against "too much reliance upon the testimony of accomplices." Caminetti v. United States, 242 U.S. 470, 495.

    38

    A co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together. If he is silent, he is taken to admit it and if, as often happens, co-defendants can be prodded into accusing or contradicting each other, they convict each other. There are many practical difficulties in defending against a charge of conspiracy which I will not enumerate.[21]

    39

    Against this inadequately sketched background, I think the decision of this case in the court below introduced [455] an ominous expansion of the accepted law of conspiracy. The prosecution was allowed to incriminate the defendant by means of the prostitute's recital of a conversation with defendant's alleged co-conspirator, who was not on trial. The conversation was said to have taken place after the substantive offense was accomplished, after the defendant, the co-conspirator and the witness had all been arrested, and after the witness and the other two had a falling out. The Court of Appeals sustained its admission upon grounds stated as follows:

    40
    ". . . We think that implicit in a conspiracy to violate the law is an agreement among the conspirators to conceal the violation after as well as before the illegal plan is consummated. Thus the conspiracy continues, at least for purposes of concealment, even after its primary aims have been accomplished. The statements of the co-conspirator here were made in an effort to protect the appellant by concealing his role in the conspiracy. Consequently, they fell within the implied agreement to conceal and were admissible as evidence against the appellant. Cf. United States v. Goldstein, 2 Cir., 135 F.2d 359; Murray v. United States, 7 Cir., 10 F.2d 409, certiorari denied, 271 U.S. 673. . . . While Bryan v. United States, 5 Cir., 17 F.2d 741, is by implication directly to the contrary, we decline to follow it."
    41

     

    42

    I suppose no person planning a crime would accept as a collaborator one on whom he thought he could not rely for help if he were caught, but I doubt that this fact warrants an inference of conspiracy for that purpose. Of course, if an understanding for continuous aid had been proven, it would be embraced in the conspiracy [456] by evidence and there would be no need to imply such an agreement. Only where there is no convincing evidence of such an understanding is there need for one to be implied.

    43

    It is difficult to see any logical limit to the "implied conspiracy," either as to duration or means, nor does it appear that one could overcome the implication by express and credible evidence that no such understanding existed, nor any way in which an accused against whom the presumption is once raised can terminate the imputed agency of his associates to incriminate him. Conspirators, long after the contemplated offense is complete, after perhaps they have fallen out and become enemies, may still incriminate each other by deliberately harmful, but unsworn declarations, or unintentionally by casual conversations out of court. On the theory that the law will impute to the confederates a continuing conspiracy to defeat justice, one conceivably could be bound by another's unauthorized and unknown commission of perjury, bribery of a juror or witness, or even putting an incorrigible witness with damaging information out of the way.

    44

    Moreover, the assumption of an indefinitely continuing offense would result in an indeterminate extension of the statute of limitations. If the law implies an agreement to cooperate in defeating prosecution, it must imply that it continues as long as prosecution is a possibility, and prosecution is a possibility as long as the conspiracy to defeat it is implied to continue.

    45

    I do not see the slightest warrant for judicially introducing a doctrine of implied crimes or constructive conspiracies. It either adds a new crime or extends an old one. True, the modern law of conspiracy was largely evolved by the judges. But it is well and wisely settled that there can be no judge-made offenses against the [457] United States and that every federal prosecution must be sustained by statutory authority.[22] No statute authorizes federal judges to imply, presume or construct a conspiracy except as one may be found from evidence. To do so seems to approximate creation of a new offense and one that I would think of doubtful constitutionality even if it were created by Congress.[23] And, at all events, it is one fundamentally and irreconcilably at war with our presumption of innocence.

    46

    There is, of course, strong temptation to relax rigid standards when it seems the only way to sustain convictions of evildoers. But statutes authorize prosecution for substantive crimes for most evil-doing without the dangers to the liberty of the individual and the integrity of the judicial process that are inherent in conspiracy charges. We should disapprove the doctrine of implied or constructive crime in its entirety and in every manifestation. And I think there should be no straining to uphold any conspiracy conviction where prosecution for the substantive offense is adequate and the purpose served by adding the conspiracy charge seems chiefly to get procedural advantages to ease the way to conviction.

    47

    Although a reversal after four trials is, of course, regrettable, I cannot overlook the error as a harmless one. But I should concur in reversal even if less sure that prejudice resulted, for it is better that the crime go unwhipped of justice than that this theory of implied continuance of conspiracy find lodgment in our law, either by affirmance or by tolerance. Few instruments of injustice [458] can equal that of implied or presumed or constructive crimes. The most odious of all oppressions are those which mask as justice.

    48

    MR. JUSTICE FRANKFURTER and MR. JUSTICE MURPHY join in this opinion.

    49

    MR. JUSTICE BURTON, dissenting.

    50

    While I agree with the opinion of the Court that the hearsay testimony in question was not properly admissible, I regard its admission, under the circumstances of this case, as an absolutely harmless error.

    51

    In speaking of harmless errors that may result from the admission of evidence, this Court has said:

    52
    "Errors of this sort in criminal causes conceivably may be altogether harmless in the face of other clear evidence, although the same error might turn scales otherwise level, as constantly appears in the application of the policy of § 269[*] to questions of the admission of cumulative evidence." Kotteakos v. United States, 328 U.S. 750, 763.
    53

     

    54

    [459] Again, in determining whether error in the admission of evidence should result in a reversal of a judgment, we said that the question is —

    55
    "what effect the error had or reasonably may be taken to have had upon the jury's decision. . . .
    56
     
    57
    .....
    58
    "If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress." Id. at pp. 764-765.
    59

     

    60

    The issue before us involves no constitutional question or specific command of Congress. The trial was a long one concerning personal conduct involving simple issues of fact. The record of it covers more than 800 pages. The jury must have been thoroughly familiar with the issues and with the degree of dependability, if any, to be placed upon the oral testimony of the petitioner and of the two witnesses involved in the conversation that is before us as reported by one of them. The evidence supporting the jury's verdict was cumulative, repetitive and corroborated to such a point that I cannot believe that the verdict or the rights of the parties could have been appreciably affected by such weight as the jury may have attached to this reported snatch of conversation between two people of such negligible dependability as was demonstrated here. After this extended fourth trial, to set aside this jury's verdict merely because of this particular bit of hearsay testimony seems to me to be an unrealistic procedure that tends to make a travesty of the jury system which is neither necessary nor deserved. I would affirm the judgment below.

    61

    [1] The Florida grand jury failed to indict and the cases there were closed without prosecution in February, 1942. The New York indictments were not returned until January, 1943.

    62

    [2] Commonwealth v. Smith, 151 Mass. 491, 24 N.E. 677; People v. Mol, 137 Mich. 692, 707, 100 N.W. 913, 918; Hooper v. State, 187 Ark. 88, 92, 58 S.W.2d 434, 435; State v. Gauthier, 113 Ore. 297, 307, 231 P. 141, 145; State v. Emory, 116 Kan. 381, 384, 226 P. 754, 756; Carter v. State, 106 Ga. 372, 376, 32 S.E. 345, 346-347; Watson v. State, 166 Miss. 194, 213, 146 So. 122, 127; Baldwin v. State, 46 Fla. 115, 120-121, 35 So. 220, 222; State v. Strait, 279 S.W. 109 (Mo.).

    63

    [1] The phrase is Judge Cardozo's — The Nature of the Judicial Process, p. 51.

    64

    [2] The Conference of Senior Circuit Judges, presided over by Chief Justice Taft, in 1925 reported:

    65

    "We note the prevalent use of conspiracy indictments for converting a joint misdemeanor into a felony; and we express our conviction that both for this purpose and for the purpose — or at least with the effect — of bringing in much improper evidence, the conspiracy statute is being much abused.

    66

    "Although in a particular case there may be no preconcert of plan, excepting that necessarily inherent in mere joint action, it is difficult to exclude that situation from the established definitions of conspiracy; yet the theory which permits us to call the aborted plan a greater offense than the completed crime supposes a serious and substantially continued group scheme for cooperative law breaking. We observe so many conspiracy prosecutions which do not have this substantial base that we fear the creation of a general impression, very harmful to law enforcement, that this method of prosecution is used arbitrarily and harshly. Further the rules of evidence in conspiracy cases make them most difficult to try without prejudice to an innocent defendant." Annual Report of the Attorney General for 1925, pp. 5-6.

    67

    Fifteen years later Judge Learned Hand observed: ". . . so many prosecutors seek to sweep within the drag-net of conspiracy all those who have been associated in any degree whatever with the main offenders. That there are opportunities of great oppression in such a doctrine is very plain, and it is only by circumscribing the scope of such all comprehensive indictments that they can be avoided." United States v. Falcone, 109 F.2d 579, 581.

    68

    [3] Harno, Intent in Criminal Conspiracy, 89 U. of Pa. L. Rev. 624: "In the long category of crimes there is none, not excepting criminal attempt, more difficult to confine within the boundaries of definitive statement than conspiracy."

    69

    An English author — Wright, The Law of Criminal Conspiracies and Agreements, p. 11 — gives up with the remark: "but no intelligible definition of `conspiracy' has yet been established."

    70

    [4] Justice Holmes supplied an oversimplified working definition in United States v. Kissel, 218 U.S. 601, 608: "A conspiracy is a partnership in criminal purposes." This was recently restated "A conspiracy is a partnership in crime." Pinkerton v. United States, 328 U.S. 640, 644. The latter is inaccurate, since concert in criminal purposes, rather than concert in crime, establishes the conspiracy.

    71

    Carson offers the following resume of American cases: "It would appear that a conspiracy must be a combination of two or more persons by some concerted action to accomplish some criminal object; or some object not criminal by criminal means; or, some object not criminal by means which are not criminal, but where mischief to the public is involved; or, where neither the object nor the means are criminal, or even unlawful, but where injury and oppression to individuals are the result." The Law of Criminal Conspiracies and Agreements, as Found in The American Cases, p. 123.

    72

    [5] See, for example:

    73

    8 U.S.C. § 47, Conspiracy to interfere with civil rights; (1) Preventing officer from performing duties; (2) Obstructing justice, intimidating party, witness, or juror; (3) Depriving persons of rights or privileges. 10 U.S.C. § 1566, Conspiracy by persons in military service to defraud the U.S. 12 U.S.C. § 1138d (f), Conspiracy involving Farm Credit Banks, Administration, etc. 15 U.S.C.: §§ 1-3, Conspiracy in restraint of trade; § 8, Conspiracy in restraint of import trade. 18 U.S.C. as revised by the Act of June 25, 1948, 62 Stat. 928 et seq., effective September 1, 1948: § 2384, Seditious conspiracy; §§ 2385, 2387, Conspiracy to impair loyalty of armed forces or advocate overthrow of U.S. Government by force; § 241, Conspiracy to injure person in exercise of civil rights; § 372, Conspiracy to prevent officer from performing duties; § 286, Conspiracy to defraud the Government by obtaining payment of a false claim; § 371, Conspiracy to defraud the United States; §§ 1501-1506, Conspiracy to obstruct justice; §§ 752, 1792, Conspiracy to cause riots at federal penal institutions; § 1201, Conspiracy to transport kidnapped person in interstate commerce; § 2314, Conspiracy to transport stolen property and counterfeiting instruments in interstate commerce; § 1951, Conspiracy to violate Anti-Racketeering Act; § 2192, Conspiracy to incite mutiny on shipboard; § 2271, Conspiracy to cast away vessel. 22 U.S.C. § 234, Conspiracy to injure property of foreign government. 31 U.S.C. § 231, Conspiracy to obtain payment of false claims. 34 U.S.C. § 749a, Conspiracy to bid collusively on construction of naval aircraft. 38 U.S.C. § 715, Conspiracy to falsify pension claims. 50 U.S.C. § 34, Conspiracy to disclose national defense information or commit espionage. 50 U.S.C. App. § 311, Conspiracy to violate Selective Service Act.

    74

    [6] Harno, Intent in Criminal Conspiracy, 89 U. of Pa. L. Rev. 624, 632.

    75

    [7] See Senturia, Conspiracy, Political, IV Encyc. Soc. Sci. 238 (1931).

    76

    On conspiracy principles German courts, on May 30, 1924, adjudged the Nazi Party to be a criminal organization. It also held in 1928 that the Leadership Corps of the Communist Party was a criminal organization and in 1930 entered judgment of criminality against the Union of Red Front Fighters of the Communist Party. See note 15.

    77

    [8] 8 Holdsworth, History of English Law, 383. Miller, Criminal Law, p. 110.

    78

    [9] 18 U.S.C.A. § 371. Until recently, the punishment for such a felony could have been far in excess of that provided for the substantive offense. However, the Act of June 25, 1948, c. 645, 62 Stat. 683, 701, provides that in such a case the punishment for the conspiracy shall not exceed the maximum provided for such misdemeanor.

    79

    [10] This is the federal law applicable to antitrust prosecutions. For the history of this conception and its perversion, particularly in labor cases, see Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393. On the abuse of conspiracy see O'Brian, Loyalty Tests and Guilt by Association, 61 Harv. L. Rev. 592, and Note, The Conspiracy Dilemma: Prosecution of Group Crime or Protection of Individual Defendants, 62 Harv. L. Rev. 276.

    80

    [11] This statement, of course, leaves out of account the subject of attempts with which conspiracy is said to be allied. 8 Holdsworth, History of English Law, 382.

    81

    [12] Id., 382.

    82

    [13] Id., 379.

    83

    [14] "It is utterly unknown to the Roman law; it is not found in modern Continental codes; few Continental lawyers ever heard of it. It is a fortunate circumstance that it is not encrusted so deep in our jurisprudence by past decisions of our courts that we are unable to slough it off altogether. It is a doctrine which has proved itself the evil genius of our law wherever it has touched it." Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393, 427.

    84

    [15] Counsel representing the United States, the United Kingdom, the French Republic, and the Soviet Union, and German defendants, indulged in some comparisons of the relevant laws of several nations before the International Military Tribunal at Niirnberg in connection with organizations there accused as criminal. 8 Trial of Major War Criminals (GPO 1947), pp. 353, et seq.; 2 Nazi Conspiracy and Aggression (GPO 1946), p. 1; Jackson, The Nurnberg Case, p. 95.

    85

    [16] The Assassination of President Lincoln and the Trial of the Conspirators, New York, 1865. See, however, Ex parte Milligan, 4 Wall. 2.

    86

    [17] See Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393, 403.

    87

    [18] International Union, U.A.W.A. v. Wisconsin Employment Relations Board, ante, p. 245.

    88

    [19] Hyde v. United States, 225 U.S. 347. Mr. Justice Holmes, on behalf of himself and Justices Hughes, Lurton and Lamar, wrote a vigorous protest which did not hesitate to brand the doctrine as oppressive and as "one of the wrongs that our forefathers meant to prevent." 225 U.S. 347, 387.

    89

    [20] An example is afforded by Allen v. United States, 4 F.2d 688. At the height of the prohibition frenzy, seventy-five defendants were tried on charges of conspiracy. A newspaper reporter testified to going to a drinking place where he talked with a woman, behind the bar, whose name he could not give. There was not the slightest identification of her nor showing that she knew or was known by any defendant. But it was held that being back of the bar showed her to be a co-conspirator and, hence, her statements were admissible against all. He was allowed to relate incriminating statements made by her.

    90

    [21] For courtroom technique employed in the trial of conspiracy cases by both prosecution and defense, see O'Dougherty, Prosecution and Defense under Conspiracy Indictments, 9 Brooklyn L. Rev. 263. His survey, which accords with our observation, will hardly convince one that a trial of this kind is the highest exemplification of the working of the judicial process.

    91

    [22] United States v. Hudson, 7 Cranch 32; United States v. Worrall, 2 Dall. 384; United States v. Coolidge, 1 Wheat. 415; United States v. Eaton, 144 U.S. 677, 687; United States v. Bathgate, 246 U.S. 220, 225. See, however, Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 73.

    92

    [23] Cf. Tot v. United States, 319 U.S. 463.

    93

    [*] Section 269 of the Judicial Code, as then in effect, and as in effect at the time of the trial of the instant case and of the entry of the judgment below, provided:

    94

    "SEC. 269. . . . On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." 40 Stat. 1181, 28 U.S.C. § 391.

    95

    Rule 52 (a) of the Federal Rules of Criminal Procedure, as continuously in effect during and since the time of the trial of the instant case and as still in effect, provides:

    96

    "RULE 52. HARMLESS ERROR AND PLAIN ERROR.

    97

    "(a) HARMLESS ERROR. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. . . ."

  • 5 Model Penal Code sec. 5.03

  • 6 Criminal Law Spring 2015

    • 6.1 I. Introduction

      During orientation we read the case, Durham v. State. This case serves as an introduction to the criminal law course because of its basic but profound recognition of the violence at the core of the state’s ability to arrest and punish individuals who resist the law. Law enforcement depends on force, that is, state coercion of individuals to obey the law and to submit to legal authority, through the threat of punishment.

      This course deals with the what, why, and how of criminal law: What should be criminal? Why should it be criminal? How do we define a crime, and how should we punish it?

      It also deals with the “so what” of criminal law: How does it reflect our values? How does it shape our society? How does it contain our views of what it means to be human? What is criminal law for?

      Our study of criminal law will begin by examining basic elements of just punishment: (1) legality, the requirement that criminal punishment have a legal foundation; (2) actus reus, the actual proscribed conduct that constitutes the crime; and (3) mens rea, the state of mind necessary for a given action to be criminal.

      Throughout the course we will also consider the common justifications of criminal punishment: (1) retribution; (2) deterrence; (3) incapacitation; and (4) rehabilitation.

      • 6.1.1 Durham v. State

        1

        199 Ind. 567

        2
        DURHAM
        v.
        STATE OF INDIANA
        3

        No. 25,179.
        Filed December 23, 1927.

        4

        From Kosciusko Circuit Court; Lemuel W. Royse,

        5

        James A. Durham was convicted of assault and battery, and he appeals. Reversed.

        6

        J. Edward Headley, for appellant.

        7

        Arthur L. Gilliom, Attorney-General, for the State.

        8

        MARTIN, J.—Appellant, a deputy warden or commissioner of fisheries and game, of the Indiana Department of Conservation, while engaged in the duties of his office, arrested and sought to hold in custody one Charles Long, for a violation of the fish and game law, which violation (taking fish by means of a gill net) appellant claimed had just been committed within his view, on Little Tippecanoe Lake about midnight, December 4-5, 1925. Long, after being placed under arrest, resisted, and, with a companion, attempted to escape in a row boat. Appellant, wading out in the water, clung to the boat and, after an exciting struggle or fight in the edge of the lake, shot Long with a revolver and wounded him.

        9

        The prosecution was by affidavit in one count charging appellant with unlawfully committing an assault and battery  with intent and premeditated malice to kill and murder Long, and, after a trial by jury and a verdict of guilty of assault and battery and assessing a fine of [570] $700 was returned, judgment was. rendered on the verdict.

        10

        Alleged errors, assigned as reasons in support of appellant’s motion for a new trial, which was overruled, include the giving of three instructions on the court’s own motion and in refusing to give a number of instructions requested by appellant.

        11

        The evidence pertinent to a consideration of the questions raised herein, briefly stated, is as follows: The prosecuting witness, Long, testified that he rowed the boat occupied by himself and his companion, Hammond, in to shore, that he stepped out on a pole laid out on the margin of ice at the lake's edge, and pulled the boat up;  that appellant ran up to him, put his hand up him, and said, "You are under arrest"; that Long forcibly pushed appellant away with his open hand, got back in the boat and that he and his companion pushed the boat out in the water with oars or paddles.  That appellant ran toward the boat, wading out in the water and mud up to his knees (going in to his arm pits when he ran across to grab the bow) holding on first to the bow and later to the chain of the boat. That Long and Hammond would push and drag appellant out into the mud and water of the lake and appellant would yank the boat back. This happened “a few times.” That appellant said, "Lay down that oar," “Put that oar down," "Cut it out," and that "he would shoot unless if I didn't lay the oar down" and that "he hollered for Manuel" (another game warden). That appellant shot twice the second shot hitting Long, who was still "pushing the boat off," that Long then grabbed appellant's revolver and appellant "jerked back and hit me with it." That Long then grabbed the chain, but did not get it away from appellant, then Long struck at and hit appellant's gun and arm with an oar and then punched appellant in the stomach with the oar, the ap [571] pellant then "snapped the gun at me, but it didn't go off” and that Long finally jerked the chain away from him and escaped.

        12

        The appellant testified that when Long stepped out on shore, he stepped from behind some bushes, approaches and said, “You men are under arrest; I am an officer, come on over to the lantern" (which Long had left on shore). That Long said, "I won't do it," that he took hold of Long's arm twice, but that Long jerked away, broke loose from him, struck him about the body with his fist, jumped into the boat and shoved it out into the lake. That appellant called for Manuel Klick (the other warden). That he waded into the lake and grabbed hold of the bow of the boat, that Long struck at him trying to make him let go of the boat but that he took his hands off, dodged the blows and again took hold of the boat; that Long turned to Hammond and said, “Hand me the boat oar and I will brain the son of a bitch.” That Hammond handed Long the boat oar, and Long struck appellant a lick on the left shoulder, knocking him loose from the boat, whereupon appellant grabbed the boat's chain which hung down in the water, fired a shot with his revolver into the water, and said, “If you do that again I'll shoot you." That Long then struck at him several times, hitting him once on the left side of the face or cheek, while appellant kept telling him to, "Cut it out or I will shoot you.” That Long again hit appellant on the shoulder close to the neck, whereupon appellant, who was then in water up to his armpits, shot at Long's arm to disable him and make him quit striking with the oar, and wounded him in the ice cold water. That appellant feared for his life, being afraid Long would hit him over the head and sink him in the ice cold water. That Long then got back further in the boat, pushed and rowed, that appellant hung on until he [572] was exhausted and had to let loose of the chain and let them go.

        13

        Instruction eight given by the court was incorrect and erroneous, and appellee in its brief on confession of errors admits this and says, "We are unable to show from the record that appellant was harmed by this instruction. He was actually found guilty of the degree of offense which the court erroneously defined." The court in this instruction undertook to define assault and battery but omitted the element of unlawfulness. The touching alleged to be in a rude, insolent or angry manner must also be alleged to be unlawful before it can constitute the offense for which appellant was convicted. §2419 Burns 1926; Cranorv. State (1872), 39 Ind. 64. The failure of the court, in instruction eight, to state this element of the offense was particularly prejudicial to this appellant’s rights because the nature of his duties as a peace officer (§4755 Burns 1926) makes necessary aggressive acts which may be lawful when performed by an officer in making an arrest, but which would be unlawful if performed by a private individual.

        14

        Instruction fifteen was to the effect that, before a defendant can exercise the right of self-defense, he must be free from fault, and that, if by his own unauthorized acts, he brought the assault upon himself, then he cannot claim the right of self-defense against such assault. This instruction, as an abstract proposition of law, is correct, but in the instant case, where the defendant was an officer of the law engaged in carrying out his duties as such, he was entitled to have included in the instructions a further statement of the law applicable to the exercise of self-defense by an arresting officer. The usual rules of the law as to self-defense are applicable to an arresting officer, but with certain qualifications. An officer may, of course, defend[573] himself like any other person who is assaulted, but the law does not stop there, but throws around him a special protection because he must of necessity press forward and accomplish his object, 2 R. C. L. 474, and, in such a case, the officer is entitled to have the jury so instructed. Loveless v. Hardy (1918), 201 Ala. 605, 79 So. 37. The acts of appellant in seeking to prevent Long's escape, prior to his act of shooting, could not, under any theory of law, be considered as "his own unauthorized act," but on the contrary, were acts expressly required of him by law.

        15

        Instruction twelve was to the effect that if Long resisted arrest, appellant would not be authorized to use such force and instrumentalities as would imperil the life of Long in order to overcome his resistance; that human life is too precious to be imperiled by arrest of one who is only guilty of a misdemeanor; that if appellant, in order to overcome Long's resistance, used a dangerous and deadly weapon, and in such manner as to endanger his life, and thereby inflict serious wounds, then the appellant would be guilty of assault and battery, at least. This instruction, standing alone or considered in conjunction with instruction fifteen and the other instructions, did not correctly state the law, and the court erred in giving it.

        16

        Our general statutes concerning arrests, and applicable to all classes of criminal cases, provide that: “the defendant shall not be subject to any more restraint than is necessary for his arrest and detention." §2157 Burns 1926. "If, after notice of intention to arrest the defendant, he either flees or forcibly resists, the officer may use all necessary means to effect the arrest." §2159 Burns 1926.

        17

        In Plummer v. State (1893), 135 Ind. 308, 34 N. E. 968, the court said:

        18

        “The law does not allow a peace officer to use more force than is necessary to effect an [574] arrest. . . .  And if he do use such unnecessary force, he . . . may be lawfully resisted. . . . If the  officer is resisted before he has used needless force and  violence, he may then press forward and overcomeresistance, even to the taking of the life of the personarrested, if absolutely necessary."

        19

        The degree or limit of force that lawfully may be employed by an officer in arresting one charged with a misdemeanor (as distinguished from a felony) has been considered in a large number of cases in other jurisdictions. See cases collected and cited in 5 C. J. 426; 2 R. C. L.  473; 2 Brill, Cyc Criminal Law §§692, 713; Laning, Arrest and Prosecution p. 508; Clark and Marshall, Law of Crimes (2d. ed.) §271; Notes in 3 A. L. R. 1170-1177 and in 42 A. L. R. 1200-1207.

        20

        The general rules deduced therefrom may be stated to be:

        21

        (A) that an officer having the right to arrest a misdemeanant may use all the force that is reasonably necessary to accomplish the arrest, except

        22

        (B) that he may not merely for the purpose of effecting the arrest, kill or inflict great bodily harm endangering the life of the misdemeanant;[1] thus an officer may not kill or shed blood in attempting to arrest a misdemeanant who is fleeing, but not resisting.[2]

        23

        [575] That if the defendant physically resists, the officer need not retreat, but may press forward and repel the resistance with such force, short of taking life, as is necessary to effect the arrest; and if in so doing, the officer is absolutely obliged to seriously wound or take the life of the accused, in order to prevent the accused from seriously wounding or killing him, he will be justified.[3] Smith v. State (1894), 59 Ark. 132, 26 S. W. 712, 43 Am. St. 20; Fugate v. Commonwealth (1920), 187 Ky. 564, 219 S. W. 1069; Smith v. Commonwealth (1917), 176 Ky. 466; State v. Dunning (1919), 177 N. C. 559, 98 S. E. 530, 3 A. L. R. 1166 and note; State v. Dierberger (1888), 96 [576] Mo. 666, 675, 10 S. W. 168, 9 Am. St. 380; Krueger v. State (1920), 171 Wis. 566, 177 N. W. 917.

        24

        To adopt the rule contended for by the prosecution in the trial below and stated by the court in instruction twelve would be to paralyze the strong arm of the law and render the state powerless to use extreme force when extreme resistance is offered, and would permit misdemeanants to stay the power of the state by unlawful resistance.[4]

        25

        "To say to a defendant 'you may measure strength with the arresting officer, and avoid being taken if are the stronger, or, after your arrest, you may break away unless he can prevail over you in a wrestle,' is to elevate mere brute force to a position of command over the wheels of justice" 1 Bishop, Crim. Proc. (2d ed.) §16.

        26

        In the trial of this case, it would seem that the duty of officers to enforce the fish and game laws (§§ 4743, 4755 Burns 1926) and to prevent a prisoner from escaping from custody (§2608 Burns 1926) as well as the duty of citizens to submit peaceably to lawful arrest were almost lost sight of. This is illustrated by the following quotations from the record of the cross-examinations of the appellant:“Q: You knew at that time, [577] Mr. Durham, you would have been in perfect safety if you had let loose of the chain? A. They (the state) didn't employ me to let loose of the chain. Q. You held on to that chain notwithstanding the fact that you thought you would be brained, for the purpose of effecting that arrest, didn't you? A. I held on to the chain to arrest those fellows and keep them there until my partner returned. Q. Didn’t you know you would have been in perfect safety without chance of a scratch if you let loose of that chain? The court overruled appellant's objection to this question. A. No I didn't. He might have hit me before I got back out of the water. Q. He wasn't pursuing you at any time, was he? A. He was striking at me. Q. You knew if you let loose of that chain or boat that Long and he (Hammond) would get away from you didn't you? A. Yes Sir.”  It also appears from the record that the prosecuting attorney refused to prosecute Long for his violation of the law and promised him that he would not be prosecuted if he would testify for the state in this case.

        27

        Many acts which are not inherently wrong and involve no moral turpitude, have been made unlawful by statutes enacted in the interest of the welfare of the public or state, or for the conservation of its natural resources. The law against seining fish is such a law, and respect for our government and its authority requires that a citizen obey the law. It is a narrow attitude and one that is dangerous to our country for those who may feel that their personal rights and liberties have been wrongfully curtailed by legislation to seek to nullify the law by violation thereof and by defying constituted legal authority when placed under arrest.

        28

        Instruction twelve was also bad for two additional reasons. (1) It failed to instruct on the question of [578] what constitutes an arrest. It was material in this case for the jury to know what constituted an arrest and the statutory definition of arrest and the authority and requirements in respect thereof should have been embodied in the instructions. The court also refused to give an instruction tendered by appellant defining arrest. (2) It required that appellant should have been more specific in informing Long that he was an "officer," and should have stated that he was a "deputy game warden and was making the arrest deputy game warden." The evidence was sufficient to submit the question of a valid arrest to the jury without a special requirement being made by the court in respect to the particular classification of appellant as an officer.

        29

        The judgment is reversed, with directions to sustain appellant's motion for a new trial and for further proceedings not inconsistent herewith.

        30

        [1] The law considers it better and more in consonance with modern ideas regarding the sanctity of human life to allow one to escape who is guilty only of a misdemeanor, and whose offense will subject him only to a small fine or short imprisonment, rather than to sacrifice his life. Reneau v. State (1879), 2 Lea (70 Tenn.) 720, 31 Am. Rep. 626; United States v. Clark (1887), 31 Fed. 710; Thomas v. Kinkhead (1892), 55 Ark. 502, 18 S. W. 854, 29 Am: St. 68, 15 L. R. A. 558; Head v. Martin (1887), 85 Ky. 480, 3 S. W. 622; Skidmore v. State (1877) 2 Texas Court of Appeals 20.

        31

        [2] The most common examples of this class of cases are those where officers shoot at misdemeanants, their mounts, or their automobile tires and wound or kill the misdemeanants.

        32

        "To permit the life of one charged with a mere misdemeanor to be taken when fleeing from the officer would, aside from its inhumanity be productive of more abuse than good. The law need not go unenforced. The officer can summon his posse and take the offender.” Head v. Martin, supra.

        33

        See the following: Note 67 L. R. A. 300; Wiley v. State (1918), 19 Ariz. 346, 170 P. 869, L. R. A. 1918D 878 and note: Brown v. Weaver(1898),  76 Miss. 7, 42 L. R. A. 428; Commonwealth v. Loughhead (1907), 218 Pa. 429, 120 Am. St. 896; Sossamon v. Cruse (1908), 133 N. C. 470;  State v. Coleman (1905), 186 Mo. 151, 84 S. W. 978, 69 L. R. A. 381.

        34

        [3] Most of the texts divide the cases involving shooting or killing of those arrested for misdemeanors by officers where resistance is met, into two classes: (a) Those holding that, if a misdemeanant resists arrest, the officer may use such force as is necessary to effect it, even to severely injuring or killing the offender; and (b) those holding that the officer is never justified in taking or endangering life except in seIf-defense. 5 C. J. 426, Arrest §62 n. 95, 97 and 98; 2 R. C. L. 473, Arrest §30 n. 8, 4 and 7; 2 Brill, Cyc Cr. Law n.73-77, §713 n. 33; Clark and Marshall, Law of Crimes (2d. ed §271; Note 3 A. L. R. 1175;  Note 42 A. L. R. 1203. But, as has already been noted, the protection which an officer is entitled to receive in making an arrest is a different thing from self-defense, for it is his duty to push forward and make the arrest and to secure and retain custody of the prisoner, and Mikell in Clark, Cr. Froc. (2d ed.) §17. note 50 points out that: "though in theory the distinction between killing to effect the arrest and killing only in self-defense may be important, the result in an actual case is  the same. . . . All cases agree that the officer need not abandon the effort to complete the arrest because of. . . . resistance. . . . and that it is his duty to continue this effort. . . . It will never be apparently necessary to kill to effect the arrest until the officer’s life is in apparent danger, for until that time it does not appear but that a little more force than is being used will be sufficient to effect the arrest without killing."

        35

        See, also, the following cases in support of the text above: Donehy & Prather v. Commonwealth (1916), 170 Ky. 474; Commonwealth v. Marcum (1909), 135 Ky.1, 122 S. W. 215, 24 L. R. A. (N.S.) 1194; Thomas v. Kinkead, supra; State v. Coleman (1905), 186 Mo. 151, 69 L. R. A. 381; Loveless v. Hardy, supra; Commonwealth v. Greer (1898), 20 Pa. Co. 535;  State v. Garrett (1863), 60 N. C. 144, 84 Am: Dec. 359; Lynn v. People (1897), 170 Ill. 527, 48 N. E. 964; U. S. Bank & Trust Co. v. Switchmens Union (1917), 256 Pa. St. 228, 100 Atl. 808, L. R. A. 1917E 311.

        36

        [4] An officer, in the performance of his duty as such, stands on an entirely different footing from an individual. He is a minister of justice, and is entitled to the peculiar protection of the law. Without submission tohis authority there is no security and anarchy reigns supreme.He must, of necessity, be the aggressor, and the law affords him special protection.In his capacity as an individual he may take advantage of the 'first law of nature,' and defend himself againstassault; as an officer he has an affirmative to perform, and in the performance thereof he should, so long as he keeps within due bounds, be protected. Sentimentalism should not go so far as to obstruct the due administration of law, and brute force should not be permitted toobstruct the wheels of justice." State v. Smith (1905), 127 Iowa534, 103 N. W. 944, 109 Am. St. 402, 70 L. R. A. 246, 4 Ann. Cas. 758.This language was used in a case where the officer arrested a misdemeanant and killed one who sought to rescue the prisoner and whoseact in so doing was by statute made a felony, but the reasoning quotedis none the less applicable here. A note concerning the right of an officer to kill a misdemeanant in order to effectuate an arrest accompanies the report of this case in 4 Ann. Cas. at page 760.

      • 6.1.2 Tennessee v. Garner

        Tennessee v. Garner

        1
        471 U.S. 1
        3
        105 S.Ct. 1694
        5
        85 L.Ed.2d 1
        7
        TENNESSEE, Appellant,

        v.

        Cleamtee GARNER, etc., et al. MEMPHIS POLICE DEPARTMENT, et al., Petitioners, v. Cleamtee GARNER, etc., et al.

        9
        Nos. 83-1035, 83-1070.
        11
        Argued Oct. 30, 1984.
        13
        Decided March 27, 1985.
        15
        Syllabus
        17

                  A Tennessee statute provides that if, after a police officer has given notice of an intent to arrest a criminal suspect, the suspect flees or forcibly resists, "the officer may use all the necessary means to effect the arrest." Acting under the authority of this statute, a Memphis police officer shot and killed appellee-respondent Garner's son as, after being told to halt, the son fled over a fence at night in the backyard of a house he was suspected of burglarizing. The officer used deadly force despite being "reasonably sure" the suspect was unarmed and thinking that he was 17 or 18 years old and of slight build. The father subsequently brought an action in Federal District Court, seeking damages under 42 U.S.C. § 1983 for asserted violations of his son's constitutional rights. The District Court held that the statute and the officer's actions were constitutional. The Court of Appeals reversed.

        19

                  Held: The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such force may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Pp. 7-22.

        21

        Page 2

        23

                  (a) Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment's reasonableness requirement. To determine whether such a seizure is reasonable, the extent of the intrusion on the suspect's rights under that Amendment must be balanced against the governmental interests in effective law enforcement. This balancing process demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. Pp. 7-12.

        25

                  (b) The Fourth Amendment, for purposes of this case, should not be construed in light of the common-law rule allowing the use of whatever force is necessary to effect the arrest of a fleeing felon. Changes in the legal and technological context mean that that rule is distorted almost beyond recognition when literally applied. Whereas felonies were formerly capital crimes, few are now, or can be, and many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Also, the common-law rule developed at a time when weapons were rudimentary. And, in light of the varied rules adopted in the States indicating a long-term movement away from the common-law rule, particularly in the police departments themselves, that rule is a dubious indicium of the constitutionality of the Tennessee statute. There is no indication that holding a police practice such as that authorized by the statute unreasonable will severely hamper effective law enforcement. Pp. 12-20.

        27

                  (c) While burglary is a serious crime, the officer in this case could not reasonably have believed that the suspect—young, slight, and unarmed—posed any threat. Nor does the fact that an unarmed suspect has broken into a dwelling at night automatically mean he is dangerous. Pp. 20-22.

        29

                  710 F.2d 240 (CA6 1983), affirmed and remanded.

        31

                  Henry L. Klein, Memphis, Tenn., for petitioners in No. 83-1070.

        33

                  W.J. Michael Cody, Memphis, Tenn., for appellant in No. 83-1035.

        35

        Page 3

        37

                  Steven L. Winter, New York City, for Cleamtee Garner, et al.

        39

                   Justice WHITE delivered the opinion of the Court.

        41

                  This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.

        43
        I
        45

                  At about 10:45 p.m. on October 3, 1974, Memphis Police Officers Elton Hymon and Leslie Wright were dispatched to answer a "prowler inside call." Upon arriving at the scene they saw a woman standing on her porch and gesturing toward the adjacent house.1 She told them she had heard glass breaking and that "they" or "someone" was breaking in next door. While Wright radioed the dispatcher to say that they were on the scene, Hymon went behind the house. He heard a door slam and saw someone run across the backyard. The fleeing suspect, who was appellee-respondent's decedent, Edward Garner, stopped at a 6-feet-high chain link fence at the edge of the yard. With the aid of a flashlight, Hymon was able to see Garner's face and hands. He saw no sign of a weapon, and, though not certain, was "reasonably sure" and "figured" that Garner was unarmed. App. 41, 56; Record 219. He thought Garner was 17 or 18 years old and

        47

        Page 4

        49

        about 5'5" or 5'7" tall.2 While Garner was crouched at the base of the fence, Hymon called out "police, halt" and took a few steps toward him. Garner then began to climb over the fence. Convinced that if Garner made it over the fence he would elude capture,3 Hymon shot him. The bullet hit Garner in the back of the head. Garner was taken by ambulance to a hospital, where he died on the operating table. Ten dollars and a purse taken from the house were found on his body.4

        51

                    In using deadly force to prevent the escape, Hymon was acting under the authority of a Tennessee statute and pursuant to Police Department policy. The statute provides that "[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest." Tenn.Code Ann.

        53

        Page 5

        55

        § 40-7-108 (1982).5 The Department policy was slightly more restrictive than the statute, but still allowed the use of deadly force in cases of burglary. App. 140-144. The incident was reviewed by the Memphis Police Firearm's Review Board and presented to a grand jury. Neither took any action. Id., at 57.

        57

                  Garner's father then brought this action in the Federal District Court for the Western District of Tennessee, seeking damages under 42 U.S.C. § 1983 for asserted violations of Garner's constitutional rights. The complaint alleged that the shooting violated the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. It named as defendants Officer Hymon, the Police Department, its Director, and the Mayor and city of Memphis. After a 3-day bench trial, the District Court entered judgment for all defendants. It dismissed the claims against the Mayor and the Director for lack of evidence. It then concluded that Hymon's actions were authorized by the Tennessee statute, which in turn was constitutional. Hymon had employed the only reasonable and practicable means of preventing Garner's escape. Garner had "recklessly and heedlessly attempted to vault over the fence to escape, thereby assuming the risk of being fired upon." App. to Pet. for Cert. A10.

        59

                  The Court of Appeals for the Sixth Circuit affirmed with regard to Hymon, finding that he had acted in good-faith reliance on the Tennessee statute and was therefore within the scope of his qualified immunity. 600 F.2d 52 (1979). It remanded for reconsideration of the possible liability of the city, however, in light of Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which had come down after the District Court's decision. The District Court was

        61

        Page 6

        63

        directed to consider whether a city enjoyed a qualified immunity, whether the use of deadly force and hollow point bullets in these circumstances was constitutional, and whether any unconstitutional municipal conduct flowed from a "policy or custom" as required for liability under Monell. 600 F.2d, at 54-55.

        65

                  The District Court concluded that Monell did not affect its decision. While acknowledging some doubt as to the possible immunity of the city, it found that the statute, and Hymon's actions, were constitutional. Given this conclusion, it declined to consider the "policy or custom" question. App. to Pet. for Cert. A37-A39.

        67

                  The Court of Appeals reversed and remanded. 710 F.2d 240 (1983). It reasoned that the killing of a fleeing suspect is a "seizure" under the Fourth Amendment,6 and is therefore constitutional only if "reasonable." The Tennessee statute failed as applied to this case because it did not adequately limit the use of deadly force by distinguishing between felonies of different magnitudes—"the facts, as found, did not justify the use of deadly force under the Fourth Amendment." Id., at 246. Officers cannot resort to deadly force unless they "have probable cause . . . to believe that the suspect [has committed a felony and] poses a threat to the safety of the officers or a danger to the community if left at large." Ibid.7

        69

        Page 7

        71

                  The State of Tennessee, which had intervened to defend the statute, see 28 U.S.C. § 2403(b), appealed to this Court. The city filed a petition for certiorari. We noted probable jurisdiction in the appeal and granted the petition. 465 U.S. 1098, 104 S.Ct. 1589, 80 L.Ed.2d 122 (1984).

        73
        II
        75

                  Whenever an officer restrains the freedom of a person to walk away, he has seized that person. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). While it is not always clear just when minimal police interference becomes a seizure, see United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.

        77
        A.
        79

                    A police officer may arrest a person if he has probable cause to believe that person committed a crime. E.g., United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Petitioners and appellant argue that if this requirement is satisfied the Fourth Amendment has nothing to say about how that seizure is made. This submission ignores the many cases in which this Court, by balancing the extent of the intrusion against the need for it, has examined the reasonableness of

        81

        Page 8

        83

        the manner in which a search or seizure is conducted. To determine the constitutionality of a seizure "[w]e must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983); see Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 555, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976). We have described "the balancing of competing interests" as "the key principle of the Fourth Amendment." Michigan v. Summers, 452 U.S. 692, 700, n. 12, 101 S.Ct. 2587, 2593, n. 12, 69 L.Ed.2d 340 (1981). See also Camara v. Municipal Court, 387 U.S. 523, 536-537, 87 S.Ct. 1727, 1734-1735, 18 L.Ed.2d 930 (1967). Because one of the factors is the extent of the intrusion, it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out. United States v. Ortiz, 422 U.S. 891, 895, 95 S.Ct. 2585, 2588, 45 L.Ed.2d 623 (1975); Terry v. Ohio, 392 U.S. 1, 28-29, 88 S.Ct. 1868, 1883-1884, 20 L.Ed.2d 889 (1968).

        85

                  Applying these principles to particular facts, the Court has held that governmental interests did not support a lengthy detention of luggage, United States v. Place, supra, an airport seizure not "carefully tailored to its underlying justification," Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983) (plurality opinion), surgery under general anesthesia to obtain evidence, Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985), or detention for fingerprinting without probable cause, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985). On the other hand, under the same approach it has upheld the taking of fingernail scrapings from a suspect, Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), an unannounced entry into a home to prevent the destruction of evidence, Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), administrative housing inspections without probable cause to believe that a code violation will be found, Camara v. Municipal Court, supra, and a blood test of a drunken-driving suspect, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In each of these cases, the question was whether

        87

        Page 9

        89

        the totality of the circumstances justified a particular sort of search or seizure.

        91
        B
        93

                  The same balancing process applied in the cases cited above demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The intrusiveness of a seizure by means of deadly force is unmatched. The suspect's fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. Against these interests are ranged governmental interests in effective law enforcement.8 It is argued that overall violence will be reduced by encouraging the peaceful submission of suspects who know that they may be shot if they flee. Effectiveness in making arrests requires the resort to deadly

        95

        Page 10

        97

        force, or at least the meaningful threat thereof. "Being able to arrest such individuals is a condition precedent to the state's entire system of law enforcement." Brief for Petitioners 14.

        99

                  Without in any way disparaging the importance of these goals, we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects. Cf. Delaware v. Prouse, supra, 440 U.S., at 659, 99 S.Ct., at 1399. The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion. And while the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts,9 the presently available evidence does not support this thesis.10 The fact is that a majority of police de-

        101

        Page 11

        103

        partments in this country have forbidden the use of deadly force against nonviolent suspects. See infra, at 18-19. If those charged with the enforcement of the criminal law have abjured the use of deadly force in arresting nondangerous felons, there is a substantial basis for doubting that the use of such force is an essential attribute of the arrest power in all felony cases. See Schumann v. McGinn, 307 Minn. 446, 472, 240 N.W.2d 525, 540 (1976) (Rogosheske, J., dissenting in part). Petitioners and appellant have not persuaded us that shooting nondangerous fleeing suspects is so vital as to outweigh the suspect's interest in his own life.

        105

                  The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.

        107

                  It is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where

        109

        Page 12

        111

        feasible, some warning has been given. As applied in such circumstances, the Tennessee statute would pass constitutional muster.

        113
        III
        115
        A.
        117

                    It is insisted that the Fourth Amendment must be construed in light of the common-law rule, which allowed the use of whatever force was necessary to effect the arrest of a fleeing felon, though not a misdemeanant. As stated in Hale's posthumously published Pleas of the Crown:

        119

                  "[I]f persons that are pursued by these officers for felony or the just suspicion thereof . . . shall not yield themselves to these officers, but shall either resist or fly before they are apprehended or being apprehended shall rescue themselves and resist or fly, so that they cannot be otherwise apprehended, and are upon necessity slain therein, because they cannot be otherwise taken, it is no felony." 2 M. Hale, Historia Placitorum Coronae 85 (1736).

        121

                  See also 4 W. Blackstone, Commentaries *289. Most American jurisdictions also imposed a flat prohibition against the use of deadly force to stop a fleeing misdemeanant, coupled with a general privilege to use such force to stop a fleeing felon. E.g., Holloway v. Moser, 193 N.C. 185, 136 S.E. 375 (1927); State v. Smith, 127 Iowa 534, 535, 103 N.W. 944, 945 (1905); Reneau v. State, 70 Tenn. 720 (1879); Brooks v. Commonwealth, 61 Pa. 352 (1869); Roberts v. State, 14 Mo. 138 (1851); see generally R. Perkins & R. Boyce, Criminal Law 1098-1102 (3d ed. 1982); Day, Shooting the Fleeing Felon: State of the Law, 14 Crim.L.Bull. 285, 286-287 (1978); Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 798, 807-816 (1924). But see Storey v. State, 71 Ala. 329 (1882); State v. Bryant, 65 N.C. 327, 328 (1871); Caldwell v. State, 41 Tex. 86 (1874).

        123

        Page 13

        125

                  The State and city argue that because this was the prevailing rule at the time of the adoption of the Fourth Amendment and for some time thereafter, and is still in force in some States, use of deadly force against a fleeing felon must be "reasonable." It is true that this Court has often looked to the common law in evaluating the reasonableness, for Fourth Amendment purposes, of police activity. See, e.g., United States v. Watson, 423 U.S. 411, 418-419, 96 S.Ct. 820, 825-826, 46 L.Ed.2d 598 (1976); Gerstein v. Pugh, 420 U.S. 103, 111, 114, 95 S.Ct. 854, 861, 863, 43 L.Ed.2d 54 (1975); Carroll v. United States, 267 U.S. 132, 149-153, 45 S.Ct. 280, 283-285, 69 L.Ed. 543 (1925). On the other hand, it "has not simply frozen into constitutional law those law enforcement practices that existed at the time of the Fourth Amendment's passage." Payton v. New York, 445 U.S. 573, 591, n. 33, 100 S.Ct. 1371, 1382, n. 33, 63 L.Ed.2d 639 (1980). Because of sweeping change in the legal and technological context, reliance on the common-law rule in this case would be a mistaken literalism that ignores the purposes of a historical inquiry.

        127
        B
        129

                  It has been pointed out many times that the common-law rule is best understood in light of the fact that it arose at a time when virtually all felonies were punishable by death.11 "Though effected without the protections and formalities of an orderly trial and conviction, the killing of a resisting or

        131

        Page 14

        133

        fleeing felon resulted in no greater consequences than those authorized for punishment of the felony of which the individual was charged or suspected." American Law Institute, Model Penal Code § 3.07, Comment 3, p. 56 (Tentative Draft No. 8, 1958) (hereinafter Model Penal Code Comment). Courts have also justified the common-law rule by emphasizing the relative dangerousness of felons. See, e.g., Schumann v. McGinn, 307 Minn., at 458, 240 N.W.2d, at 533; Holloway v. Moser, supra, 193 N.C., at 187, 136 S.E., at 376 (1927).

        135

                  Neither of these justifications makes sense today. Almost all crimes formerly punishable by death no longer are or can be. See, e.g., Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). And while in earlier times "the gulf between the felonies and the minor offences was broad and deep," 2 Pollock & Maitland 467, n. 3; Carroll v. United States, supra, 267 U.S., at 158, 45 S.Ct., at 287, today the distinction is minor and often arbitrary. Many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Wilgus, 22 Mich.L.Rev., at 572-573. These changes have undermined the concept, which was questionable to begin with, that use of deadly force against a fleeing felon is merely a speedier execution of someone who has already forfeited his life. They have also made the assumption that a "felon" is more dangerous than a misdemeanant untenable. Indeed, numerous misdemeanors involve conduct more dangerous than many felonies.12

        137

                  There is an additional reason why the common-law rule cannot be directly translated to the present day. The common-law rule developed at a time when weapons were rudimentary. Deadly force could be inflicted almost solely in a hand-to-hand struggle during which, necessarily, the safety

        139

        Page 15

        141

        of the arresting officer was at risk. Handguns were not carried by police officers until the latter half of the last century. L. Kennett & J. Anderson, The Gun in America 150-151 (1975). Only then did it become possible to use deadly force from a distance as a means of apprehension. As a practical matter, the use of deadly force under the standard articulation of the common-law rule has an altogether different meaning—and harsher consequences—now than in past centuries. See Wechsler & Michael, A Rationale for the Law of Homicide: I, 37 Colum.L.Rev. 701, 741 (1937).13

        143

                  One other aspect of the common-law rule bears emphasis. It forbids the use of deadly force to apprehend a misdemeanant, condemning such action as disproportionately severe. See Holloway v. Moser, 193 N.C., at 187, 136 S.E., at 376; State v. Smith, 127 Iowa, at 535, 103 N.W., at 945. See generally Annot., 83 A.L.R.3d 238 (1978).

        145

                  In short, though the common-law pedigree of Tennessee's rule is pure on its face, changes in the legal and technological context mean the rule is distorted almost beyond recognition when literally applied.

        147
        C
        149

                  In evaluating the reasonableness of police procedures under the Fourth Amendment, we have also looked to pre-

        151

        Page 16

        153

        vailing rules in individual jurisdictions. See, e.g., United States v. Watson, 423 U.S., at 421-422, 96 S.Ct., at 826-827. The rules in the States are varied. See generally Comment, 18 Ga.L.Rev. 137, 140-144 (1983). Some 19 States have codified the common-law rule,14 though in two of these the courts have significantly limited the statute.15 Four States, though without a relevant statute, apparently retain the common-law rule.16 Two States have adopted the Model Penal Code's

        155

        Page 17

        157

        provision verbatim.17 Eighteen others allow, in slightly varying language, the use of deadly force only if the suspect has committed a felony involving the use or threat of physical or deadly force, or is escaping with a deadly weapon, or is likely to endanger life or inflict serious physical injury if not arrested.18 Louisiana and Vermont, though without statutes or case law on point, do forbid the use of deadly force to prevent any but violent felonies.19 The remaining States either have no relevant statute or case law, or have positions that are unclear.20

        159

        Page 18

        161

                  It cannot be said that there is a constant or overwhelming trend away from the common-law rule. In recent years, some States have reviewed their laws and expressly rejected abandonment of the common-law rule.21 Nonetheless, the long-term movement has been away from the rule that deadly force may be used against any fleeing felon, and that remains the rule in less than half the States.

        163

                  This trend is more evident and impressive when viewed in light of the policies adopted by the police departments themselves. Overwhelmingly, these are more restrictive than the common-law rule. C. Milton, J. Halleck, J. Lardner, & G. Abrecht, Police Use of Deadly Force 45-46 (1977). The Federal Bureau of Investigation and the New York City Police Department, for example, both forbid the use of firearms except when necessary to prevent death or grievous bodily harm. Id., at 40-41; App. 83. For accreditation by the Commission on Accreditation for Law Enforcement Agencies, a department must restrict the use of deadly force to situations where "the officer reasonably believes that the action is in defense of human life . . . or in defense of any person in immediate danger of serious physical injury." Commission on Accreditation for Law Enforcement Agencies, Inc., Standards for Law Enforcement Agencies 1-2 (1983) (italics deleted). A 1974 study reported that the police department regulations in a majority of the large cities of the United States allowed the firing of a weapon only when a

        165

        Page 19

        167

        felon presented a threat of death or serious bodily harm. Boston Police Department, Planning & Research Division, The Use of Deadly Force by Boston Police Personnel (1974), cited in Mattis v. Schnarr, 547 F.2d 1007, 1016, n. 19 (CA8 1976), vacated as moot sub nom. Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977). Overall, only 7.5% of departmental and municipal policies explicitly permit the use of deadly force against any felon; 86.8% explicitly do not. K. Matulia, A Balance of Forces: A Report of the International Association of Chiefs of Police 161 (1982) (table). See also Record 1108-1368 (written policies of 44 departments). See generally W. Geller & K. Karales, Split-Second Decisions 33-42 (1981); Brief for Police Foundation et al. as Amici Curiae. In light of the rules adopted by those who must actually administer them, the older and fading common-law view is a dubious indicium of the constitutionality of the Tennessee statute now before us.

        169
        D
        171

                  Actual departmental policies are important for an additional reason. We would hesitate to declare a police practice of long standing "unreasonable" if doing so would severely hamper effective law enforcement. But the indications are to the contrary. There has been no suggestion that crime has worsened in any way in jurisdictions that have adopted, by legislation or departmental policy, rules similar to that announced today. Amici noted that "[a]fter extensive research and consideration, [they] have concluded that laws permitting police officers to use deadly force to apprehend unarmed, non-violent fleeing felony suspects actually do not protect citizens or law enforcement officers, do not deter crime or alleviate problems caused by crime, and do not improve the crime-fighting ability of law enforcement agencies." Id., at 11. The submission is that the obvious state interests in apprehension are not sufficiently served to warrant the use of lethal weapons against all fleeing felons. See supra, at 10-11, and n. 10.

        173

        Page 20

        175

                  Nor do we agree with petitioners and appellant that the rule we have adopted requires the police to make impossible, split-second evaluations of unknowable facts. See Brief for Petitioners 25; Brief for Appellant 11. We do not deny the practical difficulties of attempting to assess the suspect's dangerousness. However, similarly difficult judgments must be made by the police in equally uncertain circumstances. See, e.g., Terry v. Ohio, 392 U.S., at 20, 27, 88 S.Ct., at 1879, 1883. Nor is there any indication that in States that allow the use of deadly force only against dangerous suspects, see nn. 15, 17-19, supra, the standard has been difficult to apply or has led to a rash of litigation involving inappropriate second-guessing of police officers' split-second decisions. Moreover, the highly technical felony/misdemeanor distinction is equally, if not more, difficult to apply in the field. An officer is in no position to know, for example, the precise value of property stolen, or whether the crime was a first or second offense. Finally, as noted above, this claim must be viewed with suspicion in light of the similar self-imposed limitations of so many police departments.

        177
        IV
        179

                  The District Court concluded that Hymon was justified in shooting Garner because state law allows, and the Federal Constitution does not forbid, the use of deadly force to prevent the escape of a fleeing felony suspect if no alternative means of apprehension is available. See App. to Pet. for Cert. A9-A11, A38. This conclusion made a determination of Garner's apparent dangerousness unnecessary. The court did find, however, that Garner appeared to be unarmed, though Hymon could not be certain that was the case. Id., at A4, A23. See also App. 41, 56; Record 219. Restated in Fourth Amendment terms, this means Hymon had no articulable basis to think Garner was armed.

        181

                  In reversing, the Court of Appeals accepted the District Court's factual conclusions and held that "the facts, as found, did not justify the use of deadly force." 710 F.2d, at 246.

        183

        Page 21

        185

        We agree. Officer Hymon could not reasonably have believed that Garner—young, slight, and unarmed—posed any threat. Indeed, Hymon never attempted to justify his actions on any basis other than the need to prevent an escape. The District Court stated in passing that "[t]he facts of this case did not indicate to Officer Hymon that Garner was 'non-dangerous.' " App. to Pet. for Cert. A34. This conclusion is not explained, and seems to be based solely on the fact that Garner had broken into a house at night. However, the fact that Garner was a suspected burglar could not, without regard to the other circumstances, automatically justify the use of deadly force. Hymon did not have probable cause to believe that Garner, whom he correctly believed to be unarmed, posed any physical danger to himself or others.

        187

                  The dissent argues that the shooting was justified by the fact that Officer Hymon had probable cause to believe that Garner had committed a nighttime burglary. Post, at 29, 32. While we agree that burglary is a serious crime, we cannot agree that it is so dangerous as automatically to justify the use of deadly force. The FBI classifies burglary as a "property" rather than a "violent" crime. See Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States 1 (1984).22 Although the armed burglar would present a different situation, the fact that an unarmed suspect has broken into a dwelling at night does not automatically mean he is physically dangerous. This case demonstrates as much. See also Solem v. Helm, 463 U.S. 277, 296-297, and nn. 22-23, 103 S.Ct. 3001, 3012-3013, and nn. 22-23, 77 L.Ed.2d 637 (1983). In fact, the available statistics demonstrate that burglaries only rarely involve physical violence. During the 10-year period from 1973-1982, only 3.8% of all burglaries involved violent crime. Bureau of Justice Statistics, House-

        189

        Page 22

        191

        hold Burglary 4 (1985).23 See also T. Reppetto, Residential Crime 17, 105 (1974); Conklin & Bittner, Burglary in a Suburb, 11 Criminology 208, 214 (1973).

        193
        V
        195

                  We wish to make clear what our holding means in the context of this case. The complaint has been dismissed as to all the individual defendants. The State is a party only by virtue of 28 U.S.C. § 2403(b) and is not subject to liability. The possible liability of the remaining defendants—the Police Department and the city of Memphis—hinges on Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and is left for remand. We hold that the statute is invalid insofar as it purported to give Hymon the authority to act as he did. As for the policy of the Police Department, the absence of any discussion of this issue by the courts below, and the uncertain state of the record, preclude any consideration of its validity.

        197

                  The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.

        199

                  So ordered.

        201

                   Justice O'CONNOR, with whom THE CHIEF JUSTICE and Justice REHNQUIST join, dissenting.

        203

                  The Court today holds that the Fourth Amendment prohibits a police officer from using deadly force as a last resort to

        205

        Page 23

        207

        apprehend a criminal suspect who refuses to halt when fleeing the scene of a nighttime burglary. This conclusion rests on the majority's balancing of the interests of the suspect and the public interest in effective law enforcement. Ante, at 8. Notwithstanding the venerable common-law rule authorizing the use of deadly force if necessary to apprehend a fleeing felon, and continued acceptance of this rule by nearly half the States, ante, at 14, 16-17, the majority concludes that Tennessee's statute is unconstitutional inasmuch as it allows the use of such force to apprehend a burglary suspect who is not obviously armed or otherwise dangerous. Although the circumstances of this case are unquestionably tragic and unfortunate, our constitutional holdings must be sensitive both to the history of the Fourth Amendment and to the general implications of the Court's reasoning. By disregarding the serious and dangerous nature of residential burglaries and the longstanding practice of many States, the Court effectively creates a Fourth Amendment right allowing a burglary suspect to flee unimpeded from a police officer who has probable cause to arrest, who has ordered the suspect to halt, and who has no means short of firing his weapon to prevent escape. I do not believe that the Fourth Amendment supports such a right, and I accordingly dissent.

        209
        I
        211

                  The facts below warrant brief review because they highlight the difficult, split-second decisions police officers must make in these circumstances. Memphis Police Officers Elton Hymon and Leslie Wright responded to a late-night call that a burglary was in progress at a private residence. When the officers arrived at the scene, the caller said that "they" were breaking into the house next door. App. in No. 81-5605 (CA6), p. 207. The officers found the residence had been forcibly entered through a window and saw lights

        213

        Page 24

        215

        on inside the house. Officer Hymon testified that when he saw the broken window he realized "that something was wrong inside," id., at 656, but that he could not determine whether anyone—either a burglar or a member of the household—was within the residence. Id., at 209. As Officer Hymon walked behind the house, he heard a door slam. He saw Edward Eugene Garner run away from the house through the dark and cluttered backyard. Garner crouched next to a 6-foot-high fence. Officer Hymon thought Garner was an adult and was unsure whether Garner was armed because Hymon "had no idea what was in the hand [that he could not see] or what he might have had on his person." Id., at 658-659. In fact, Garner was 15 years old and unarmed. Hymon also did not know whether accomplices remained inside the house. Id., at 657. The officer identified himself as a police officer and ordered Garner to halt. Garner paused briefly and then sprang to the top of the fence. Believing that Garner would escape if he climbed over the fence, Hymon fired his revolver and mortally wounded the suspected burglar.

        217

                  Appellee-respondent, the deceased's father, filed a 42 U.S.C. § 1983 action in federal court against Hymon, the city of Memphis, and other defendants, for asserted violations of Garner's constitutional rights. The District Court for the Western District of Tennessee held that Officer Hymon's actions were justified by a Tennessee statute that authorizes a police officer to "use all the necessary means to effect the arrest," if "after notice of the intention to arrest the defendant, he either flee or forcibly resist." Tenn.Code Ann. § 40-7-108 (1982). As construed by the Tennessee courts, this statute allows the use of deadly force only if a police officer has probable cause to believe that a person has committed a felony, the officer warns the person that he intends to arrest him, and the officer reasonably believes that no means less than such force will prevent the escape. See, e.g., Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819

        219

        Page 25

        221

        (1938). The District Court held that the Tennessee statute is constitutional and that Hymon's actions as authorized by that statute did not violate Garner's constitutional rights. The Court of Appeals for the Sixth Circuit reversed on the grounds that the Tennessee statute "authorizing the killing of an unarmed, nonviolent fleeing felon by police in order to prevent escape" violates the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. 710 F.2d 240, 244 (1983).

        223

                  The Court affirms on the ground that application of the Tennessee statute to authorize Officer Hymon's use of deadly force constituted an unreasonable seizure in violation of the Fourth Amendment. The precise issue before the Court deserves emphasis, because both the decision below and the majority obscure what must be decided in this case. The issue is not the constitutional validity of the Tennessee statute on its face or as applied to some hypothetical set of facts. Instead, the issue is whether the use of deadly force by Officer Hymon under the circumstances of this case violated Garner's constitutional rights. Thus, the majority's assertion that a police officer who has probable cause to seize a suspect "may not always do so by killing him," ante, at 9, is unexceptionable but also of little relevance to the question presented here. The same is true of the rhetorically stirring statement that "[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable." Ante, at 11. The question we must address is whether the Constitution allows the use of such force to apprehend a suspect who resists arrest by attempting to flee the scene of a nighttime burglary of a residence.

        225
        II
        227

                  For purposes of Fourth Amendment analysis, I agree with the Court that Officer Hymon "seized" Garner by shooting him. Whether that seizure was reasonable and therefore permitted by the Fourth Amendment requires a careful bal-

        229

        Page 26

        231

        ancing of the important public interest in crime prevention and detection and the nature and quality of the intrusion upon legitimate interests of the individual. United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983). In striking this balance here, it is crucial to acknowledge that police use of deadly force to apprehend a fleeing criminal suspect falls within the "rubric of police conduct . . . necessarily [involving] swift action predicated upon the on-the-spot observations of the officer on the beat." Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). The clarity of hindsight cannot provide the standard for judging the reasonableness of police decisions made in uncertain and often dangerous circumstances. Moreover, I am far more reluctant than is the Court to conclude that the Fourth Amendment proscribes a police practice that was accepted at the time of the adoption of the Bill of Rights and has continued to receive the support of many state legislatures. Although the Court has recognized that the requirements of the Fourth Amendment must respond to the reality of social and technological change, fidelity to the notion of constitutional—as opposed to purely judicial—limits on governmental action requires us to impose a heavy burden on those who claim that practices accepted when the Fourth Amendment was adopted are now constitutionally impermissible. See, e.g., United States v. Watson, 423 U.S. 411, 416-421, 96 S.Ct. 820, 824-827, 46 L.Ed.2d 598 (1976); Carroll v. United States, 267 U.S. 132, 149-153, 45 S.Ct. 280, 283-285, 69 L.Ed. 543 (1925). Cf. United States v. Villamonte-Marquez, 462 U.S. 579, 585, 103 S.Ct. 2573, 2582, 77 L.Ed.2d 22 (1983) (noting "impressive historical pedigree" of statute challenged under Fourth Amendment).

        233

                  The public interest involved in the use of deadly force as a last resort to apprehend a fleeing burglary suspect relates primarily to the serious nature of the crime. Household burglaries not only represent the illegal entry into a person's home, but also "pos[e] real risk of serious harm to others." Solem v. Helm, 463 U.S. 277, 315-316, 103 S.Ct. 3001, 3023, 77 L.Ed.2d 637 (1983) (BURGER, C.J., dissenting). According to recent Department of Justice statistics, "[t]hree-fifths of all rapes in the home,

        235

        Page 27

        237

        three-fifths of all home robberies, and about a third of home aggravated and simple assaults are committed by burglars." Bureau of Justice Statistics Bulletin, Household Burglary 1 (January 1985). During the period 1973-1982, 2.8 million such violent crimes were committed in the course of burglaries. Ibid. Victims of a forcible intrusion into their home by a nighttime prowler will find little consolation in the majority's confident assertion that "burglaries only rarely involve physical violence." Ante, at 21. Moreover, even if a particular burglary, when viewed in retrospect, does not involve physical harm to others, the "harsh potentialities for violence" inherent in the forced entry into a home preclude characterization of the crime as "innocuous, inconsequential, minor, or 'nonviolent.' " Solem v. Helm, supra, at 316, 103 S.Ct., at 3023 (BURGER, C.J., dissenting). See also Restatement of Torts § 131, Comment g (1934) (burglary is among felonies that normally cause or threaten death or serious bodily harm); R. Perkins & R. Boyce, Criminal Law 1110 (3d ed. 1982) (burglary is dangerous felony that creates unreasonable risk of great personal harm).

        239

                  Because burglary is a serious and dangerous felony, the public interest in the prevention and detection of the crime is of compelling importance. Where a police officer has probable cause to arrest a suspected burglar, the use of deadly force as a last resort might well be the only means of apprehending the suspect. With respect to a particular burglary, subsequent investigation simply cannot represent a substitute for immediate apprehension of the criminal suspect at the scene. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Challenge of Crime in a Free Society 97 (1967). Indeed, the Captain of the Memphis Police Department testified that in his city, if apprehension is not immediate, it is likely that the suspect will not be caught. App. in No. 81-5605 (CA6), p. 334. Although some law enforcement agencies may choose to assume the risk that a criminal will remain at large, the

        241

        Page 28

        243

        Tennessee statute reflects a legislative determination that the use of deadly force in prescribed circumstances will serve generally to protect the public. Such statutes assist the police in apprehending suspected perpetrators of serious crimes and provide notice that a lawful police order to stop and submit to arrest may not be ignored with impunity. See, e.g., Wiley v. Memphis Police Department, 548 F.2d 1247, 1252-1253 (CA6), cert. denied, 434 U.S. 822, 98 S.Ct. 65, 54 L.Ed.2d 78 (1977); Jones v. Marshall, 528 F.2d 132, 142 (CA2 1975).

        245

                  The Court unconvincingly dismisses the general deterrence effects by stating that "the presently available evidence does not support [the] thesis" that the threat of force discourages escape and that "there is a substantial basis for doubting that the use of such force is an essential attribute to the arrest power in all felony cases." Ante, at 10, 11. There is no question that the effectiveness of police use of deadly force is arguable and that many States or individual police departments have decided not to authorize it in circumstances similar to those presented here. But it should go without saying that the effectiveness or popularity of a particular police practice does not determine its constitutionality. Cf. Spaziano v. Florida, 468 U.S. 447, 464, 104 S.Ct. 3154, 3164, 82 L.Ed.2d 340 (1984) ("The Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws"). Moreover, the fact that police conduct pursuant to a state statute is challenged on constitutional grounds does not impose a burden on the State to produce social science statistics or to dispel any possible doubts about the necessity of the conduct. This observation, I believe, has particular force where the challenged practice both predates enactment of the Bill of Rights and continues to be accepted by a substantial number of the States.

        247

                  Against the strong public interests justifying the conduct at issue here must be weighed the individual interests implicated in the use of deadly force by police officers. The

        249

        Page 29

        251

        majority declares that "[t]he suspect's fundamental interest in his own life need not be elaborated upon." Ante, at 9. This blithe assertion hardly provides an adequate substitute for the majority's failure to acknowledge the distinctive manner in which the suspect's interest in his life is even exposed to risk. For purposes of this case, we must recall that the police officer, in the course of investigating a nighttime burglary, had reasonable cause to arrest the suspect and ordered him to halt. The officer's use of force resulted because the suspected burglar refused to heed this command and the officer reasonably believed that there was no means short of firing his weapon to apprehend the suspect. Without questioning the importance of a person's interest in his life, I do not think this interest encompasses a right to flee unimpeded from the scene of a burglary. Cf. Payton v. New York, 445 U.S. 573, 617, n. 14, 100 S.Ct. 1371, 1395, n. 14, 63 L.Ed.2d 639 (1980) (WHITE, J., dissenting) ("[T]he policeman's hands should not be tied merely because of the possibility that the suspect will fail to cooperate with legitimate actions by law enforcement personnel"). The legitimate interests of the suspect in these circumstances are adequately accommodated by the Tennessee statute: to avoid the use of deadly force and the consequent risk to his life, the suspect need merely obey the valid order to halt.

        253

                  A proper balancing of the interests involved suggests that use of deadly force as a last resort to apprehend a criminal suspect fleeing from the scene of a nighttime burglary is not unreasonable within the meaning of the Fourth Amendment. Admittedly, the events giving rise to this case are in retrospect deeply regrettable. No one can view the death of an unarmed and apparently nonviolent 15-year-old without sorrow, much less disapproval. Nonetheless, the reasonableness of Officer Hymon's conduct for purposes of the Fourth Amendment cannot be evaluated by what later appears to have been a preferable course of police action. The officer pursued a suspect in the darkened backyard of a house that from all indications had just been burglarized. The

        255

        Page 30

        257

        police officer was not certain whether the suspect was alone or unarmed; nor did he know what had transpired inside the house. He ordered the suspect to halt, and when the suspect refused to obey and attempted to flee into the night, the officer fired his weapon to prevent escape. The reasonableness of this action for purposes of the Fourth Amendment is not determined by the unfortunate nature of this particular case; instead, the question is whether it is constitutionally impermissible for police officers, as a last resort, to shoot a burglary suspect fleeing the scene of the crime.

        259

                  Because I reject the Fourth Amendment reasoning of the majority and the Court of Appeals, I briefly note that no other constitutional provision supports the decision below. In addition to his Fourth Amendment claim, appellee-respondent also alleged violations of due process, the Sixth Amendment right to trial by jury, and the Eighth Amendment proscription of cruel and unusual punishment. These arguments were rejected by the District Court and, except for the due process claim, not addressed by the Court of Appeals. With respect to due process, the Court of Appeals reasoned that statutes affecting the fundamental interest in life must be "narrowly drawn to express only the legitimate state interests at stake." 710 F.2d, at 245. The Court of Appeals concluded that a statute allowing police use of deadly force is narrowly drawn and therefore constitutional only if the use of such force is limited to situations in which the suspect poses an immediate threat to others. Id., at 246-247. Whatever the validity of Tennessee's statute in other contexts, I cannot agree that its application in this case resulted in a deprivation "without due process of law." Cf. Baker v. McCollan, 443 U.S. 137, 144-145, 99 S.Ct. 2689, 2694-2695, 61 L.Ed.2d 433 (1979). Nor do I believe that a criminal suspect who is shot while trying to avoid apprehension has a cognizable claim of a deprivation of his Sixth Amendment right to trial by jury. See Cunningham v. Ellington, 323 F.Supp. 1072, 1075-1076 (WD Tenn.1971) (three-judge court). Finally, because there is no indication that the use

        261

        Page 31

        263

        of deadly force was intended to punish rather than to capture the suspect, there is no valid claim under the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 538-539, 99 S.Ct. 1861, 1873-1874, 60 L.Ed.2d 447 (1979). Accordingly, I conclude that the District Court properly entered judgment against appellee-respondent, and I would reverse the decision of the Court of Appeals.

        265
        III
        267

                  Even if I agreed that the Fourth Amendment was violated under the circumstances of this case, I would be unable to join the Court's opinion. The Court holds that deadly force may be used only if the suspect "threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm." Ante, at 11. The Court ignores the more general implications of its reasoning. Relying on the Fourth Amendment, the majority asserts that it is constitutionally unreasonable to use deadly force against fleeing criminal suspects who do not appear to pose a threat of serious physical harm to others. Ibid. By declining to limit its holding to the use of firearms, the Court unnecessarily implies that the Fourth Amendment constrains the use of any police practice that is potentially lethal, no matter how remote the risk. Cf. Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).

        269

                  Although it is unclear from the language of the opinion, I assume that the majority intends the word "use" to include only those circumstances in which the suspect is actually apprehended. Absent apprehension of the suspect, there is no "seizure" for Fourth Amendment purposes. I doubt that the Court intends to allow criminal suspects who successfully escape to return later with § 1983 claims against officers who used, albeit unsuccessfully, deadly force in their futile attempt to capture the fleeing suspect. The Court's opinion, despite its broad language, actually decides only that the

        271

        Page 32

        273

        shooting of a fleeing burglary suspect who was in fact neither armed nor dangerous can support a § 1983 action.

        275

                  The Court's silence on critical factors in the decision to use deadly force simply invites second-guessing of difficult police decisions that must be made quickly in the most trying of circumstances. Cf. Payton v. New York, 445 U.S., at 619, 100 S.Ct., at 1396 (WHITE, J., dissenting). Police are given no guidance for determining which objects, among an array of potentially lethal weapons ranging from guns to knives to baseball bats to rope, will justify the use of deadly force. The Court also declines to outline the additional factors necessary to provide "probable cause" for believing that a suspect "poses a significant threat of death or serious physical injury," ante, at 3, when the officer has probable cause to arrest and the suspect refuses to obey an order to halt. But even if it were appropriate in this case to limit the use of deadly force to that ambiguous class of suspects, I believe the class should include nighttime residential burglars who resist arrest by attempting to flee the scene of the crime. We can expect an escalating volume of litigation as the lower courts struggle to determine if a police officer's split-second decision to shoot was justified by the danger posed by a particular object and other facts related to the crime. Thus, the majority opinion portends a burgeoning area of Fourth Amendment doctrine concerning the circumstances in which police officers can reasonably employ deadly force.

        277
        IV
        279

                  The Court's opinion sweeps broadly to adopt an entirely new standard for the constitutionality of the use of deadly force to apprehend fleeing felons. Thus, the Court "lightly brushe[s] aside," Payton v. New York, supra, at 600, 100 S.Ct., at 1387, a long-standing police practice that predates the Fourth Amendment and continues to receive the approval of nearly half of the state legislatures. I cannot accept the majority's creation of a constitutional right to flight for burglary sus-

        281

        Page 33

        283

        pects seeking to avoid capture at the scene of the crime. Whatever the constitutional limits on police use of deadly force in order to apprehend a fleeing felon, I do not believe they are exceeded in a case in which a police officer has probable cause to arrest a suspect at the scene of a residential burglary, orders the suspect to halt, and then fires his weapon as a last resort to prevent the suspect's escape into the night. I respectfully dissent.

        285

        1. The owner of the house testified that no lights were on in the house, but that a back door light was on. Record 160. Officer Hymon, though uncertain, stated in his deposition that there were lights on in the house. Id., at 209.

        287

        2. In fact, Garner, an eighth-grader, was 15. He was 5' 4" tall and weighed somewhere around 100 or 110 pounds. App. to Pet. for Cert. A5.

        289

        3. When asked at trial why he fired, Hymon stated:

        291

        "Well, first of all it was apparent to me from the little bit that I knew about the area at the time that he was going to get away because, number 1, I couldn't get to him. My partner then couldn't find where he was because, you know, he was late coming around. He didn't know where I was talking about. I couldn't get to him because of the fence here, I couldn't have jumped this fence and come up, consequently jumped this fence and caught him before he got away because he was already up on the fence, just one leap and he was already over the fence, and so there is no way that I could have caught him." App. 52.

        293

        He also stated that the area beyond the fence was dark, that he could not have gotten over the fence easily because he was carrying a lot of equipment and wearing heavy boots, and that Garner, being younger and more energetic, could have outrun him. Id., at 53-54.

        295

        4. Garner had rummaged through one room in the house, in which, in the words of the owner, "[a]ll the stuff was out on the floors, all the drawers was pulled out, and stuff was scattered all over." Id., at 34. The owner testified that his valuables were untouched but that, in addition to the purse and the 10 dollars, one of his wife's rings was missing. The ring was not recovered. Id.., at 34-35.

        297

        5. Although the statute does not say so explicitly, Tennessee law forbids the use of deadly force in the arrest of a misdemeanant. See Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819 (1938).

        299

        6. "The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated. . . ." U.S. Const., Amdt. 4.

        301

        7. The Court of Appeals concluded that the rule set out in the Model Penal Code "accurately states Fourth Amendment limitations on the use of deadly force against fleeing felons." 710 F.2d, at 247. The relevant portion of the Model Penal Code provides:

        303

        "The use of deadly force is not justifiable . . . unless (i) the arrest is for a felony; and (ii) the person effecting the arrest is authorized to act as a peace officer; or is assisting a person whom he believes to be authorized to act as a peace officer, and (iii) the actor believes that the force employed creates no substantial risk of injury to innocent persons; and (iv) the actor believes that (1) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or (2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed." American Law Institute, Model Penal Code § 3.07(2)(b) (Proposed Official Draft 1962).

        305

        The court also found that "[a]n analysis of the facts of this case under the Due Process Clause" required the same result, because the statute was not narrowly drawn to further a compelling state interest. 710 F.2d, at 246-247. The court considered the generalized interest in effective law enforcement sufficiently compelling only when the suspect is dangerous. Finally, the court held, relying on Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), that the city was not immune.

        307

        8. The dissent emphasizes that subsequent investigation cannot replace immediate apprehension. We recognize that this is so, see n. 13, infra; indeed, that is the reason why there is any dispute. If subsequent arrest were assured, no one would argue that use of deadly force was justified. Thus, we proceed on the assumption that subsequent arrest is not likely. Nonetheless, it should be remembered that failure to apprehend at the scene does not necessarily mean that the suspect will never be caught.

        309

        In lamenting the inadequacy of later investigation, the dissent relies on the report of the President's Commission on Law Enforcement and Administration of Justice. It is worth noting that, notwithstanding its awareness of this problem, the Commission itself proposed a policy for use of deadly force arguably even more stringent than the formulation we adopt today. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Police 189 (1967). The Commission proposed that deadly force be used only to apprehend "perpetrators who, in the course of their crime threatened the use of deadly force, or if the officer believes there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if his apprehension is delayed." In addition, the officer would have "to know, as a virtual certainty, that the suspect committed an offense for which the use of deadly force is permissible." Ibid.

        311

        9. We note that the usual manner of deterring illegal conduct through punishment—has been largely ignored in connection with flight from arrest. Arkansas, for example, specifically excepts flight from arrest from the offense of "obstruction of governmental operations." The commentary notes that this "reflects the basic policy judgment that, absent the use of force or violence, a mere attempt to avoid apprehension by a law enforcement officer does not give rise to an independent offense." Ark.Stat.Ann. § 41-2802(3)(a) (1977) and commentary. In the few States that do outlaw flight from an arresting officer, the crime is only a misdemeanor. See, e.g., Ind.Code § 35-44-3-3 (1982). Even forceful resistance, though generally a separate offense, is classified as a misdemeanor. E.g., Ill.Rev.Stat., ch. 38, ¶ 31-1 (1984); Mont.Code Ann. § 45-7-301 (1984); N.H.Rev.Stat.Ann. § 642:2 (Supp.1983); Ore.Rev.Stat. § 162.315 (1983).

        313

        This lenient approach does avoid the anomaly of automatically transforming every fleeing misdemeanant into a fleeing felon subject, under the common-law rule, to apprehension by deadly force—solely by virtue of his flight. However, it is in real tension with the harsh consequences of flight in cases where deadly force is employed. For example, Tennessee does not outlaw fleeing from arrest. The Memphis City Code does, § 22-34.1 (Supp.17, 1971), subjecting the offender to a maximum fine of $50, § 1-8 (1967). Thus, Garner's attempted escape subjected him to (a) a $50 fine, and (b) being shot.

        315

        10. See Sherman, Reducing Police Gun Use, in Control in the Police Organization 98, 120-123 (M. Punch ed. 1983); Fyfe, Observations on Police Deadly Force, 27 Crime & Delinquency 376, 378-381 (1981); W. Geller & K. Karales, Split-Second Decisions 67 (1981); App. 84 (affidavit of William Bracey, Chief of Patrol, New York City Police Department). See generally Brief for Police Foundation et al. as Amici Curiae.

        317

        11. The roots of the concept of a "felony" lie not in capital punishment but in forfeiture. 2 F. Pollock & F. Maitland, The History of English Law 465 (2d ed. 1909) (hereinafter Pollock & Maitland). Not all felonies were always punishable by death. See id., at 466-467, n. 3. Nonetheless, the link was profound. Blackstone was able to write: "The idea of felony is indeed so generally connected with that of capital punishment, that we find it hard to separate them; and to this usage the interpretations of the law do now conform. And therefore if a statute makes any new offence felony, the law implies that is shall be punished with death, viz. by hanging, as well as with forfeiture. . . ." 4 W. Blackstone, Commentaries *98. See also R. Perkins & R. Boyce, Criminal Law 14-15 (3d ed. 1982); 2 Pollock & Maitland 511.

        319

        12. White-collar crime, for example, poses a less significant physical threat than, say, drunken driving. See Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); id., at 755, 104 S.Ct., at 2100 (BLACKMUN, J., concurring). See Model Penal Code Comment, at 57.

        321

        13. It has been argued that sophisticated techniques of apprehension and increased communication between the police in different jurisdictions have made it more likely that an escapee will be caught than was once the case, and that this change has also reduced the "reasonableness" of the use of deadly force to prevent escape. E.g., Sherman, Execution Without Trial: Police Homicide and the Constitution, 33 Vand.L.Rev. 71, 76 (1980). We are unaware of any data that would permit sensible evaluation of this claim. Current arrest rates are sufficiently low, however, that we have some doubt whether in past centuries the failure to arrest at the scene meant that the police had missed their only chance in a way that is not presently the case. In 1983, 21% of the offenses in the Federal Bureau of Investigation crime index were cleared by arrest. Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States 159 (1984). The clearance rate for burglary was 15%. Ibid.

        323

        14. Ala.Code § 13A-3-27 (1982); Ark.Stat.Ann. § 41-510 (1977); Cal.Penal Code Ann. § 196 (West 1970); Conn.Gen.Stat. § 53a-22 (1972); Fla.Stat. § 776.05 (1983); Idaho Code § 19-610 (1979); Ind.Code § 35-41-3-3 (1982); Kan.Stat.Ann. § 21-3215 (1981); Miss.Code Ann. § 97-3-15(d) (Supp.1984); Mo.Rev.Stat. § 563.046 (1979); Nev.Rev.Stat. § 200.140 (1983); N.M.Stat.Ann. § 30-2-6 (1984); Okla.Stat., Tit. 21, § 732 (1981); R.I.Gen.Laws § 12-7-9 (1981); S.D. Codified Laws §§ 22-16-32, 22-16-33 (1979); Tenn.Code Ann. § 40-7-108 (1982); Wash.Rev.Code § 9A.16.040(3) (1977). Oregon limits use of deadly force to violent felons, but also allows its use against any felon if "necessary." Ore.Rev.Stat. § 161.239 (1983). Wisconsin's statute is ambiguous, but should probably be added to this list. Wis.Stat. § 939.45(4) (1981-1982) (officer may use force necessary for "a reasonable accomplishment of a lawful arrest"). But see Clark v. Ziedonis, 368 F.Supp. 544 (ED Wis.1973), aff'd on other grounds, 513 F.2d 79 (CA7 1975).

        325

        15. In California, the police may use deadly force to arrest only if the crime for which the arrest is sought was "a forcible and atrocious one which threatens death or serious bodily harm," or there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if apprehension is delayed. Kortum v. Alkire, 69 Cal.App.3d 325, 333, 138 Cal.Rptr. 26, 30-31 (1977). See also People v. Ceballos, 12 Cal.3d 470, 476-484, 116 Cal.Rptr. 233, 237-242, 526 P.2d 241, 245-250 (1974); Long Beach Police Officers Assn. v. Long Beach, 61 Cal.App.3d 364, 373-374, 132 Cal.Rptr. 348, 353-354 (1976). In Indiana, deadly force may be used only to prevent injury, the imminent danger of injury or force, or the threat of force. It is not permitted simply to prevent escape. Rose v. State, 431 N.E.2d 521 (Ind.App.1982).

        327

        16. These are Michigan, Ohio, Virginia, and West Virginia. Werner v. Hartfelder, 113 Mich.App. 747, 318 N.W.2d 825 (1982); State v. Foster, 60 Ohio Misc. 46, 59-66, 396 N.E.2d 246, 255-258 (Com.Pl.1979) (citing cases); Berry v. Hamman, 203 Va. 596, 125 S.E.2d 851 (1962); Thompson v. Norfolk & W.R. Co., 116 W.Va. 705, 711-712, 182 S.E. 880, 883-884 (1935).

        329

        17. Haw.Rev.Stat. § 703-307 (1976); Neb.Rev.Stat. § 28-1412 (1979). Massachusetts probably belongs in this category. Though it once rejected distinctions between felonies, Uraneck v. Lima, 359 Mass. 749, 750, 269 N.E.2d 670, 671 (1971), it has since adopted the Model Penal Code limitations with regard to private citizens, Commonwealth v. Klein, 372 Mass. 823, 363 N.E.2d 1313 (1977), and seems to have extended that decision to police officers, Julian v. Randazzo, 380 Mass. 391, 403 N.E.2d 931 (1980).

        331

        18. Alaska Stat.Ann. § 11.81.370(a) (1983); Ariz.Rev.Stat.Ann. § 13-410 (1978); Colo.Rev.Stat. § 18-1-707 (1978); Del.Code Ann., Tit. 11, § 467 (1979) (felony involving physical force and a substantial risk that the suspect will cause death or serious bodily injury or will never be recaptured); Ga.Code § 16-3-21(a) (1984); Ill.Rev.Stat., ch. 38, ¶ 7-5 (1984); Iowa Code § 804.8 (1983) (suspect has used or threatened deadly force in commission of a felony, or would use deadly force if not caught); Ky.Rev.Stat. § 503.090 (1984) (suspect committed felony involving use or threat of physical force likely to cause death or serious injury, and is likely to endanger life unless apprehended without delay); Me.Rev.Stat.Ann., Tit. 17-A, § 107 (1983) (commentary notes that deadly force may be used only "where the person to be arrested poses a threat to human life"); Minn.Stat. § 609.066 (1984); N.H.Rev.Stat.Ann. § 627:5(II) (Supp.1983); N.J.Stat.Ann. § 2C-3-7 (West 1982); N.Y.Penal Law § 35.30 (McKinney Supp. 1984-1985); N.C.Gen.Stat. § 15A-401 (1983); N.D.Cent.Code § 12.1-05-07.2.d (1976); 18 Pa.Cons.Stat. § 508 (1982); Tex.Penal Code Ann. § 9.51(c) (1974); Utah Code Ann. § 76-2-404 (1978).

        333

        19. See La.Rev.Stat.Ann. § 14:20(2) (West 1974); Vt.Stat.Ann., Tit. 13, § 2305 (1974 and Supp.1984). A Federal District Court has interpreted the Louisiana statute to limit the use of deadly force against fleeing suspects to situations where "life itself is endangered or great bodily harm is threatened." Sauls v. Hutto, 304 F.Supp. 124, 132 (ED La.1969).

        335

        20. These are Maryland, Montana, South Carolina, and Wyoming. A Maryland appellate court has indicated, however, that deadly force may not be used against a felon who "was in the process of fleeing and, at the time, presented no immediate danger to . . . anyone. . . ." Giant Food, Inc. v. Scherry, 51 Md.App. 586, 589, 596, 444 A.2d 483, 486, 489 (1982).

        337

        21. In adopting its current statute in 1979, for example, Alabama expressly chose the common-law rule over more restrictive provisions. Ala.Code 13A-3-27, Commentary, pp. 67-68 (1982). Missouri likewise considered but rejected a proposal akin to the Model Penal Code rule. See Mattis v. Schnarr, 547 F.2d 1007, 1022 (CA8 1976) (Gibson, C.J., dissenting), vacated as moot sub nom. Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739 52 L.Ed.2d 219 (1977). Idaho, whose current statute codifies the common-law rule, adopted the Model Penal Code in 1971, but abandoned it in 1972.

        339

        22. In a recent report, the Department of Corrections of the District of Columbia also noted that "there is nothing inherently dangerous or violent about the offense," which is a crime against property. D.C. Department of Corrections, Prisoner Screening Project 2 (1985).

        341

        23. The dissent points out that three-fifths of all rapes in the home, three-fifths of all home robberies, and about a third of home assaults are committed by burglars. Post, at 26-27. These figures mean only that if one knows that a suspect committed a rape in the home, there is a good chance that the suspect is also a burglar. That has nothing to do with the question here, which is whether the fact that someone has committed a burglary indicates that he has committed, or might commit, a violent crime.

        343

        The dissent also points out that this 3.8% adds up to 2.8 million violent crimes over a 10-year period, as if to imply that today's holding will let loose 2.8 million violent burglars. The relevant universe is, of course, far smaller. At issue is only that tiny fraction of cases where violence has taken place and an officer who has no other means of apprehending the suspect is unaware of its occurrence.

      • 6.1.3 Robert M. Cover — "Violence and the Word"

      • 6.1.4 Michelle Alexander - The New Jim Crow

      • 6.1.5 Missouri v. Wilson: Grand Jury Testimony of Darren Wilson (Pp 197-239)

        read just pages 197-239
    • 6.2 II. Elements of Just Punishment

      • 6.2.1 II.A. Legality

        It seems commonsensical that for criminal punishment to be just and legal, the activity punished must have been made illegal.

        However, legality is a more complex subject than it seems, as the cases below illustrate. Legislatures and courts struggle to define and interpret criminal law, and the roles and relationships between these institutions in determining what is criminal have evolved over time. Consider the strengths and weaknesses, advantages and disadvantages of courts and of legislatures in defining particular crimes — a topic you have undoubtedly encountered throughout your 1L year.

        Additionally, giving people notice of criminal proscription underpins the idea of legality. Consider the issue of notice. Given the limited knowledge that most people have of the law, can they be said to have actual notice of what conduct is criminal? And should this matter? As you will see, courts sometimes invalidate convictions due to lack of notice, such as when a statute is unconstitutionally vague. Given that most people don’t read criminal statutes, why do courts go to such lengths to uphold the principle of notice?

        • 6.2.1.1 Commonwealth v. Mochan

          1
          177 Pa. Superior Ct. 454 (1955)
          2
          Commonwealth
          v.
          Mochan, Appellant.
          3

          Superior Court of Pennsylvania.

          4
          Argued November 8, 1954.
          5
          January 14, 1955.
          6

           

          7

          [455] Before RHODES, P.J., HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.

          8

          Edward A. Schultz, with him H. Turner Frost and Seif, Schultz & Frost, for appellant.

          9

          Albert A. Fiok, Assistant District Attorney, with him James F. Malone, Jr., District Attorney, for appellee.

          10

          OPINION BY HIRT, J., January 14, 1955:

          11

          One indictment (Bill 230), before us in the present appeals, charged that the defendant on May 4, 1953 "devising, contriving and intending the morals and [456] manners of the good citizens of this Commonwealth then and there being, to debauch and corrupt, and further devising and intending to harass, embarrass and villify divers citizens of this Commonwealth, and particularly one Louise Zivkovich and the members of the family of her the said Louise Zivkovich . . . unlawfully, wickedly and maliciously did then and there on the said days and dates aforesaid, make numerous telephone calls to the dwelling house of the said Louise Zivkovich at all times of the day and night, in which said telephone calls and conversations resulting therefrom the said Michael Mochan did wickedly and maliciously refer to the said Louise Zivkovich as a lewd, immoral and lascivious woman of an indecent and lewd character, and other scurrilous approbrious, filthy, disgusting and indecent language and talk and did then and there use in said telephone calls and conversations resulting therefrom, not only with the said Louise Zivkovich as aforesaid but with other members of the family of the said Louise Zivkovich then and there residing and then and there answering said telephone calls aforesaid intending as aforesaid to blacken the character and reputation of the said Louise Zivkovich and to infer that the said Louise Zivkovich was a woman of ill repute and ill fame, and intending as aforesaid to harass, embarrass and villify the said Louise Zivkovich and other members of her household as aforesaid, to the great damage, injury and oppression of the said Louise Zivkovich and other good citizens of this Commonwealth to the evil example of all other in like case offending, and against the peace and dignity of the Commonwealth of Pennsylvania." A second indictment (Bill 231), in the same language, charged a like offense committed by defendant on another date. Defendant was tried before a judge without a jury and was convicted on both charges and was [457] sentenced. He has appealed from the refusal by the court en banc of his motions in arrest of judgment, on the ground advanced by him that the conduct charged in the indictments, concededly not a criminal offense in this State by any statute, does not constitute a misdemeanor at common law. In a number of States and especially in the common law State of Pennsylvania the common law of England, as to crimes, is in force except in so far as it has been abrogated by statute. 11 Am. Jur., Common Law, § 4; 22 C.J.S., Criminal Law, § 19. The indictments in these cases by their language, clearly purported to charge a common law crime not included in our Penal Code or elsewhere in our statutory law.

          12

          It is established by the testimony that the defendant over a period of more than one month early in 1953, on numerous occasions and on the specific dates laid in the indictments, telephoned one Louise Zivkovich, a stranger to him and a married woman of the highest character and repute. He called as often as three times each week and at any hour of the day or night. His language on these calls was obscene, lewd and filthy. He not only suggested intercourse with her but talked of sodomy as well, in the loathsome language of that criminal act, on a number of occasions. The calls were coming in from a four-party line. Through cooperation with the telephone company, the defendant was finally located and was arrested by the police at the telephone after the completion of his last call. After his arrest bearing upon the question of his identification as the one who made the calls, Mrs. Zivkovich recognized his voice, in a telephone conversation with him which was set up by the police.

          13

          It is of little importance that there is no precedent in our reports which decides the precise question here involved. The test is not whether precedents can be [458] found in the books but whether the alleged crimes could have been prosecuted and the offenders punished under the common law. Commonwealth v. McHale, 97 Pa. 397, 408. In Commonwealth v. Miller, 94 Pa. Superior Ct. 499, 507, the controlling principles are thus stated: "The common law is sufficiently broad to punish as a misdemeanor, although there may be no exact precedent, any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer, as in the case of acts which injuriously affect public morality, or obstruct, or pervert public justice, or the administration of government: 16 Corpus Juris, Sec. 23, page 65, citing Republica v. Teischer, 1 Dallas 335; Com. v. Sharpless, 2 S. & R. 91, and Barker v. Com., 19 Pa. 412." Cf. Com. of Penna. v. DeGrange, 97 Pa. Superior Ct. 181, in which it is said: "`Whatever openly outrages decency and is injurious to public morals is a misdemeanor at common law': Russell on Crimes and Misdemeanors, 8th Ed., Vol. 1, p. 10; 4 Blackstone's Commentaries 65, note." Any act is indictable at common law which from its nature scandalously affects the morals or health of the community. 1 Wharton Criminal Law, 12 Ed., § 23. Thus in Barker et al. v. Commonwealth, 19 Pa. 412, a common law conviction based upon open obscenity was affirmed. Cf. Sadler, Criminal & Penal Proc., § 281. And in Commonwealth v. Glenny, 54 D. & C. 633, in a well considered opinion it was held that an indictment charging that the defendant took indecent liberties tending to debauch the morals of a male victim adequately set forth a common law offense. And as early as Updegraph v. Commonwealth, 11 S. & R. 393, it was held that Christianity is a part of the common law and maliciously to vilify the Christian religion is an indictable offense.

          14

          [459] To endeavor merely to persuade a married woman to commit adultery is not indictable. Smith v. Commonwealth, 54 Pa. 209. The present defendant's criminal intent was evidenced by a number of overt acts beyond the mere oral solicitation of adultery. The vile and disgusting suggestions of sodomy alone and the otherwise persistent lewd, immoral and filthy language used by the defendant, take these cases out of the principle of the Smith case. Moreover potentially at least, defendant's acts injuriously affected public morality. The operator or any one on defendant's four-party telephone line could have listened in on the conversations, and at least two other persons in Mrs. Zivkovich's household heard some of defendant's immoral and obscene language over the telephone.

          15

          The name "Immoral Practices and Conduct" was ascribed to the offense and was endorsed on the indictments by the District Attorney. Whether the endorsement appropriately or adequately names the offense is unimportant (Com. of Penna. v. DeGrange, supra, p. 185); the factual charges in the body of the indictments identify the offense as a common law misdemeanor and the testimony established the guilt of the defendant.

          16

          Judgments and sentences affirmed.

          17

          DISSENTING OPINION BY WOODSIDE, J.:

          18

          Not unmindful of the reprehensible conduct of the appellant, I nevertheless cannot agree with the majority that what he did was a crime punishable under the laws of this Commonwealth.

          19

          The majority is declaring something to be a crime which was never before known to be a crime in this Commonwealth. They have done this by the application [460] of such general principles as "it is a crime to do anything which injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer;" and "whatever openly outrages decency and is injurious to public morals is a misdemeanor."

          20

          Not only have they declared it to be a crime to do an act "injuriously affecting public morality," but they have declared it to be a crime to do any act which has a "potentially" injurious effect on public morality.

          21

          Under the division of powers in our constitution it is for the legislature to determine what "injures or tends to injure the public."

          22

          One of the most important functions of a legislature is to determine what acts "require the state to interfere and punish the wrongdoer." There is no reason for the legislature to enact any criminal laws if the courts delegate to themselves the power to apply such general principles as are here applied to whatever conduct may seem to the courts to be injurious to the public.

          23

          There is no doubt that the common law is a part of the law of this Commonwealth, and we punish many acts under the common law. But after nearly two hundred years of constitutional government in which the legislature and not the courts have been charged by the people with the responsibility of deciding which acts do and which do not injure the public to the extent which requires punishment, it seems to me we are making an unwarranted invasion of the legislative field when we arrogate that responsibility to ourselves by declaring now, for the first time, that certain acts are a crime.

          24

          When the legislature invades either the judicial or the executive fields, or the executive invades either the judicial or legislative fields, the courts stand ready to [461] stop them. But in matters of this type there is nothing to prevent our invasion of the legislative field except our own self restraint. There are many examples of how carefully the courts, with admirable self restraint, have fenced themselves in so they would not romp through the fields of the other branches of government. This case is not such an example.

          25

          Until the legislature says that what the defendant did is a crime, I think the courts should not declare it to be such.

          26

          I would therefore reverse the lower court and discharge the appellant.

          27

          GUNTHER, J. joins in this dissent.

        • 6.2.1.2 McBoyle v. United States

          1
          283 U.S. 25 (1931)
          2
          McBOYLE
          v.
          UNITED STATES.
          3
          No. 552.
          4

          Supreme Court of United States.

          5
          Argued February 26, 27, 1931.
          6
          Decided March 9, 1931.
          7

          8

          CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT.

          9

          Mr. Harry F. Brown for petitioner.

          10

          Mr. Claude R. Branch, Special Assistant to the Attorney General, with whom Solicitor General Thacher, Assistant Attorney General Dodds and Messrs. Harry S. Ridgely and W. Marvin Smith were on the brief, for the United States.

          11

          MR. JUSTICE HOLMES delivered the opinion of the Court.

          12

          The petitioner was convicted of transporting from Ottawa, Illinois, to Guymon, Oklahoma, an airplane that he knew to have been stolen, and was sentenced to serve three years' imprisonment and to pay a fine of $2,000. The judgment was affirmed by the Circuit Court of Appeals for the Tenth Circuit. 43 F. (2d) 273. A writ of certiorari was granted by this Court on the question whether the National Motor Vehicle Theft Act applies to aircraft. [26] Act of October 29, 1919, c. 89, 41 Stat. 324; U.S. Code, Title 18, § 408. That Act provides: "Sec. 2. That when used in this Act: (a) The term 'motor vehicle' shall include an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails; . . . Sec. 3. That whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000, or by imprisonment of not more than five years, or both."

          13

          Section 2 defines the motor vehicles of which the transportation in interstate commerce is punished in § 3. The question is the meaning of the word 'vehicle' in the phrase "any other self-propelled vehicle not designed for running on rails." No doubt etymologically it is possible to use the word to signify a conveyance working on land, water or air, and sometimes legislation extends the use in that direction, e.g., land and air, water being separately provided for, in the Tariff Act, September 22, 1922, c. 356, § 401 (b), 42 Stat. 858, 948. But in everyday speech 'vehicle' calls up the picture of a thing moving on land. Thus in Rev. Stats. § 4, intended, the Government suggests, rather to enlarge than to restrict the definition, vehicle includes every contrivance capable of being used "as a means of transportation on land." And this is repeated, expressly excluding aircraft, in the Tariff Act, June 17, 1930, c. 997, § 401 (b); 46 Stat. 590, 708. So here, the phrase under discussion calls up the popular picture. For after including automobile truck, automobile wagon and motor cycle, the words "any other self-propelled vehicle not designed for running on rails" still indicate that a vehicle in the popular sense, that is a vehicle running on land, is the theme. It is a vehicle that runs, not something, not commonly called a vehicle, that flies. Airplanes were well known in 1919, when this statute was passed; but it is admitted that they were not mentioned in the reports or in the debates in Congress. [27] It is impossible to read words that so carefully enumerate the different forms of motor vehicles and have no reference of any kind to aircraft, as including airplanes under a term that usage more and more precisely confines to a different class. The counsel for the petitioner have shown that the phraseology of the statute as to motor vehicles follows that of earlier statutes of Connecticut, Delaware, Ohio, Michigan and Missouri, not to mention the late Regulations of Traffic for the District of Columbia, Title 6, c. 9, § 242, none of which can be supposed to leave the earth.

          14

          Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear. When a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not be extended to aircraft, simply because it may seem to us that a similar policy applies, or upon the speculation that, if the legislature had thought of it, very likely broader words would have been used. United States v. Thind, 261 U.S. 204, 209.

          15

          Judgment reversed.

        • 6.2.1.3 Chicago v. Morales

          1
          527 U.S. 41 (1999)
          2
          CITY OF CHICAGO
          v.
          MORALES et al.
          3
          No. 97-1121.
          4

          United States Supreme Court.

          5
          Argued December 9, 1998.
          6
          Decided June 10, 1999.
          7

           

          8

          CERTIORARI TO THE SUPREME COURT OF ILLINOIS

          9

           

          10

          [42] [43] [44] Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, in which O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts III, IV, and VI, in which Souter and Ginsburg, JJ., joined. O'Connor, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer, J., joined, post, p. 64. Kennedy, J., post, p. 69, and Breyer, J., post, p. 70, filed opinions concurring in part and concurring in the judgment. Scalia, J., filed a dissenting opinion, post, p. 73. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 98.

          11

          Lawrence Rosenthal argued the cause for petitioner. With him on the briefs were Brian L. Crowe, Benna Ruth Solomon, Timothy W. Joranko, and Julian N. Henriques, Jr.

          12

          Harvey Grossman argued the cause for respondents. With him on the brief were Rita Fry, James H. Reddy, Richard J. O'Brien, Jr., Barbara O'Toole, and Steven R. Shapiro.[*]

          13

          [45] Justice Stevens announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, and an opinion with respect to Parts III, IV, and VI, in which Justice Souter and Justice Ginsburg join.

          14

          In 1992, the Chicago City Council enacted the Gang Congregation Ordinance, which prohibits "criminal street gang [46] members" from "loitering" with one another or with other persons in any public place. The question presented is whether the Supreme Court of Illinois correctly held that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution.

          15
           
          16
          I
          17

           

          18

          Before the ordinance was adopted, the city council's Committee on Police and Fire conducted hearings to explore the problems created by the city's street gangs, and more particularly, the consequences of public loitering by gang members. Witnesses included residents of the neighborhoods where gang members are most active, as well as some of the aldermen who represent those areas. Based on that evidence, the council made a series of findings that are included in the text of the ordinance and explain the reasons for its enactment.[1]

          19

          The council found that a continuing increase in criminal street gang activity was largely responsible for the city's rising murder rate, as well as an escalation of violent and drug related crimes. It noted that in many neighborhoods throughout the city, "`the burgeoning presence of street gang members in public places has intimidated many law abiding citizens.' " 177 Ill. 2d 440, 445, 687 N. E. 2d 53, 58 (1997). Furthermore, the council stated that gang members "`establish control over identifiable areas . . . by loitering in those areas and intimidating others from entering those areas; and . . . [m]embers of criminal street gangs avoid arrest by committing no offense punishable under existing laws when they know the police are present . . . .' " Ibid. It further found that "`loitering in public places by [47] criminal street gang members creates a justifiable fear for the safety of persons and property in the area' " and that "`[a]ggressive action is necessary to preserve the city's streets and other public places so that the public may use such places without fear.' " Moreover, the council concluded that the city "`has an interest in discouraging all persons from loitering in public places with criminal gang members.' " Ibid.

          20

          The ordinance creates a criminal offense punishable by a fine of up to $500, imprisonment for not more than six months, and a requirement to perform up to 120 hours of community service. Commission of the offense involves four predicates. First, the police officer must reasonably believe that at least one of the two or more persons present in a "`public place' " is a "`criminal street gang membe[r].' " Second, the persons must be "`loitering,' " which the ordinance defines as "`remain[ing] in any one place with no apparent purpose.' " Third, the officer must then order "`all' " of the persons to disperse and remove themselves "`from the area.' " Fourth, a person must disobey the officer's order. If any person, whether a gang member or not, disobeys the officer's order, that person is guilty of violating the ordinance. Ibid.[2]

          21

          [48] Two months after the ordinance was adopted, the Chicago Police Department promulgated General Order 92-4 to provide guidelines to govern its enforcement.[3] That order purported to establish limitations on the enforcement discretion of police officers "to ensure that the anti-gang loitering ordinance is not enforced in an arbitrary or discriminatory way." Chicago Police Department, General Order 92-4, reprinted in App. to Pet. for Cert. 65a. The limitations confine the authority to arrest gang members who violate the ordinance to sworn "members of the Gang Crime Section" and certain other designated officers,[4] and establish detailed criteria for defining street gangs and membership in such gangs. Id., at 66a—67a. In addition, the order directs district commanders to "designate areas in which the presence of gang members has a demonstrable effect on the activities of law abiding persons in the surrounding community," and provides that the ordinance "will be enforced only within the designated [49] areas." Id., at 68a—69a. The city, however, does not release the locations of these "designated areas" to the public.[5]

          22
           
          23
          II
          24

           

          25

          During the three years of its enforcement,[6] the police issued over 89,000 dispersal orders and arrested over 42,000 people for violating the ordinance.[7] In the ensuing enforcement proceedings, 2 trial judges upheld the constitutionality of the ordinance, but 11 others ruled that it was invalid.[8] In respondent Youkhana's case, the trial judge held that the "ordinance fails to notify individuals what conduct [50] is prohibited, and it encourages arbitrary and capricious enforcement by police."[9]

          26

          The Illinois Appellate Court affirmed the trial court's ruling in the Youkhana case,[10] consolidated and affirmed other pending appeals in accordance with Youkhana,[11] and reversed the convictions of respondents Gutierrez, Morales, and others.[12] The Appellate Court was persuaded that the ordinance impaired the freedom of assembly of nongang members in violation of the First Amendment to the Federal Constitution and Article I of the Illinois Constitution, that it was unconstitutionally vague, that it improperly criminalized status rather than conduct, and that it jeopardized rights guaranteed under the Fourth Amendment.[13]

          27

          The Illinois Supreme Court affirmed. It held "that the gang loitering ordinance violates due process of law in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties." 177 Ill. 2d, at 447, 687 N. E. 2d, at 59. The court did not reach the contentions that the ordinance "creates a status offense, permits arrests without probable cause or is overbroad." Ibid.

          28

          In support of its vagueness holding, the court pointed out that the definition of "loitering" in the ordinance drew no distinction between innocent conduct and conduct calculated [51] to cause harm.[14] "Moreover, the definition of `loiter' provided by the ordinance does not assist in clearly articulating the proscriptions of the ordinance." Id., at 451-452, 687 N. E. 2d, at 60-61. Furthermore, it concluded that the ordinance was "not reasonably susceptible to a limiting construction which would affirm its validity."[15]

          29

          We granted certiorari, 523 U. S. 1071 (1998), and now affirm. Like the Illinois Supreme Court, we conclude that the ordinance enacted by the city of Chicago is unconstitutionally vague.

          30
           
          31
          III
          32

           

          33

          The basic factual predicate for the city's ordinance is not in dispute. As the city argues in its brief, "the very presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways intimidates residents, who become afraid even to leave their homes and go about their business. That, in turn, imperils community residents' sense of safety and security, detracts from property values, and can ultimately destabilize entire neighborhoods."[16] The findings in the ordinance explain that it was motivated by these concerns. We have no doubt [52] that a law that directly prohibited such intimidating conduct would be constitutional,[17] but this ordinance broadly covers a significant amount of additional activity. Uncertainty about the scope of that additional coverage provides the basis for respondents' claim that the ordinance is too vague.

          34

          We are confronted at the outset with the city's claim that it was improper for the state courts to conclude that the ordinance is invalid on its face. The city correctly points out that imprecise laws can be attacked on their face under two different doctrines.[18] First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when "judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U. S. 601, 612-615 (1973). Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. Kolender v. Lawson, 461 U. S. 352, 358 (1983).

          35

          While we, like the Illinois courts, conclude that the ordinance is invalid on its face, we do not rely on the overbreadth doctrine. We agree with the city's submission that the law does not have a sufficiently substantial impact on conduct [53] protected by the First Amendment to render it unconstitutional. The ordinance does not prohibit speech. Because the term "loiter" is defined as remaining in one place "with no apparent purpose," it is also clear that it does not prohibit any form of conduct that is apparently intended to convey a message. By its terms, the ordinance is inapplicable to assemblies that are designed to demonstrate a group's support of, or opposition to, a particular point of view. Cf. Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984); Gregory v. Chicago, 394 U. S. 111 (1969). Its impact on the social contact between gang members and others does not impair the First Amendment "right of association" that our cases have recognized. See Dallas v. Stanglin, 490 U. S. 19, 23-25 (1989).

          36

          On the other hand, as the United States recognizes, the freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment.[19] We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution. Williams v. Fears, 179 U. S. 270, 274 (1900); see also Papachristou v. Jacksonville, 405 U. S. 156, 164 (1972).[20] [54] Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is "a part of our heritage" Kent v. Dulles, 357 U. S. 116, 126 (1958), or the right to move "to whatsoever place one's own inclination may direct" identified in Blackstone's Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765).[21]

          37

          [55] There is no need, however, to decide whether the impact of the Chicago ordinance on constitutionally protected liberty alone would suffice to support a facial challenge under the overbreadth doctrine. Cf. Aptheker v. Secretary of State, 378 U. S. 500, 515-517 (1964) (right to travel); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 82-83 (1976) (abortion); Kolender v. Lawson, 461 U. S., at 355, n. 3, 358-360, and n. 9. For it is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that "simply regulates business behavior and contains a scienter requirement." See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982). It is a criminal law that contains no mens rea requirement, see Colautti v. Franklin, 439 U. S. 379, 395 (1979), and infringes on constitutionally protected rights, see id., at 391. When vagueness permeates the text of such a law, it is subject to facial attack.[22]

          38

          [56] 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. See Kolender v. Lawson, 461 U. S., at 357. Accordingly, we first consider whether the ordinance provides fair notice to the citizen and then discuss its potential for arbitrary enforcement.

          39
           
          40
          IV
          41

           

          42

          "It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits . . . ." Giaccio v. Pennsylvania, 382 U. S. 399, 402-403 (1966). The Illinois Supreme Court recognized that the term "loiter" may have a common and accepted meaning, 177 Ill. 2d, at 451, 687 N. E. 2d, at 61, but the definition of that term in this ordinance—"to remain in any one place with no apparent purpose"—does not. It is difficult to imagine how [57] any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an "apparent purpose." If she were talking to another person, would she have an apparent purpose? If she were frequently checking her watch and looking expectantly down the street, would she have an apparent purpose?[23]

          43

          Since the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member, the vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of "loitering," but rather about what loitering is covered by the ordinance and what is not. The Illinois Supreme Court emphasized the law's failure to distinguish between innocent conduct and conduct threatening harm.[24] Its decision followed the precedent set by a number of state courts that have upheld ordinances that criminalize loitering combined with some other overt act or evidence of criminal intent.[25] However, state [58] courts have uniformly invalidated laws that do not join the term "loitering" with a second specific element of the crime.[26]

          44

          The city's principal response to this concern about adequate notice is that loiterers are not subject to sanction until after they have failed to comply with an officer's order to disperse. "[W]hatever problem is created by a law that criminalizes conduct people normally believe to be innocent is solved when persons receive actual notice from a police order of what they are expected to do."[27] We find this response unpersuasive for at least two reasons.

          45

          First, the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law. "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). Although it is true that a loiterer is not subject to criminal sanctions unless he or she disobeys a dispersal order, the loitering is the conduct that the ordinance is designed to prohibit.[28] If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty. If the police are able to decide arbitrarily which members of the public they will order to disperse, then the Chicago ordinance becomes indistinguishable from the law we held invalid in Shuttlesworth v. Birmingham, 382 U. S. 87, 90 [59] (1965).[29] Because an officer may issue an order only after prohibited conduct has already occurred, it cannot provide the kind of advance notice that will protect the putative loiterer from being ordered to disperse. Such an order cannot retroactively give adequate warning of the boundary between the permissible and the impermissible applications of the law.[30]

          46

          Second, the terms of the dispersal order compound the inadequacy of the notice afforded by the ordinance. It provides that the officer "shall order all such persons to disperse and remove themselves from the area." App. to Pet. for Cert. 61a. This vague phrasing raises a host of questions. After such an order issues, how long must the loiterers remain apart? How far must they move? If each loiterer walks around the block and they meet again at the same location, are they subject to arrest or merely to being ordered to disperse again? As we do here, we have found vagueness in a criminal statute exacerbated by the use of the standards of "neighborhood" and "locality." Connally v. General Constr. Co., 269 U. S. 385 (1926). We remarked in Connally that "[b]oth terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles." Id., at 395.

          47

          Lack of clarity in the description of the loiterer's duty to obey a dispersal order might not render the ordinance unconstitutionally [60] vague if the definition of the forbidden conduct were clear, but it does buttress our conclusion that the entire ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted. The Constitution does not permit a legislature to "set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." United States v. Reese, 92 U. S. 214, 221 (1876). This ordinance is therefore 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. Cincinnati, 402 U. S. 611, 614 (1971).

          48
           
          49
          V
          50

           

          51

          The broad sweep of the ordinance also violates "`the requirement that a legislature establish minimal guidelines to govern law enforcement.' " Kolender v. Lawson, 461 U. S., at 358. There are no such guidelines in the ordinance. In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may— indeed, she "shall"—order them to disperse.

          52

          Recognizing that the ordinance does reach a substantial amount of innocent conduct, we turn, then, to its language to determine if it "necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat." Kolender v. Lawson, 461 U. S., at 360 (internal quotation marks omitted). As we discussed in the context of fair notice, [61] see supra, at 56-60, the principal source of the vast discretion conferred on the police in this case is the definition of loitering as "to remain in any one place with no apparent purpose."

          53

          As the Illinois Supreme Court interprets that definition, it "provides absolute discretion to police officers to decide what activities constitute loitering." 177 Ill. 2d, at 457, 687 N. E. 2d, at 63. We have no authority to construe the language of a state statute more narrowly than the construction given by that State's highest court.[31] "The power to determine the meaning of a statute carries with it the power to prescribe its extent and limitations as well as the method by which they shall be determined." Smiley v. Kansas, 196 U. S. 447, 455 (1905).

          54

          Nevertheless, the city disputes the Illinois Supreme Court's interpretation, arguing that the text of the ordinance limits the officer's discretion in three ways. First, it does not permit the officer to issue a dispersal order to anyone who is moving along or who has an apparent purpose. Second, it does not permit an arrest if individuals obey a dispersal order. Third, no order can issue unless the officer reasonably believes that one of the loiterers is a member of a criminal street gang.

          55

          Even putting to one side our duty to defer to a state court's construction of the scope of a local enactment, we find each of these limitations insufficient. That the ordinance does not apply to people who are moving—that is, to activity that would not constitute loitering under any possible definition of the term—does not even address the question of how much discretion the police enjoy in deciding which stationary persons [62] to disperse under the ordinance.[32] Similarly, that the ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether such an order should issue. The "no apparent purpose" standard for making that decision is inherently subjective because its application depends on whether some purpose is "apparent" to the officer on the scene.

          56

          Presumably an officer would have discretion to treat some purposes—perhaps a purpose to engage in idle conversation or simply to enjoy a cool breeze on a warm evening—as too frivolous to be apparent if he suspected a different ulterior motive. Moreover, an officer conscious of the city council's reasons for enacting the ordinance might well ignore its text and issue a dispersal order, even though an illicit purpose is actually apparent.

          57

          It is true, as the city argues, that the requirement that the officer reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect,[33] or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members. But this ordinance, for reasons that are not explained in the findings of the city council, requires no harmful purpose and applies to nongang members as well as suspected gang members.[34] It applies to everyone in the city [63] who may remain in one place with one suspected gang member as long as their purpose is not apparent to an officer observing them. Friends, relatives, teachers, counselors, or even total strangers might unwittingly engage in forbidden loitering if they happen to engage in idle conversation with a gang member.

          58

          Ironically, the definition of loitering in the Chicago ordinance not only extends its scope to encompass harmless conduct, but also has the perverse consequence of excluding from its coverage much of the intimidating conduct that motivated its enactment. As the city council's findings demonstrate, the most harmful gang loitering is motivated either by an apparent purpose to publicize the gang's dominance of certain territory, thereby intimidating nonmembers, or by an equally apparent purpose to conceal ongoing commerce in illegal drugs. As the Illinois Supreme Court has not placed any limiting construction on the language in the ordinance, we must assume that the ordinance means what it says and that it has no application to loiterers whose purpose is apparent. The relative importance of its application to harmless loitering is magnified by its inapplicability to loitering that has an obviously threatening or illicit purpose.

          59

          Finally, in its opinion striking down the ordinance, the Illinois Supreme Court refused to accept the general order issued by the police department as a sufficient limitation on the "vast amount of discretion" granted to the police in its enforcement. We agree. See Smith v. Goguen, 415 U. S. 566, 575 (1974). That the police have adopted internal rules limiting their enforcement to certain designated areas in the city would not provide a defense to a loiterer who might be arrested elsewhere. Nor could a person who knowingly loitered with a well-known gang member anywhere in the city [64] safely assume that they would not be ordered to disperse no matter how innocent and harmless their loitering might be.

          60
           
          61
          VI
          62

           

          63

          In our judgment, the Illinois Supreme Court correctly concluded that the ordinance does not provide sufficiently specific limits on the enforcement discretion of the police "to meet constitutional standards for definiteness and clarity."[35] 177 Ill. 2d, at 459, 687 N. E. 2d, at 64. We recognize the serious and difficult problems testified to by the citizens of Chicago that led to the enactment of this ordinance. "We are mindful that the preservation of liberty depends in part on the maintenance of social order." Houston v. Hill, 482 U. S. 451, 471-472 (1987). However, in this instance the city has enacted an ordinance that affords too much discretion to the police and too little notice to citizens who wish to use the public streets.

          64

          Accordingly, the judgment of the Supreme Court of Illinois is

          65

          Affirmed.

          66

          Justice O'Connor, with whom Justice Breyer joins, concurring in part and concurring in the judgment.

          67

          I agree with the Court that Chicago's Gang Congregation Ordinance, Chicago Municipal Code § 8-4—015 (1992) (gang loitering ordinance or ordinance) is unconstitutionally vague. A penal law is void for vagueness if it fails to "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited" or fails to [65] establish guidelines to prevent "arbitrary and discriminatory enforcement" of the law. Kolender v. Lawson, 461 U. S. 352, 357 (1983). Of these, "the more important aspect of the vagueness doctrine `is . . . the requirement that a legislature establish minimal guidelines to govern law enforcement.' " Id., at 358 (quoting Smith v. Goguen, 415 U. S. 566, 574-575 (1974)). I share Justice Thomas' concern about the consequences of gang violence, and I agree that some degree of police discretion is necessary to allow the police "to perform their peace keeping responsibilities satisfactorily." Post, at 109 (dissenting opinion). A criminal law, however, must not permit policemen, prosecutors, and juries to conduct "`a standardless sweep . . . to pursue their personal predilections.' " Kolender v. Lawson, supra, at 358 (quoting Smith v. Goguen, supra, at 575).

          68

          The ordinance at issue provides:

          69
          "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 to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section." App. to Pet. for Cert. 61a.
          70

           

          71

          To "[l]oiter," in turn, is defined in the ordinance as "to remain in any one place with no apparent purpose." Ibid. The Illinois Supreme Court declined to adopt a limiting construction of the ordinance and concluded that the ordinance vested "absolute discretion to police officers." 177 Ill. 2d 440, 457, 687 N. E. 2d 53, 63 (1997) (emphasis added). This Court is bound by the Illinois Supreme Court's construction of the ordinance. See Terminiello v. Chicago, 337 U. S. 1, 4 (1949).

          72

          As it has been construed by the Illinois court, Chicago's gang loitering ordinance is unconstitutionally vague because it lacks sufficient minimal standards to guide law enforcement [66] officers. In particular, it fails to provide police with any standard by which they can judge whether an individual has an "apparent purpose." Indeed, because any person standing on the street has a general "purpose"—even if it is simply to stand—the ordinance permits police officers to choose which purposes are permissible. Under this construction the police do not have to decide that an individual is "threaten[ing] the public peace" to issue a dispersal order. See post, at 107 (Thomas, J., dissenting). 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. Further, as construed by the Illinois court, the ordinance applies to hundreds of thousands of persons who are not gang members, standing on any sidewalk or in any park, coffee shop, bar, or "other location open to the public, whether publicly or privately owned." Chicago Municipal Code § 8-4—015(c)(5) (1992).

          73

          To be sure, there is no violation of the ordinance unless a person fails to obey promptly the order to disperse. But, a police officer cannot issue a dispersal order until he decides that a person is remaining in one place "with no apparent purpose," and the ordinance provides no guidance to the officer on how to make this antecedent decision. Moreover, the requirement that police issue dispersal orders only when they "reasonably believ[e]" that a group of loiterers includes a gang member fails to cure the ordinance's vague aspects. If the ordinance applied only to persons reasonably believed to be gang members, this requirement might have cured the ordinance's vagueness because it would have directed the manner in which the order was issued by specifying to whom the order could be issued. Cf. ante, at 62. But, the Illinois Supreme Court did not construe the ordinance to be so limited. See 177 Ill. 2d, at 453-454, 687 N. E. 2d, at 62.

          74

          This vagueness consideration alone provides a sufficient ground for affirming the Illinois court's decision, and I agree [67] with Part V of the Court's opinion, which discusses this consideration. See ante, at 62 ("[T]hat the ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether such an order should issue"); ibid. ("It is true .. . that the requirement that the officer reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect, or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members"). Accordingly, there is no need to consider the other issues briefed by the parties and addressed by the plurality. I express no opinion about them.

          75

          It is important to courts and legislatures alike that we characterize more clearly the narrow scope of today's holding. As the ordinance comes to this Court, it is unconstitutionally vague. Nevertheless, there remain open to Chicago reasonable alternatives to combat the very real threat posed by gang intimidation and violence. For example, the Court properly and expressly distinguishes the ordinance from laws that require loiterers to have a "harmful purpose," see ibid., from laws that target only gang members, see ibid., and from laws that incorporate limits on the area and manner in which the laws may be enforced, see ante, at 62-63. In addition, the ordinance here is unlike a law that "directly prohibit[s]" the "`presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways,' " that "`intimidates residents.' " Ante, at 51, 52 (quoting Brief for Petitioner 14). Indeed, as the plurality notes, the city of Chicago has several laws that do exactly this. See ante, at 52, n. 17. Chicago has even enacted a provision that "enables police officers to fulfill . . . their traditional functions," including "preserving the public peace." See post, at 106 (Thomas, J., dissenting). Specifically, [68] Chicago's general disorderly conduct provision allows the police to arrest those who knowingly "provoke, make or aid in making a breach of peace." See Chicago Municipal Code § 8-4—010 (1992).

          76

          In my view, the gang loitering ordinance could have been construed more narrowly. The term "loiter" might possibly be construed in a more limited fashion to mean "to remain in any one place with no apparent purpose other than to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities." Such a definition would be consistent with the Chicago City Council's findings and would avoid the vagueness problems of the ordinance as construed by the Illinois Supreme Court. See App. to Pet. for Cert. 60a—61a. As noted above, so would limitations that restricted the ordinance's criminal penalties to gang members or that more carefully delineated the circumstances in which those penalties would apply to nongang members.

          77

          The Illinois Supreme Court did not choose to give a limiting construction to Chicago's ordinance. To the extent it relied on our precedents, particularly Papachristou v. Jacksonville, 405 U. S. 156 (1972), as requiring it to hold the ordinance vague in all of its applications because it was intentionally drafted in a vague manner, the Illinois court misapplied our precedents. See 177 Ill. 2d, at 458-459, 687 N. E. 2d, at 64. This Court has never held that the intent of the drafters determines whether a law is vague. Nevertheless, we cannot impose a limiting construction that a state supreme court has declined to adopt. See Kolender v. Lawson, 461 U. S., at 355-356, n. 4 (noting that the Court has held that "`[f]or the purpose of determining whether a state statute is too vague and indefinite to constitute valid legislation we must take the statute as though it read precisely as the highest court of the State has interpreted it' " (citations and internal quotation marks omitted)); New York [69] v. Ferber, 458 U. S. 747, 769, n. 24 (1982) (noting that where the Court is "dealing with a state statute on direct review of a state-court decision that has construed the statute[,] [s]uch a construction is binding on us"). Accordingly, I join Parts I, II, and V of the Court's opinion and concur in the judgment.

          78

          Justice Kennedy, concurring in part and concurring in the judgment.

          79

          I join Parts I, II, and V of the Court's opinion and concur in the judgment.

          80

          I also share many of the concerns Justice Stevens expresses in Part IV with respect to the sufficiency of notice under the ordinance. As interpreted by the Illinois Supreme Court, the Chicago ordinance would reach a broad range of innocent conduct. For this reason it is not necessarily saved by the requirement that the citizen must disobey a police order to disperse before there is a violation.

          81

          We have not often examined these types of orders. Cf. Shuttlesworth v. Birmingham, 382 U. S. 87 (1965). It can be assumed, however, that some police commands will subject a citizen to prosecution for disobeying whether or not the citizen knows why the order is given. Illustrative examples include when the police tell a pedestrian not to enter a building and the reason is to avoid impeding a rescue team, or to protect a crime scene, or to secure an area for the protection of a public official. It does not follow, however, that any unexplained police order must be obeyed without notice of the lawfulness of the order. The predicate of an order to disperse is not, in my view, sufficient to eliminate doubts regarding the adequacy of notice under this ordinance. A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to a dispersal order based on the officer's own knowledge of the identity or affiliations of other persons with whom the citizen is congregating; [70] nor may the citizen be able to assess what an officer might conceive to be the citizen's lack of an apparent purpose.

          82

          Justice Breyer, concurring in part and concurring in the judgment.

          83

          The ordinance before us creates more than a "minor limitation upon the free state of nature." Post, at 74 (Scalia, J., dissenting) (emphasis added). The law authorizes a police officer to order any person to remove himself from any "location open to the public, whether publicly or privately owned," Chicago Municipal Code § 8-4—015(c)(5) (1992), i. e., any sidewalk, front stoop, public park, public square, lakeside promenade, hotel, restaurant, bowling alley, bar, barbershop, sports arena, shopping mall, etc., but with two, and only two, limitations: First, that person must be accompanied by (or must himself be) someone police reasonably believe is a gang member. Second, that person must have remained in that public place "with no apparent purpose." § 8-4—015(c)(1).

          84

          The first limitation cannot save the ordinance. Though it limits the number of persons subject to the law, it leaves many individuals, gang members and nongang members alike, subject to its strictures. Nor does it limit in any way the range of conduct that police may prohibit. The second limitation is, as the Court, ante, at 62, and Justice O'Connor, ante, at 65-66 (opinion concurring in part and concurring in judgment), point out, not a limitation at all. Since one always has some apparent purpose, the so-called limitation invites, in fact requires, the policeman to interpret the words "no apparent purpose" as meaning "no apparent purpose except for . . . ." And it is in the ordinance's delegation to the policeman of open-ended discretion to fill in that blank that the problem lies. To grant to a policeman virtually standardless discretion to close off major portions of the city to an innocent person is, in my view, to create a major, not a "minor," "limitation upon the free state of nature."

          85

          [71] Nor does it violate "our rules governing facial challenges," post, at 74 (Scalia, J., dissenting), to forbid the city to apply the unconstitutional ordinance in this case. The reason why the ordinance is invalid explains how that is so. As I have said, I believe the ordinance violates the Constitution because it delegates too much discretion to a police officer to decide whom to order to move on, and in what circumstances. And I see no way to distinguish in the ordinance's terms between one application of that discretion and another. The ordinance is unconstitutional, not because a policeman applied this discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case. And if every application of the ordinance represents an exercise of unlimited discretion, then the ordinance is invalid in all its applications. The city of Chicago may be able validly to apply some other law to the defendants in light of their conduct. But the city of Chicago may no more apply this law to the defendants, no matter how they behaved, than it could apply an (imaginary) statute that said, "It is a crime to do wrong," even to the worst of murderers. See Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939) ("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").

          86

          Justice Scalia's examples, post, at 81-83, reach a different conclusion because they assume a different basis for the law's constitutional invalidity. A statute, for example, might not provide fair warning to many, but an individual defendant might still have been aware that it prohibited the conduct in which he engaged. Cf., e. g., Parker v. Levy, 417 U. S. 733, 756 (1974) ("[O]ne who has received fair warning of the criminality of his own conduct from the statute in question is [not] entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit.

          87

          [72] One to whose conduct a statute clearly applies may not successfully challenge it for vagueness"). But I believe this ordinance is unconstitutional, not because it provides insufficient notice, but because it does not provide "sufficient minimal standards to guide law enforcement officers." See ante, at 65-66 (O'Connor, J., concurring in part and concurring in judgment).

          88

          I concede that this case is unlike those First Amendment "overbreadth" cases in which this Court has permitted a facial challenge. In an overbreadth case, a defendant whose conduct clearly falls within the law and may be constitutionally prohibited can nonetheless have the law declared facially invalid to protect the rights of others (whose protected speech might otherwise be chilled). In the present case, the right that the defendants assert, the right to be free from the officer's exercise of unchecked discretion, is more clearly their own.

          89

          This case resembles Coates v. Cincinnati, 402 U. S. 611 (1971), where this Court declared facially unconstitutional on, among other grounds, the due process standard of vagueness an ordinance that prohibited persons assembled on a sidewalk from "conduct[ing] themselves in a manner annoying to persons passing by." The Court explained:

          90
          "It is said that the ordinance is broad enough to encompass many types of conduct clearly within the city's constitutional power to prohibit. And so, indeed, it is. The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited. . . . It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed." Id., at 614 (citation omitted).
          91

           

          92

          [73] The ordinance in Coates could not constitutionally be applied whether or not the conduct of the particular defendants was indisputably "annoying" or of a sort that a different, more specific ordinance could constitutionally prohibit. Similarly, here the city might have enacted a different ordinance, or the Illinois Supreme Court might have interpreted this ordinance differently. And the Constitution might well have permitted the city to apply that different ordinance (or this ordinance as interpreted differently) to circumstances like those present here. See ante, at 67-68 (O'Connor, J., concurring in part and concurring in judgment). But this ordinance, as I have said, cannot be constitutionally applied to anyone.

          93

          Justice Scalia, dissenting.

          94

          The citizens of Chicago were once free to drive about the city at whatever speed they wished. At some point Chicagoans (or perhaps Illinoisans) decided this would not do, and imposed prophylactic speed limits designed to assure safe operation by the average (or perhaps even subaverage) driver with the average (or perhaps even subaverage) vehicle. This infringed upon the "freedom" of all citizens, but was not unconstitutional.

          95

          Similarly, the citizens of Chicago were once free to stand around and gawk at the scene of an accident. At some point Chicagoans discovered that this obstructed traffic and caused more accidents. They did not make the practice unlawful, but they did authorize police officers to order the crowd to disperse, and imposed penalties for refusal to obey such an order. Again, this prophylactic measure infringed upon the "freedom" of all citizens, but was not unconstitutional.

          96

          Until the ordinance that is before us today was adopted, the citizens of Chicago were free to stand about in public places with no apparent purpose—to engage, that is, in conduct that appeared to be loitering. In recent years, however, the city has been afflicted with criminal street gangs. As reflected in the record before us, these gangs congregated [74] in public places to deal in drugs, and to terrorize the neighborhoods by demonstrating control over their "turf." Many residents of the inner city felt that they were prisoners in their own homes. Once again, Chicagoans decided that to eliminate the problem it was worth restricting some of the freedom that they once enjoyed. The means they took was similar to the second, and more mild, example given above rather than the first: Loitering was not made unlawful, but when a group of people occupied a public place without an apparent purpose and in the company of a known gang member, police officers were authorized to order them to disperse, and the failure to obey such an order was made unlawful. See Chicago Municipal Code § 8-4—015 (1992). The minor limitation upon the free state of nature that this prophylactic arrangement imposed upon all Chicagoans seemed to them (and it seems to me) a small price to pay for liberation of their streets.

          97

          The majority today invalidates this perfectly reasonable measure by ignoring our rules governing facial challenges, by elevating loitering to a constitutionally guaranteed right, and by discerning vagueness where, according to our usual standards, none exists.

          98
           
          99
          I
          100

           

          101

          Respondents' consolidated appeal presents a facial challenge to the Chicago ordinance on vagueness grounds. When a facial challenge is successful, the law in question is declared to be unenforceable in all its applications, and not just in its particular application to the party in suit. To tell the truth, it is highly questionable whether federal courts have any business making such a declaration. The rationale for our power to review federal legislation for constitutionality, expressed in Marbury v. Madison, 1 Cranch 137 (1803), was that we had to do so in order to decide the case before us. But that rationale only extends so far as to require us to determine that the statute is unconstitutional as applied to this party, in the circumstances of this case.

          102

          [75] That limitation was fully grasped by Tocqueville, in his famous chapter on the power of the judiciary in American society:

          103
          "The second characteristic of judicial power is, that it pronounces on special cases, and not upon general principles. If a judge, in deciding a particular point, destroys a general principle by passing a judgment which tends to reject all the inferences from that principle, and consequently to annul it, he remains within the ordinary limits of his functions. But if he directly attacks a general principle without having a particular case in view, he leaves the circle in which all nations have agreed to confine his authority; he assumes a more important, and perhaps a more useful influence, than that of the magistrate; but he ceases to represent the judicial power. 
          104

           

          105

          . . . . .

          106
          "Whenever a law which the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may refuse to admit it as a rule . . . . But as soon as a judge has refused to apply any given law in a case, that law immediately loses a portion of its moral force. Those to whom it is prejudicial learn that means exist of overcoming its authority; and similar suits are multiplied, until it becomes powerless. . . . The political power which the Americans have intrusted to their courts of justice is therefore immense; but the evils of this power are considerably diminished by the impossibility of attacking the laws except through the courts of justice. . . . [W]hen a judge contests a law in an obscure debate on some particular case, the importance of his attack is concealed from public notice; his decision bears upon the interest of an individual, and the law is slighted only incidentally. Moreover, although it is censured, it is not abolished; its moral force may be diminished, but its authority is not taken away; and its final destruction can [76] be accomplished only by the reiterated attacks of judicial functionaries." Democracy in America 73, 75-76 (R. Heffner ed. 1956).
          107

           

          108

          As Justice Sutherland described our system in his opinion for a unanimous Court in Massachusetts v. Mellon, 262 U. S. 447, 488 (1923):

          109
          "We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of a legal right. . . . If a case for preventive relief be presented the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding."
          110

          And as Justice Brennan described our system in his opinion for a unanimous Court in United States v. Raines, 362 U. S. 17, 20-22 (1960):

          111
          "The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies before them. . . . This Court, as is the case with all federal courts, `has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of [77] constitutional law broader than is required by the precise facts to which it is to be applied.' . . .Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. . . . The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined."
          112

          It seems to me fundamentally incompatible with this system for the Court not to be content to find that a statute is unconstitutional as applied to the person before it, but to go further and pronounce that the statute is unconstitutional in all applications. Its reasoning may well suggest as much, but to pronounce a holding on that point seems to me no more than an advisory opinion—which a federal court should never issue at all, see Hayburn's Case, 2 Dall. 409 (1792), and especially should not issue with regard to a constitutional question, as to which we seek to avoid even non advisory opinions, see, e. g., Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). I think it quite improper, in short, to ask the constitutional claimant before us: Do you just want us to say that this statute cannot constitutionally be applied to you in this case, or do you want to go for broke and try to get the statute pronounced void in all its applications?

          113

          I must acknowledge, however, that for some of the present century we have done just this. But until recently, at least, we have—except in free-speech cases subject to the doctrine of overbreadth, see, e. g., New York v. Ferber, 458 U. S. 747, 769-773 (1982)—required the facial challenge to be a go-forbroke proposition. That is to say, before declaring a statute to be void in all its applications (something we should not be doing in the first place), we have at least imposed upon the litigant the eminently reasonable requirement that he establish [78] that the statute was unconstitutional in all its applications. (I say that is an eminently reasonable requirement, not only because we should not be holding a statute void in all its applications unless it is unconstitutional in all its applications, but also because unless it is unconstitutional in all its applications we do not even know, without conducting an as-applied analysis, whether it is void with regard to the very litigant before us—whose case, after all, was the occasion for undertaking this inquiry in the first place.[1])

          114

          As we said in United States v. Salerno, 481 U. S. 739, 745 (1987):

          115
          "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circum-
          116
          [79] stances exists under which the Act would be valid. The fact that [a legislative Act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an `overbreadth' doctrine outside the limited context of the First Amendment." (Emphasis added.)[2]
          117

           

          118

          This proposition did not originate with Salerno, but had been expressed in a line of prior opinions. See, e. g., Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 796 (1984) (opinion for the Court by Stevens, J.) (statute not implicating First Amendment rights is invalid on its face if "it is unconstitutional in every conceivable application"); Schall v. Martin, 467 U. S. 253, 269, n. 18 (1984); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 494-495, 497 (1982); United States v. National Dairy Products Corp., 372 U. S. 29, 31-32 (1963); Raines, 362 U. S., at 21. And the proposition has been reaffirmed in many cases and opinions since. See, e. g., Anderson v. Edwards, 514 U. S. 143, 155-156, n. 6 (1995) (unanimous Court); Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 699 (1995) (opinion for the Court by Stevens, J.) (facial challenge asserts that a challenged statute or regulation is invalid "in every circumstance"); Reno v. Flores, 507 U. S. 292, 301 (1993); Rust v. Sullivan, [80] 500 U. S. 173, 183 (1991); Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 514 (1990) (opinion of Kennedy, J.); Webster v. Reproductive Health Servs., 492 U. S. 490, 523-524 (1989) (O'Connor, J., concurring in part and concurring in judgment); New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 11-12 (1988).[3] Unsurprisingly, given the clarity of our general jurisprudence on this point, the Federal Courts of Appeals all apply the Salerno standard in adjudicating facial challenges.[4]

          119

          [81] I am aware, of course, that in some recent facial-challenge cases the Court has, without any attempt at explanation, created entirely irrational exceptions to the "unconstitutional in every conceivable application" rule, when the statutes at issue concerned hot-button social issues on which "informed opinion" was zealously united. See Romer v. Evans, 517 U. S. 620, 643 (1996) (Scalia, J., dissenting) (homosexual rights); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 895 (1992) (abortion rights). But the present case does not even lend itself to such a "political correctness" exception—which, though illogical, is at least predictable. It is not à la mode to favor gang members and associated loiterers over the beleaguered law-abiding residents of the inner city.

          120

          When our normal criteria for facial challenges are applied, it is clear that the Justices in the majority have transposed the burden of proof. Instead of requiring respondents, who are challenging the ordinance, to show that it is invalid in all its applications, they have required petitioner to show that it is valid in all its applications. Both the plurality opinion and the concurrences display a lively imagination, creating hypothetical situations in which the law's application would (in their view) be ambiguous. But that creative role has been usurped from petitioner, who can defeat respondents' facial challenge by conjuring up a single valid application of the law. My contribution would go something like this:[5] Tony, a member of the Jets criminal street gang, is standing [82] alongside and chatting with fellow gang members while staking out their turf at Promontory Point on the South Side of Chicago; the group is flashing gang signs and displaying their distinctive tattoos to passersby. Officer Krupke, applying the ordinance at issue here, orders the group to disperse. After some speculative discussion (probably irrelevant here) over whether the Jets are depraved because they are deprived, Tony and the other gang members break off further conversation with the statement—not entirely coherent, but evidently intended to be rude—"Gee, Officer Krupke, krup you." A tense standoff ensues until Officer Krupke arrests the group for failing to obey his dispersal order. Even assuming (as the Justices in the majority do, but I do not) that a law requiring obedience to a dispersal order is impermissibly vague unless it is clear to the objects of the order, before its issuance, that their conduct justifies it,I find it hard to believe that the Jets would not have known they had it coming. That should settle the matter of respondents' facial challenge to the ordinance's vagueness.

          121

          Of course respondents would still be able to claim that the ordinance was vague as applied to them. But the ultimate demonstration of the inappropriateness of the Court's holding of facial invalidity is the fact that it is doubtful whether some of these respondents could even sustain an as-applied challenge on the basis of the majority's own criteria. For instance, respondent Jose Renteria—who admitted that he was a member of the Satan Disciples gang—was observed by the arresting officer loitering on a street corner with other gang members. The officer issued a dispersal order, but when she returned to the same corner 15 to 20 minutes later, Renteria was still there with his friends, whereupon he was arrested. In another example, respondent Daniel Washington and several others—who admitted they were members of the Vice Lords gang—were observed by the arresting officer loitering in the street, yelling at passing vehicles, stopping traffic, and preventing pedestrians from using [83] the sidewalks. The arresting officer issued a dispersal order, issued another dispersal order later when the group did not move, and finally arrested the group when they were found loitering in the same place still later. Finally, respondent Gregorio Gutierrez—who had previously admitted to the arresting officer his membership in the Latin Kings gang—was observed loitering with two other men. The officer issued a dispersal order, drove around the block, and arrested the men after finding them in the same place upon his return. See Brief for Petitioner 7, n. 5; Brief for United States as Amicus Curiae 16, n. 11. Even on the majority's assumption that to avoid vagueness it must be clear to the object of the dispersal order ex ante that his conduct is covered by the ordinance, it seems most improbable that any of these as-applied challenges would be sustained. Much less is it possible to say that the ordinance is invalid in all its applications.

          122
           
          123
          II
          124

           

          125

          The plurality's explanation for its departure from the usual rule governing facial challenges is seemingly contained in the following statement: "[This] is a criminal law that contains no mens rea requirement . . . and infringes on constitutionally protected rights . . . . When vagueness permeates the text of such a law, it is subject to facial attack." Ante, at 55 (emphasis added). The proposition is set forth with such assurance that one might suppose that it repeats some well-accepted formula in our jurisprudence: (Criminal law without mens rea requirement) [H11501] (infringement of constitutionally protected right) [H11501] (vagueness) [H11505] (entitlement to facial invalidation). There is no such formula; the plurality has made it up for this case, as the absence of any citation demonstrates.

          126

          But no matter. None of the three factors that the plurality relies upon exists anyway. I turn first to the support for the proposition that there is a constitutionally protected right to loiter—or, as the plurality more favorably describes [84] it, for a person to "remain in a public place of his choice." Ante, at 54. The plurality thinks much of this Fundamental Freedom to Loiter, which it contrasts with such lesser, constitutionally un protected, activities as doing (ugh!) business: "This is not an ordinance that simply regulates business behavior and contains a scienter requirement. . . . It is a criminal law that contains no mens rea requirement . . . and infringes on constitutionally protected rights." Ante, at 55 (internal quotation marks omitted). (Poor Alexander Hamilton, who has seen his "commercial republic" devolve, in the eyes of the plurality, at least, into an "indolent republic," see The Federalist No. 6, p. 56; No. 11, pp. 84-91 (C. Rossiter ed. 1961).)

          127

          Of course every activity, even scratching one's head, can be called a "constitutional right" if one means by that term nothing more than the fact that the activity is covered (as all are) by the Equal Protection Clause, so that those who engage in it cannot be singled out without "rational basis." See FCC v. Beach Communications, Inc., 508 U. S. 307, 313 (1993). But using the term in that sense utterly impoverishes our constitutional discourse. We would then need a new term for those activities—such as political speech or religious worship—that cannot be forbidden even with rational basis.

          128

          The plurality tosses around the term "constitutional right" in this renegade sense, because there is not the slightest evidence for the existence of a genuine constitutional right to loiter. Justice Thomas recounts the vast historical tradition of criminalizing the activity. Post, at 102-106 (dissenting opinion). It is simply not maintainable that the right to loiter would have been regarded as an essential attribute of liberty at the time of the framing or at the time of adoption of the Fourteenth Amendment. For the plurality, however, the historical practices of our people are nothing more than a speed bump on the road to the "right" result. Its opinion blithely proclaims: "Neither this history nor the scholarly [85] compendia in Justice Thomas' dissent, [ibid.,] persuades us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause." Ante, at 54, n. 20. The entire practice of using the Due Process Clause to add judicially favored rights to the limitations upon democracy set forth in the Bill of Rights (usually under the rubric of socalled "substantive due process") is in my view judicial usurpation. But we have, recently at least, sought to limit the damage by tethering the courts' "right-making" power to an objective criterion. In Washington v. Glucksberg, 521 U. S. 702, 720-721 (1997), we explained our "established method" of substantive due process analysis: carefully and narrowly describing the asserted right, and then examining whether that right is manifested in "[o]ur Nation's history, legal traditions, and practices." See also Collins v. Harker Heights, 503 U. S. 115, 125-126 (1992); Michael H. v. Gerald D., 491 U. S. 110, 122-123 (1989); Moore v. East Cleveland, 431 U. S. 494, 502-503 (1977). The plurality opinion not only ignores this necessary limitation, but it leaps far beyond any substantive-due-process atrocity we have ever committed, by actually placing the burden of proof upon the defendant to establish that loitering is not a "fundamental liberty." It never does marshal any support for the proposition that loitering is a constitutional right, contenting itself with a (transparently inadequate) explanation of why the historical record of laws banning loitering does not positively contradict that proposition,[6] and the (transparently erroneous) assertion that the city of Chicago appears to have conceded the [86] point.[7] It is enough for the Members of the plurality that "history . . . [fails to] persuad[e] us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause," ante, at 54, n. 20 (emphasis added); they apparently think it quite unnecessary for anything to persuade them that it is.[8]

          129

          It would be unfair, however, to criticize the plurality's failed attempt to establish that loitering is a constitutionally [87] protected right while saying nothing of the concurrences. The plurality at least makes an attempt. The concurrences, on the other hand, make no pretense at attaching their broad "vagueness invalidates" rule to a liberty interest. As far as appears from Justice O'Connor's and Justice Breyer's opinions, no police officer may issue any order, affecting any insignificant sort of citizen conduct (except, perhaps, an order addressed to the unprotected class of "gang members") unless the standards for the issuance of that order are precise. No modern urban society—and probably none since London got big enough to have sewers—could function under such a rule. There are innumerable reasons why it may be important for a constable to tell a pedestrian to "move on"—and even if it were possible to list in an ordinance all of the reasons that are known, many are simply unpredictable. Hence the (entirely reasonable) Rule of the city of New York which reads: "No person shall fail, neglect or refuse to comply with the lawful direction or command of any Police Officer, Urban Park Ranger, Parks Enforcement Patrol Officer or other [Parks and Recreation] Department employee, indicated verbally, by gesture or otherwise." 56 RCNY § 1-03(c)(1) (1996). It is one thing to uphold an "as-applied" challenge when a pedestrian disobeys such an order that is unreasonable—or even when a pedestrian asserting some true "liberty" interest (holding a political rally, for instance) disobeys such an order that is reasonable but unexplained. But to say that such a general ordinance permitting "lawful orders" is void in all its applications demands more than a safe and orderly society can reasonably deliver.

          130

          Justice Kennedy apparently recognizes this, since he acknowledges that "some police commands will subject a citizen to prosecution for disobeying whether or not the citizen knows why the order is given," including, for example, an order "tell[ing] a pedestrian not to enter a building" when the reason is "to avoid impeding a rescue team." Ante, at 69 (opinion concurring in part and concurring in judgment). [88] But his only explanation of why the present interference with the "right to loiter" does not fall within that permitted scope of action is as follows: "The predicate of an order to disperse is not, in my view, sufficient to eliminate doubts regarding the adequacy of notice under this ordinance." Ibid. I have not the slightest idea what this means. But I do understand that the follow-up explanatory sentence, showing how this principle invalidates the present ordinance, applies equally to the rescue-team example that Justice Kennedy thinks is constitutional—as is demonstrated by substituting for references to the facts of the present case (shown in italics) references to his rescue-team hypothetical (shown in brackets): "A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to a dispersal order [order not to enter a building] based on the officer's own knowledge of the identity or affiliations of other persons with whom the citizen is congregating [what is going on in the building]; nor may the citizen be able to assess what an officer might conceive to be the citizen's lack of an apparent purpose [the impeding of a rescue team]." Ante, at 69-70.

          131
           
          132
          III
          133

           

          134

          I turn next to that element of the plurality's facialchallenge formula which consists of the proposition that this criminal ordinance contains no mens rea requirement. The first step in analyzing this proposition is to determine what the actus reus, to which that mens rea is supposed to be attached, consists of. The majority believes that loitering forms part of (indeed, the essence of) the offense, and must be proved if conviction is to be obtained. See ante, at 47, 50-51, 53-55, 57-59, 60-61, 62-63 (plurality and majority opinions); ante, at 65, 66, 68 (O'Connor, J., concurring in part and concurring in judgment); ante, at 69-70 (Kennedy, J., concurring in part and concurring in judgment); ante, at 72-73 (Breyer, J., concurring in part and concurring in judgment). That is not what the ordinance provides. The [89] only part of the ordinance that refers to loitering is the portion that addresses, not the punishable conduct of the defendant, but what the police officer must observe before he can issue an order to disperse; and what he must observe is carefully defined in terms of what the defendant appears to be doing, not in terms of what the defendant is actually doing. The ordinance does not require that the defendant have been loitering (i. e., have been remaining in one place with no purpose), but rather that the police officer have observed him remaining in one place without any apparent purpose. Someone who in fact has a genuine purpose for remaining where he is (waiting for a friend, for example, or waiting to hold up a bank) can be ordered to move on (assuming the other conditions of the ordinance are met), so long as his remaining has no apparent purpose. It is likely, to be sure, that the ordinance will come down most heavily upon those who are actually loitering (those who really have no purpose in remaining where they are); but that activity is not a condition for issuance of the dispersal order.

          135

          The only act of a defendant that is made punishable by the ordinance—or, indeed, that is even mentioned by the ordinance—is his failure to "promptly obey" an order to disperse. The question, then, is whether that actus reus must be accompanied by any wrongful intent—and of course it must. As the Court itself describes the requirement, "a person must disobey the officer's order." Ante, at 47 (emphasis added). No one thinks a defendant could be successfully prosecuted under the ordinance if he did not hear the order to disperse, or if he suffered a paralysis that rendered his compliance impossible. The willful failure to obey a police order is wrongful intent enough.

          136
           
          137
          IV
          138

           

          139

          Finally, I address the last of the three factors in the plurality's facial-challenge formula: the proposition that the ordinance is vague. It is not. Even under the ersatz overbreadth [90] standard applied in Kolender v. Lawson, 461 U. S. 352, 358, n. 8 (1983), which allows facial challenges if a law reaches "a substantial amount of constitutionally protected conduct," respondents' claim fails because the ordinance would not be vague in most or even a substantial number of applications. A law is unconstitutionally vague if its lack of definitive standards either (1) fails to apprise persons of ordinary intelligence of the prohibited conduct, or (2) encourages arbitrary and discriminatory enforcement. See, e. g., Grayned v. City of Rockford, 408 U. S. 104, 108 (1972).

          140

          The plurality relies primarily upon the first of these aspects. Since, it reasons, "the loitering is the conduct that the ordinance is designed to prohibit," and "an officer may issue an order only after prohibited conduct has already occurred," ante, at 58, 59, the order to disperse cannot itself serve "to apprise persons of ordinary intelligence of the prohibited conduct." What counts for purposes of vagueness analysis, however, is not what the ordinance is "designed to prohibit," but what it actually subjects to criminal penalty. As discussed earlier, that consists of nothing but the refusal to obey a dispersal order, as to which there is no doubt of adequate notice of the prohibited conduct. The plurality's suggestion that even the dispersal order itself is unconstitutionally vague, because it does not specify how far to disperse(!), see ante, at 59, scarcely requires a response.[9] If it were true, it would render unconstitutional for vagueness many of the Presidential proclamations issued under that provision of the United States Code which requires the President, [91] before using the militia or the Armed Forces for law enforcement, to issue a proclamation ordering the insurgents to disperse. See 10 U. S. C. § 334. President Eisenhower's proclamation relating to the obstruction of court-ordered enrollment of black students in public schools at Little Rock, Arkansas, read as follows: "I . . .command all persons engaged in such obstruction of justice to cease and desist therefrom, and to disperse forthwith." Presidential Proclamation No. 3204, 3 CFR 132 (1954-1958 Comp.). See also Presidential Proclamation No. 3645, 3 CFR 103 (1964-1965 Comp.) (ordering those obstructing the civil rights march from Selma to Montgomery, Alabama, to "disperse . . . forthwith"). See also Boos v. Barry, 485 U. S. 312, 331 (1988) (rejecting overbreadth/vagueness challenge to a law allowing police officers to order congregations near foreign embassies to disperse); Cox v. Louisiana, 379 U. S. 536, 551 (1965) (rejecting vagueness challenge to the dispersal-order prong of a breach-of-the-peace statute and describing that prong as "narrow and specific").

          141

          For its determination of unconstitutional vagueness, the Court relies secondarily—and Justice O'Connor's and Justice Breyer's concurrences exclusively—upon the second aspect of that doctrine, which requires sufficient specificity to prevent arbitrary and discriminatory law enforcement. See ante, at 60 (majority opinion); ante, at 65-66 (O'Connor, J., concurring in part and concurring in judgment); ante, at 72 (Breyer, J., concurring in part and concurring in judgment). In discussing whether Chicago's ordinance meets that requirement, the Justices in the majority hide behind an artificial construct of judicial restraint. They point to the Supreme Court of Illinois' statement that the "apparent purpose" standard "provides absolute discretion to police officers to decide what activities constitute loitering," 177 Ill. 2d 440, 457, 687 N. E. 2d 53, 63 (1997), and protest that it would be wrong to construe the language of the ordinance more narrowly than did the State's highest court. Ante, at [92] 61, 63 (majority opinion); ante, at 68 (O'Connor, J., concurring in part and concurring in judgment). The "absolute discretion" statement, however, is nothing more than the Illinois Supreme Court's characterization of what the language achieved—after that court refused (as I do) to read in any limitations that the words do not fairly contain. It is not a construction of the language (to which we are bound) but a legal conclusion (to which we most assuredly are not bound).

          142

          The criteria for issuance of a dispersal order under the Chicago ordinance could hardly be clearer. First, the law requires police officers to "reasonably believ[e]" that one of the group to which the order is issued is a "criminal street gang member." This resembles a probable-cause standard, and the Chicago Police Department's General Order 92-4 (1992)—promulgated to govern enforcement of the ordinance—makes the probable-cause requirement explicit.[10] Under the Order, officers must have probable cause to believe that an individual is a member of a criminal street gang, to be substantiated by the officer's "experience and knowledge of the alleged offenders" and by "specific, documented and reliable information" such as reliable witness testimony or an individual's admission of gang membership or display of distinctive colors, tattoos, signs, or other markings worn by members of particular criminal street gangs. App. to Pet. for Cert. 67a—69a, 71a—72a.

          143

          Second, the ordinance requires that the group be "remain[ing] in any one place with no apparent purpose." Justice O'Connor's assertion that this applies to "any person standing [93] in a public place," ante, at 66, is a distortion. The ordinance does not apply to "standing," but to "remain[ing]"— a term which in this context obviously means "[to] endure or persist," see American Heritage Dictionary 1525 (1992). There may be some ambiguity at the margin, but "remain[ing] in one place" requires more than a temporary stop, and is clear in most of its applications, including all of those represented by the facts surrounding respondents' arrests described supra, at 82-83.

          144

          As for the phrase "with no apparent purpose": Justice O'Connor again distorts this adjectival phrase, by separating it from the word that it modifies. "[A]ny person standing on the street," her concurrence says, "has a general `purpose'—even if it is simply to stand," and thus "the ordinance permits police officers to choose which purposes are permissible. " Ante, at 66. But Chicago police officers enforcing the ordinance are not looking for people with no apparent purpose (who are regrettably in oversupply); they are looking for people who "remain in any one place with no apparent purpose"—that is, who remain there without any apparent reason for remaining there. That is not difficult to perceive.[11]

          145

          The Court's attempt to demonstrate the vagueness of the ordinance produces the following peculiar statement: "The `no apparent purpose' standard for making [the decision to [94] issue an order to disperse] is inherently subjective because its application depends on whether some purpose is `apparent' to the officer on the scene." Ante, at 62. In the Court's view, a person's lack of any purpose in staying in one location is presumably an objective factor, and what the ordinance requires as a condition of an order to disperse— the absence of any apparent purpose—is a subjective factor. This side of the looking glass, just the opposite is true.

          146

          Elsewhere, of course, the Court acknowledges the clear, objective commands of the ordinance, and indeed relies upon them to paint it as unfair:

          147
          "In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may—indeed, she `shall'—order them to disperse." Ante, at 60.
          148

           

          149

          Quite so. And the fact that this clear instruction to the officers "reach[es] a substantial amount of innocent conduct," ibid., would be invalidating if that conduct were constitutionally protected against abridgment, such as speech or the practice of religion. Remaining in one place is not so protected, and so (as already discussed) it is up to the citizens of Chicago—not us—to decide whether the trade-off is worth it.[12]

          150

          [95] Justice Breyer's concurrence tries to perform the impossible feat of affirming our unquestioned rule that a criminal statute that is so vague as to give constitutionally inadequate notice to some violators may nonetheless be enforced against those whose conduct is clearly covered, see ante, at 71-72, citing Parker v. Levy, 417 U. S. 733 (1974), while at the same time asserting that a statute which "delegates too much discretion to a police officer" is invalid in all its applications, even where the officer uses his discretion "wisely," ante, at 71. But the vagueness that causes notice to be inadequate is the very same vagueness that causes "too much discretion" to be lodged in the enforcing officer. Put another way: A law that gives the policeman clear guidance in all cases gives the public clear guidance in all cases as well. Thus, what Justice Breyer gives with one hand, he takes away with the other. In his view, vague statutes that nonetheless give adequate notice to some violators are not unenforceable against those violators because of inadequate notice, but are unenforceable against them "because the policeman enjoys too much discretion in every case," ibid. This is simply contrary to our case law, including Parker v. Levy, supra.[13]

          151

          [96]

          152
          V
          153

           

          154

          The plurality points out that Chicago already has several laws that reach the intimidating and unlawful gang-related conduct the ordinance was directed at. See ante, at 52, n. 17. The problem, of course, well recognized by Chicago's city council, is that the gang members cease their intimidating and unlawful behavior under the watchful eye of police officers, but return to it as soon as the police drive away. The only solution, the council concluded, was to clear the streets of congregations of gangs, their drug customers, and their associates.

          155

          Justice O'Connor's concurrence proffers the same empty solace of existing laws useless for the purpose at hand, see ante, at 67, 67-68, but seeks to be helpful by suggesting some measures similar to this ordinance that would be constitutional. It says that Chicago could, for example, enact a law that "directly prohibit[s] the presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways, that intimidates residents." Ante, at 67 (internal quotation marks omitted). (If the majority considers the present ordinance too vague, it would be fun to see what it makes of "a large collection of obviously brazen, insistent, and lawless gang members.") This prescription of the concurrence is largely a quotation from the plurality—which itself answers the concurrence's suggestion that such a law would be helpful by pointing out that the city already "has several laws that serve this purpose." Ante, at 52, n. 17 (plurality opinion) (citing extant laws against "intimidation," "street gang criminal drug conspiracy," and "mob action"). The problem, again, is that the intimidation and lawlessness do not occur when the police are in sight.

          156

          [97] Justice O'Connor's concurrence also proffers another cure: "If the ordinance applied only to persons reasonably believed to be gang members, this requirement might have cured the ordinance's vagueness because it would have directed the manner in which the order was issued by specifying to whom the order could be issued." Ante, at 66 (the Court agrees that this might be a cure, see ante, at 62). But the ordinance already specifies to whom the order can be issued: persons remaining in one place with no apparent purpose in the company of a gang member. And if "remain[ing] in one place with no apparent purpose" is so vague as to give the police unbridled discretion in controlling the conduct of nongang members, it surpasses understanding how it ceases to be so vague when applied to gang members alone. Surely gang members cannot be decreed to be outlaws, subject to the merest whim of the police as the rest of us are not.

          157
           
          158
          * * *
          159

           

          160

          The fact is that the present ordinance is entirely clear in its application, cannot be violated except with full knowledge and intent, and vests no more discretion in the police than innumerable other measures authorizing police orders to preserve the public peace and safety. As suggested by their tortured analyses, and by their suggested solutions that bear no relation to the identified constitutional problem, the majority's real quarrel with the Chicago ordinance is simply that it permits (or indeed requires) too much harmless conduct by innocent citizens to be proscribed. As Justice O'Connor's concurrence says with disapprobation, "the ordinance applies to hundreds of thousands of persons who are not gang members, standing on any sidewalk or in any park, coffee shop, bar, or other location open to the public." Ante, at 66 (internal quotation marks omitted).

          161

          But in our democratic system, how much harmless conduct to proscribe is not a judgment to be made by the courts. So long as constitutionally guaranteed rights are not affected, [98] and so long as the proscription has a rational basis, all sorts of perfectly harmless activity by millions of perfectly innocent people can be forbidden—riding a motorcycle without a safety helmet, for example, starting a campfire in a national forest, or selling a safe and effective drug not yet approved by the Food and Drug Administration. All of these acts are entirely innocent and harmless in themselves, but because of the risk of harm that they entail, the freedom to engage in them has been abridged. The citizens of Chicago have decided that depriving themselves of the freedom to "hang out" with a gang member is necessary to eliminate pervasive gang crime and intimidation—and that the elimination of the one is worth the deprivation of the other. This Court has no business second-guessing either the degree of necessity or the fairness of the trade.

          162

          I dissent from the judgment of the Court.

          163

          Justice Thomas, with whom The Chief Justice and Justice Scalia join, dissenting.

          164

          The duly elected members of the Chicago City Council enacted the ordinance at issue as part of a larger effort to prevent gangs from establishing dominion over the public streets. By invalidating Chicago's ordinance, I fear that the Court has unnecessarily sentenced law-abiding citizens to lives of terror and misery. The ordinance is not vague. "[A]ny fool would know that a particular category of conduct would be within [its] reach." Kolender v. Lawson, 461 U. S. 352, 370 (1983) (White, J.,dissenting). Nor does it violate the Due Process Clause. The asserted "freedom to loiter for innocent purposes," ante, at 53 (plurality opinion), is in no way "`deeply rooted in this Nation's history and tradition,' " Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (citation omitted). I dissent.

          165
           
          166
          I
          167

           

          168

          The human costs exacted by criminal street gangs are inestimable. In many of our Nation's cities, gangs have "[v]irtually [99] overtak[en] certain neighborhoods, contributing to the economic and social decline of these areas and causing fear and lifestyle changes among law-abiding residents." U. S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Assistance, Monograph: Urban Street Gang Enforcement 3 (1997). Gangs fill the daily lives of many of our poorest and most vulnerable citizens with a terror that the Court does not give sufficient consideration, often relegating them to the status of prisoners in their own homes. See U. S. Dept. of Justice, Attorney General's Report to the President, Coordinated Approach to the Challenge of Gang Violence: A Progress Report 1 (Apr. 1996) ("From the small business owner who is literally crippled because he refuses to pay `protection' money to the neighborhood gang, to the families who are hostages within their homes, living in neighborhoods ruled by predatory drug trafficking gangs, the harmful impact of gang violence . . . is both physically and psychologically debilitating").

          169

          The city of Chicago has suffered the devastation wrought by this national tragedy. Last year, in an effort to curb plummeting attendance, the Chicago Public Schools hired dozens of adults to escort children to school. The youngsters had become too terrified of gang violence to leave their homes alone. Martinez, Parents Paid to Walk Line Between Gangs and School, Chicago Tribune, Jan. 21, 1998, p. 1. The children's fears were not unfounded. In 1996, the Chicago Police Department estimated that there were 132 criminal street gangs in the city. Illinois Criminal Justice Information Authority, Research Bulletin: Street Gangs and Crime 4 (Sept. 1996). Between 1987 and 1994, these gangs were involved in 63,141 criminal incidents, including 21,689 nonlethal violent crimes and 894 homicides. Id., at 4-5.[1] Many [100] of these criminal incidents and homicides result from gang "turf battles," which take place on the public streets and place innocent residents in grave danger. See U. S. Dept. of Justice, Office of Justice Programs, National Institute of Justice, Research in brief, C. Block & R. Block, Street Gang Crime in Chicago 1 (Dec. 1993); U. S. Dept. of Justice, Office of Juvenile Justice and Delinquency Prevention, Juvenile Justice Journal, J. Howell, Youth Gang Drug Trafficking and Homicide: Policy and Program Implications (Dec. 1997); see also Testimony of Steven R. Wiley, Chief, Violent Crimes and Major Offenders Section, FBI, Hearing on S. 54 before the Senate Committee on the Judiciary, 105th Cong., 1st Sess., 13 (1997) ("While street gangs may specialize in entrepreneurial activities like drug-dealing, their gang-related lethal violence is more likely to grow out of turf conflicts").

          170

          Before enacting its ordinance, the Chicago City Council held extensive hearings on the problems of gang loitering. Concerned citizens appeared to testify poignantly as to how gangs disrupt their daily lives. Ordinary citizens like Ms. D'Ivory Gordon explained that she struggled just to walk to work:

          171

          "When I walk out my door, these guys are out there . . . .

          172

          . . . . .

          173
          "They watch you. . . . They know where you live. They know what time you leave, what time you come home. I am afraid of them. I have even come to the point now that I carry a meat cleaver to work with me . . . .
          174
          ". . . I don't want to hurt anyone, and I don't want to be hurt. We need to clean these corners up. Clean these communities up and take it back from them." Transcript of Proceedings before the City Council of [101] Chicago, Committee on Police and Fire 66-67 (May 15, 1992) (hereinafter Transcript).
          175

           

          176

          Eighty-eight-year-old Susan Mary Jackson echoed her sentiments, testifying: "We used to have a nice neighborhood. We don't have it anymore . . . . I am scared to go out in the daytime. . . . [Y]ou can't pass because they are standing. I am afraid to go to the store. I don't go to the store because I am afraid. At my age if they look at me real hard, I be ready to holler." Id., at 93-95. Another long-time resident testified:

          177
          "I have never had the terror that I feel everyday when I walk down the streets of Chicago. . . .
          178

          . . . . .

          179
          "I have had my windows broken out. I have had guns pulled on me. I have been threatened. I get intimidated on a daily basis, and it's come to the point where I say, well, do I go out today. Do I put my ax in my briefcase. Do I walk around dressed like a bum so I am not looking rich or got any money or anything like that." Id., at 124-125.
          180

           

          181

          Following these hearings, the council found that "criminal street gangs establish control over identifiable areas . . . by loitering in those areas and intimidating others from entering those areas." App. to Pet. for Cert. 60a. It further found that the mere presence of gang members "intimidate[s] many law abiding citizens" and "creates a justifiable fear for the safety of persons and property in the area." Ibid. It is the product of this democratic process—the council's attempt to address these social ills—that we are asked to pass judgment upon today.

          182
           
          183
          II
          184

           

          185

          As part of its ongoing effort to curb the deleterious effects of criminal street gangs, the citizens of Chicago sensibly decided to return to basics. The ordinance does nothing more than confirm the well-established principle that the police [102] have the duty and the power to maintain the public peace, and, when necessary, to disperse groups of individuals who threaten it. The plurality, however, concludes that the city's commonsense effort to combat gang loitering fails constitutional scrutiny for two separate reasons—because it infringes upon gang members' constitutional right to "loiter for innocent purposes," ante, at 53, and because it is vague on its face, ante, at 55. A majority of the Court endorses the latter conclusion. I respectfully disagree.

          186
           
          187
          A
          188

           

          189

          We recently reconfirmed that "[o]ur Nation's history, legal traditions, and practices . . . provide the crucial `guide posts for responsible decision-making' . . . that direct and restrain our exposition of the Due Process Clause." Glucksberg, 521 U. S., at 721 (quoting Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion)). Only laws that infringe "those fundamental rights and liberties which are, objectively, `deeply rooted in this Nation's history and tradition' " offend the Due Process Clause. Glucksberg, supra, at 720-721.

          190

          The plurality asserts that "the freedom to loiter for innocent purposes is part of the `liberty' protected by the Due Process Clause of the Fourteenth Amendment." Ante, at 53. Yet it acknowledges—as it must—that "antiloitering ordinances have long existed in this country." Ante, at 53, n. 20; see also 177 Ill. 2d 440, 450, 687 N. E. 2d 53, 60 (1997) (case below) ("Loitering and vagrancy statutes have been utilized throughout American history in an attempt to prevent crime by removing `undesirable persons' from public before they have the opportunity to engage in criminal activity"). In derogation of the framework we articulated only two Terms ago in Glucksberg, the plurality asserts that this history fails to "persuad[e] us that the right to engage in loitering that is entirely harmless . . . is not a part of the liberty protected by the Due Process Clause." Ante, at 54, [103] n. 20. Apparently, the plurality believes it sufficient to rest on the proposition that antiloitering laws represent an anachronistic throwback to an earlier, less sophisticated, era. For example, it expresses concern that some antivagrancy laws carried the penalty of slavery. Ibid. But this fact is irrelevant to our analysis of whether there is a constitutional right to loiter for innocent purposes. This case does not involve an antiloitering law carrying the penalty of slavery. The law at issue in this case criminalizes the failure to obey a police officer's order to disperse and imposes modest penalties, such as a fine of up to $500 and a prison sentence of up to six months.

          191

          The plurality's sweeping conclusion that this ordinance infringes upon a liberty interest protected by the Fourteenth Amendment's Due Process Clause withers when exposed to the relevant history: Laws prohibiting loitering and vagrancy have been a fixture of Anglo-American law at least since the time of the Norman Conquest. See generally C. Ribton-Turner, A History of Vagrants and Vagrancy and Beggars and Begging (reprint 1972) (discussing history of English vagrancy laws); see also Papachristou v. Jacksonville, 405 U. S. 156, 161-162 (1972) (recounting history of vagrancy laws). The American colonists enacted laws modeled upon the English vagrancy laws, and at the time of the founding, state and local governments customarily criminalized loitering and other forms of vagrancy.[2] Vagrancy laws [104] were common in the decades preceding the ratification of the Fourteenth Amendment,[3] and remained on the books long after.[4]

          192

          [105] Tellingly, the plurality cites only three cases in support of the asserted right to "loiter for innocent purposes." See ante, at 53-54. Of those, only one—decided more than 100 years after the ratification of the Fourteenth Amendment— actually addressed the validity of a vagrancy ordinance. That case, Papachristou, supra, contains some dicta that can be read to support the fundamental right that the plurality asserts.[5] However, the Court in Papachristou did not undertake the now-accepted analysis applied in substantive due process cases—it did not look to tradition to define the rights protected by the Due Process Clause. In any event, a careful reading of the opinion reveals that the Court never said anything about a constitutional right. The Court's holding was that the antiquarian language employed in the vagrancy ordinance at issue was unconstitutionally vague. See id., at 162-163. Even assuming, then, that Papachristou was correctly decided as an original matter—a doubtful proposition—it [106] does not compel the conclusion that the Constitution protects the right to loiter for innocent purposes. The plurality's contrary assertion calls to mind the warning that "[t]he Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution. . . . [We] should be extremely reluctant to breathe still further substantive content into the Due Process Clause so as to strike down legislation adopted by a State or city to promote its welfare." Moore, 431 U. S., at 544 (White, J., dissenting). When "the Judiciary does so, it unavoidably pre-empts for itself another part of the governance of the country without express constitutional authority." Ibid.

          193
           
          194
          B
          195

           

          196

          The Court concludes that the ordinance is also unconstitutionally vague because it fails to provide adequate standards to guide police discretion and because, in the plurality's view, it does not give residents adequate notice of how to conform their conduct to the confines of the law. I disagree on both counts.

          197
           
          198
          1
          199

           

          200

          At the outset, it is important to note that the ordinance does not criminalize loitering per se. Rather, it penalizes loiterers' failure to obey a police officer's order to move along. A majority of the Court believes that this scheme vests too much discretion in police officers. Nothing could be further from the truth. Far from according officers too much discretion, the ordinance merely enables police officers to fulfill one of their traditional functions. Police officers are not, and have never been, simply enforcers of the criminal law. They wear other hats—importantly, they have long been vested with the responsibility for preserving the public peace. See, e. g., O. Allen, Duties and Liabilities of Sheriffs [107] 59 (1845) ("As the principal conservator of the peace in his county, and as the calm but irresistible minister of the law, the duty of the Sheriff is no less important than his authority is great"); E. Freund, Police Power § 86, p. 87 (1904) ("The criminal law deals with offenses after they have been committed, the police power aims to prevent them. The activity of the police for the prevention of crime is partly such as needs no special legal authority"). Nor is the idea that the police are also peace officers simply a quaint anachronism. In most American jurisdictions, police officers continue to be obligated, by law, to maintain the public peace.[6]

          201

          In their role as peace officers, the police long have had the authority and the duty to order groups of individuals who threaten the public peace to disperse. For example, the 1887 police manual for the city of New York provided:

          202
          [108] "It is hereby made the duty of the Police Force at all times of day and night, and the members of such Force are hereby there unto empowered, to especially preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages, and assemblages which obstruct the free passage of public streets, side- walks, parks and places. " Manual Containing the Rules and Regulations of the Police Department of the City of New York, Rule 414 (emphasis added).
          203

           

          204

          See also J. Crocker, Duties of Sheriffs, Coroners and Constables § 48, p. 33 (2d ed. rev. 1871) ("Sheriffs are, ex officio, conservators of the peace within their respective counties, and it is their duty, as well as that of all constables, coroners, marshals and other peace officers, to prevent every breach of the peace, and to suppress every unlawful assembly, affray or riot which may happen in their presence" (emphasis added)). The authority to issue dispersal orders continues to play a commonplace and crucial role in police operations, particularly in urban areas.[7] Even the ABA Standards for [109] Criminal Justice recognize that "[i]n day-to-day police experience there are innumerable situations in which police are called upon to order people not to block the sidewalk, not to congregate in a given place, and not to `loiter' . . . . The police may suspect the loiterer of considering engaging in some form of undesirable conduct that can be at least temporarily frustrated by ordering him or her to `move on.' " Standard 1-3.4(d), p. 1.88, and comments (2d ed. 1980, Supp. 1986).[8]

          205

          In order to perform their peacekeeping responsibilities satisfactorily, the police inevitably must exercise discretion. Indeed, by empowering them to act as peace officers, the law assumes that the police will exercise that discretion responsibly and with sound judgment. That is not to say that the law should not provide objective guidelines for the police, but simply that it cannot rigidly constrain their every action. By directing a police officer not to issue a dispersal order unless he "observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place," App. to Pet. for Cert. 61a, Chicago's ordinance strikes an appropriate balance between those two extremes. Just as we trust officers to rely on their experience and expertise in order to make spur-of-the-moment determinations about amorphous legal standards such as "probable cause" [110] and "reasonable suspicion," so we must trust them to determine whether a group of loiterers contains individuals (in this case members of criminal street gangs) whom the city has determined threaten the public peace. See Ornelas v. United States, 517 U. S. 690, 695, 700 (1996) ("Articulating precisely what `reasonable suspicion' and `probable cause' mean is not possible. They are commonsense, nontechnical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. . . . [O]ur cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists" (citations and internal quotation marks omitted)). In sum, the Court's conclusion that the ordinance is impermissibly vague because it "`necessarily entrusts lawmaking to the momentto-moment judgment of the policeman on his beat,' " ante, at 60, cannot be reconciled with common sense, longstanding police practice, or this Court's Fourth Amendment jurisprudence.

          206

          The illogic of the Court's position becomes apparent when it opines that the ordinance's dispersal provision "would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect, or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members." Ante, at 62 (footnote omitted). See also ante, at 67 (O'Connor, J., concurring in part and concurring in judgment) (endorsing Court's proposal). With respect, if the Court believes that the ordinance is vague as written, this suggestion would not cure the vagueness problem. First, although the Court has suggested that a scienter requirement may mitigate a vagueness problem "with respect to the adequacy of notice to the complainant that his conduct is proscribed," Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982) (footnote omitted), the alternative proposal does not incorporate a scienter requirement. If the ordinance's prohibition were limited [111] to loitering with "an apparently harmful purpose," the criminality of the conduct would continue to depend on its external appearance, rather than the loiterer's state of mind. See Black's Law Dictionary 1345 (6th ed. 1990) (scienter "is frequently used to signify the defendant's guilty knowledge"). For this reason, the proposed alternative would neither satisfy the standard suggested in Hoffman Estates nor serve to channel police discretion. Indeed, an ordinance that required officers to ascertain whether a group of loiterers have "an apparently harmful purpose" would require them to exercise more discretion, not less. Furthermore, the ordinance in its current form—requiring the dispersal of groups that contain at least one gang member—actually vests less discretion in the police than would a law requiring that the police disperse groups that contain only gang members. Currently, an officer must reasonably suspect that one individual is a member of a gang. Under the plurality's proposed law, an officer would be required to make such a determination multiple times.

          207

          In concluding that the ordinance adequately channels police discretion, I do not suggest that a police officer enforcing the Gang Congregation Ordinance will never make a mistake. Nor do I overlook the possibility that a police officer, acting in bad faith, might enforce the ordinance in an arbitrary or discriminatory way. But our decisions should not turn on the proposition that such an event will be anything but rare. Instances of arbitrary or discriminatory enforcement of the ordinance, like any other law, are best addressed when (and if) they arise, rather than prophylactically through the disfavored mechanism of a facial challenge on vagueness grounds. See United States v. Salerno, 481 U. S. 739, 745 (1987) ("A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid").

          208

          [112]

          209
          2
          210

           

          211

          The plurality's conclusion that the ordinance "fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted," ante, at 60, is similarly untenable. There is nothing "vague" about an order to disperse.[9] While "we can never expect mathematical certainty from our language," Grayned v. City of Rockford, 408 U. S. 104, 110 (1972), itis safe to assume that the vast majority of people who are ordered by the police to "disperse and remove themselves from the area" will have little difficulty understanding how to comply. App. to Pet. for Cert. 61a.

          212

          Assuming that we are also obligated to consider whether the ordinance places individuals on notice of what conduct might subject them to such an order, respondents in this facial challenge bear the weighty burden of establishing that the statute is vague in all its applications, "in the sense that no standard of conduct is specified at all." Coates v. Cincinnati, 402 U. S. 611, 614 (1971). I subscribe to the view of retired Justice White—"If any fool would know that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law, the enactment is not unconstitutional on its face." Kolender, 461 U. S., at 370-371 (dissenting opinion). This is certainly such a case. As the Illinois Supreme Court recognized, "persons of ordinary intelligence may maintain a common and accepted [113] meaning of the word `loiter.' " 177 Ill. 2d, at 451, 687 N. E. 2d, at 61.

          213

          Justice Stevens' contrary conclusion is predicated primarily on the erroneous assumption that the ordinance proscribes large amounts of constitutionally protected and/or innocent conduct. See ante, at 55, 56-57, 60. As already explained, supra, at 102-106, the ordinance does not proscribe constitutionally protected conduct—there is no fundamental right to loiter. It is also anomalous to characterize loitering as "innocent" conduct when it has been disfavored throughout American history. When a category of conduct has been consistently criminalized, it can hardly be considered "innocent." Similarly, when a term has long been used to describe criminal conduct, the need to subject it to the "more stringent vagueness test" suggested in Hoffman Estates, 455 U. S., at 499, dissipates, for there is no risk of a trap for the unwary. The term "loiter" is no different from terms such as "fraud," "bribery," and "perjury." We expect people of ordinary intelligence to grasp the meaning of such legal terms despite the fact that they are arguably imprecise.[10]

          214

          The plurality also concludes that the definition of the term loiter—"to remain in any one place with no apparent purpose," [114] see 177 Ill.2d, at 445, 687 N. E. 2d, at 58—fails to provide adequate notice.[11] "It is difficult to imagine," the plurality posits, "how any citizen of the city of Chicago standing in a public place . . .would know if he or she had an `apparent purpose.' " Ante, at 56-57. The plurality underestimates the intellectual capacity of the citizens of Chicago. Persons of ordinary intelligence are perfectly capable of evaluating how outsiders perceive their conduct, and here "[i]t is self-evident that there is a whole range of conduct that anyone with at least a semblance of common sense would know is [loitering] and that would be covered by the statute." See Smith v. Goguen, 415 U. S. 566, 584 (1974) (White, J., concurring in judgment). Members of a group standing on the corner staring blankly into space, for example, are likely well aware that passersby would conclude that they have "no apparent purpose." In any event, because this is a facial challenge, the plurality's ability to hypothesize that some individuals, in some circumstances, may be unable to ascertain how their actions appear to outsiders is irrelevant to our analysis. Here, we are asked to determine whether the ordinance is "vague in all of its applications." Hoffman Estates, supra, at 497. The answer is unquestionably no.

          215
           
          216
          * * *
          217

           

          218

          Today, the Court focuses extensively on the "rights" of gang members and their companions. It can safely do so— the people who will have to live with the consequences of [115] today's opinion do not live in our neighborhoods. Rather, the people who will suffer from our lofty pronouncements are people like Ms. Susan Mary Jackson; people who have seen their neighborhoods literally destroyed by gangs and violence and drugs. They are good, decent people who must struggle to overcome their desperate situation, against all odds, in order to raise their families, earn a living, and remain good citizens. As one resident described: "There is only about maybe one or two percent of the people in the city causing these problems maybe, but it's keeping 98 percent of us in our houses and off the streets and afraid to shop." Transcript 126. By focusing exclusively on the imagined "rights" of the two percent, the Court today has denied our most vulnerable citizens the very thing that Justice Stevens, ante, at 54, elevates above all else—the "`freedom of movement.' " And that is a shame. I respectfully dissent.

          219

          [*] Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Waxman, Deputy Solicitor General Underwood, and James A. Feldman; for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, Robert C. Maier, and David M. Gormley, and by the Attorneys General for their respective jurisdictions as follows: William H. Pryor, Jr., of Alabama, Bruce M. Botelho of Alaska, Grant Woods of Arizona, Daniel E. Lungren of California, Gale A. Norton of Colorado, John M. Bailey of Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Michael C. Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, D. Michael Fisher of Pennsylvania, Carlos Lugo-Fiol of Puerto Rico, Jeffrey B. Pine of Rhode Island, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Jan Graham of Utah, Julio A. Brady of the Virgin Islands, and Mark O. Earley of Virginia; for the Center for the Community Interest by Richard K. Willard and Roger L. Conner; for the Chicago Neighborhood Organizations by Michele L. Odorizzi and Jeffrey W. Sarles; for the Los Angeles County District Attorney by Gil Garcetti pro se, and Brent Dail Riggs; for the National District Attorneys Association et al. by Kristin Linsley Myles, Daniel P. Collins, William L. Murphy, and Wayne W. Schmidt; for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp; and for the U. S. Conference of Mayors et al. by Richard Ruda, Miguel A. Estrada, and Mark A. Perry.

          220

          Briefs of amicus curiae urging affirmance were filed for the Chicago Alliance for Neighborhood Safety et al. by Stephen J. Schulhofer and Randolph N. Stone; for the Illinois Attorneys for Criminal Justice by Robert Hirschhorn and Steven A. Greenberg; for the National Association of Criminal Defense Lawyers by David M. Porter; for the National Black Police Association et al. by Elaine R. Jones, Theodore M. Shaw, George H. Kendall, Laura E. Hankins, Marc O. Beem, and Diane F. Klotnia; for the National Law Center on Homelessness & Poverty et al. by Robert M. Bruskin; and for See Forever/the Maya Angelou Public Charter School et al. by Louis R. Cohen, John Payton, and James Forman, Jr.

          221

          [1] The findings are quoted in full in the opinion of the Supreme Court of Illinois. 177 Ill. 2d 440, 445, 687 N. E. 2d 53, 58 (1997). Some of the evidence supporting these findings is quoted in Justice Thomas' dissenting opinion. Post, at 100-101.

          222

          [2] The ordinance states in pertinent part:

          223

          "(a) 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 to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section.

          224

          "(b) It shall be an affirmative defense to an alleged violation of this section that no person who was observed loitering was in fact a member of a criminal street gang.

          225

          "(c) As used in this Section:

          226

          "(1) `Loiter' means to remain in any one place with no apparent purpose.

          227

          "(2) `Criminal street gang' means any ongoing organization, association in fact or group of three or more persons, whether formal or informal, having as one of its substantial activities the commission of one or more of the criminal acts enumerated in paragraph (3), and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.

          228

          . . . . .

          229

          "(5) `Public place' means the public way and any other location open to the public, whether publicly or privately owned.

          230

          "(e) Any person who violates this Section is subject to a fine of not less than $100 and not more than $500 for each offense, or imprisonment for not more than six months, or both.

          231

          "In addition to or instead of the above penalties, any person who violates this section may be required to perform up to 120 hours of community service pursuant to section 1-4—120 of this Code." Chicago Municipal Code § 8-4—015 (added June 17, 1992), reprinted in App. to Pet. for Cert. 61a—63a.

          232

          [3] As the Illinois Supreme Court noted, during the hearings preceding the adoption of the ordinance, "representatives of the Chicago law and police departments informed the city counsel that any limitations on the discretion police have in enforcing the ordinance would be best developed through police policy, rather than placing such limitations into the ordinance itself." 177 Ill. 2d, at 446, 687 N. E. 2d, at 58-59.

          233

          [4] Presumably, these officers would also be able to arrest all nongang members who violate the ordinance.

          234

          [5] Tr. of Oral Arg. 22-23.

          235

          [6] The city began enforcing the ordinance on the effective date of the general order in August 1992 and stopped enforcing it in December 1995, when it was held invalid in Chicago v. Youkhana, 277 Ill. App. 3d 101, 660 N. E. 2d 34 (1995). Tr. of Oral Arg. 43.

          236

          [7] Brief for Petitioner 16. There were 5,251 arrests under the ordinance in 1993, 15,660 in 1994, and 22,056 in 1995. City of Chicago, R. Daley & T. Hillard, Gang and Narcotic Related Violent Crime: 1993-1997, p. 7 (June 1998).

          237

          The city believes that the ordinance resulted in a significant decline in gang-related homicides. It notes that in 1995, the last year the ordinance was enforced, the gang-related homicide rate fell by 26%. In 1996, after the ordinance had been held invalid, the gang-related homicide rate rose 11%. Pet. for Cert. 9, n. 5. However, gang-related homicides fell by 19% in 1997, over a year after the suspension of the ordinance. Daley & Hillard, at 5. Given the myriad factors that influence levels of violence, it is difficult to evaluate the probative value of this statistical evidence, or to reach any firm conclusion about the ordinance's efficacy. Cf. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style, 97 Mich. L. Rev. 291, 296 (1998) (describing the "hotly contested debate raging among . . . experts over the causes of the decline in crime in New York City and nationally").

          238

          [8] See Poulos, Chicago's Ban on Gang Loitering: Making Sense of Vagueness and Overbreadth in Loitering Laws, 83 Calif. L. Rev. 379, 384, n. 26 (1995).

          239

          [9] Chicago v. Youkhana, Nos. 93 MCI 293363 et al. (Ill. Cir. Ct., Cook Cty., Sept. 29, 1993), App. to Pet. for Cert. 45a. The court also concluded that the ordinance improperly authorized arrest on the basis of a person's status instead of conduct and that it was facially overbroad under the First Amendment to the Federal Constitution and Art. I, § 5, of the Illinois Constitution. Id., at 59a.

          240

          [10] Chicago v. Youkhana, 277 Ill. App. 3d 101, 660 N. E. 2d 34 (1995).

          241

          [11] Chicago v. Ramsey, Nos. 1-93-4125 et al. (Ill. App., Dec. 29, 1995), App. to Pet. for Cert. 39a.

          242

          [12] Chicago v. Morales, Nos. 1-93-4039 et al. (Ill. App., Dec. 29, 1995), App. to Pet. for Cert. 37a.

          243

          [13] Chicago v. Youkhana, 277 Ill. App. 3d, at 106, 660 N. E. 2d, at 38; id., at 112, 660 N. E. 2d, at 41; id., at 113, 660 N. E. 2d, at 42.

          244

          [14] "The ordinance defines `loiter' to mean `to remain in any one place with no apparent purpose.' Chicago Municipal Code § 8-4—015(c)(1) (added June 17, 1992). People with entirely legitimate and lawful purposes will not always be able to make their purposes apparent to an observing police officer. For example, a person waiting to hail a taxi, resting on a corner during a jog, or stepping into a doorway to evade a rain shower has a perfectly legitimate purpose in all these scenarios; however, that purpose will rarely be apparent to an observer." 177 Ill. 2d, at 451— 452, 687 N. E. 2d, at 60-61.

          245

          [15] It stated: "Although the proscriptions of the ordinance are vague, the city council's intent in its enactment is clear and unambiguous. The city has declared gang members a public menace and determined that gang members are too adept at avoiding arrest for all the other crimes they commit. Accordingly, the city council crafted an exceptionally broad ordinance which could be used to sweep these intolerable and objectionable gang members from the city streets." Id., at 458, 687 N. E. 2d, at 64.

          246

          [16] Brief for Petitioner 14.

          247

          [17] In fact the city already has several laws that serve this purpose. See, e. g., Ill. Comp. Stat., ch. 720 §§ 5/12-6 (1998) (intimidation); 570/405.2 (streetgang criminal drug conspiracy); 147/1 et seq. (Illinois Streetgang Terrorism Omnibus Prevention Act); 5/25-1 (mob action). Deputy Superintendent Cooper, the only representative of the police department at the Committee on Police and Fire hearing on the ordinance, testified that, of the kinds of behavior people had discussed at the hearing, "90 percent of those instances are actually criminal offenses where people, in fact, can be arrested." Record, Appendix II to plaintiff's Memorandum in Opposition to Motion to Dismiss 182 (Tr. of Proceedings, Chicago City Council Committee on Police and Fire, May 18, 1992).

          248

          [18] Brief for Petitioner 17.

          249

          [19] See Brief for United States as Amicus Curiae 23: "We do not doubt that, under the Due Process Clause, individuals in this country have significant liberty interests in standing on sidewalks and in other public places, and in traveling, moving, and associating with others." The city appears to agree, at least to the extent that such activities include "social gatherings." Brief for Petitioner 21, n. 13. Both Justice Scalia, post, at 83-86 (dissenting opinion), and Justice Thomas, post, at 102-106 (dissenting opinion), not only disagree with this proposition, but also incorrectly assume (as the city does not, see Brief for Petitioner 44) that identification of an obvious liberty interest that is impacted by a statute is equivalent to finding a violation of substantive due process. See n. 35, infra.

          250

          [20] Petitioner cites historical precedent against recognizing what it describes as the "fundamental right to loiter." Brief for Petitioner 12. While antiloitering ordinances have long existed in this country, their pedigree does not ensure their constitutionality. In 16th-century England, for example, the "`Slavery acts' " provided for a 2-year enslavement period for anyone who "`liveth idly and loiteringly, by the space of three days.' " Note, Homelessness in a Modern Urban Setting, 10 Ford. Urb. L. J. 749, 754, n. 17 (1982). In Papachristou we noted that many American vagrancy laws were patterned on these "Elizabethan poor laws." 405 U. S., at 161-162. These laws went virtually unchallenged in this country until attorneys became widely available to the indigent following our decision in Gideon v. Wainwright, 372 U. S. 335 (1963). See Recent Developments, Constitutional Attacks on Vagrancy Laws, 20 Stan. L. Rev. 782, 783 (1968). In addition, vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery. In 1865, for example, Alabama broadened its vagrancy statute to include "`any runaway, stubborn servant or child' " and "`a laborer or servant who loiters away his time, or refuses to comply with any contract for a term of service without just cause.' " T. Wilson, Black Codes of the South 76 (1965). The Reconstruction-era vagrancy laws had especially harsh consequences on African-American women and children. L. Kerber, No Constitutional Right to be Ladies: Women and the Obligations of Citizenship 50-69 (1998). Neither this history nor the scholarly compendia in Justice Thomas' dissent, post, at 102-106, persuades us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause.

          251

          [21] The freewheeling and hypothetical character of Justice Scalia's discussion of liberty is epitomized by his assumption that citizens of Chicago, who were once "free to drive about the city" at whatever speed they wished, were the ones who decided to limit that freedom by adopting a speed limit. Post, at 73. History tells quite a different story.

          252

          In 1903, the Illinois Legislature passed "An Act to regulate the speed of automobiles and other horseless conveyances upon the public streets, roads, and highways of the state of Illinois." That statute, with some exceptions, set a speed limit of 15 miles per hour. See Christy v. Elliott, 216 Ill. 31, 74 N. E. 1035 (1905). In 1900, there were 1,698,575 citizens of Chicago, 1 Twelfth Census of the United States 430 (1900) (Table 6), but only 8,000 cars (both private and commercial) registered in the entire United States. See Ward's Automotive Yearbook 230 (1990). Even though the number of cars in the country had increased to 77,400 by 1905, ibid., it seems quite clear that it was pedestrians, rather than drivers, who were primarily responsible for Illinois' decision to impose a speed limit.

          253

          [22] The burden of the first portion of Justice Scalia's dissent is virtually a facial challenge to the facial challenge doctrine. See post, at 74-83. He first lauds the "clarity of our general jurisprudence" in the method for assessing facial challenges and then states that the clear import of our cases is that, in order to mount a successful facial challenge, a plaintiff must "establish that no set of circumstances exists under which the Act would be valid." See post, at 78-79 (emphasis deleted); United States v. Salerno, 481 U. S. 739, 745 (1987). To the extent we have consistently articulated a clear standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any decision of this Court, including Salerno itself (even though the defendants in that case did not claim that the statute was unconstitutional as applied to them, see id., at 745, n. 3, the Court nevertheless entertained their facial challenge). Since we, like the Illinois Supreme Court, conclude that vagueness permeates the ordinance, a facial challenge is appropriate.

          254

          We need not, however, resolve the viability of Salerno `s dictum, because this case comes to us from a state—not a federal—court. When asserting a facial challenge, a party seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question. In this sense, the threshold for facial challenges is a species of third party (jus tertii) standing, which we have recognized as a prudential doctrine and not one mandated by Article III of the Constitution. See Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 955 (1984). When a state court has reached the merits of a constitutional claim, "invoking prudential limitations on [the respondent's] assertion of jus tertii would serve no functional purpose." City of Revere v. Massachusetts Gen. Hospital, 463 U. S. 239, 243 (1983) (internal quotation marks omitted).

          255

          Whether or not it would be appropriate for federal courts to apply the Salerno standard in some cases—a proposition which is doubtful—state courts need not apply prudential notions of standing created by this Court. See ASARCO Inc. v. Kadish, 490 U. S. 605, 618 (1989). Justice Scalia's assumption that state courts must apply the restrictive Salerno test is incorrect as a matter of law; moreover it contradicts "essential principles of federalism." See Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 284 (1994).

          256

          [23] The Solicitor General, while supporting the city's argument that the ordinance is constitutional, appears to recognize that the ordinance cannot be read literally without invoking intractable vagueness concerns. "[T]he purpose simply to stand on a corner cannot be an `apparent purpose' under the ordinance; if it were, the ordinance would prohibit nothing at all." Brief for United States as Amicus Curiae 12-13.

          257

          [24] 177 Ill. 2d, at 452, 687 N. E. 2d, at 61. One of the trial courts that invalidated the ordinance gave the following illustration: "Suppose a group of gang members were playing basketball in the park, while waiting for a drug delivery. Their apparent purpose is that they are in the park to play ball. The actual purpose is that they are waiting for drugs. Under this definition of loitering, a group of people innocently sitting in a park discussing their futures would be arrested, while the `basketball players' awaiting a drug delivery would be left alone." Chicago v. Youkhana, Nos. 93 MCI 293363 et al. (Ill. Cir. Ct., Cook Cty., Sept. 29, 1993), App. to Pet. for Cert. 48a—49a.

          258

          [25] See, e. g., Tacoma v. Luvene, 118 Wash. 2d 826, 827 P. 2d 1374 (1992) (upholding ordinance criminalizing loitering with purpose to engage in drug-related activities); People v. Superior Court, 46 Cal. 3d 381, 394-395, 758 P. 2d 1046, 1052 (1988) (upholding ordinance criminalizing loitering for the purpose of engaging in or soliciting lewd act).

          259

          [26] See, e. g., State v. Richard, 108 Nev. 626, 627, n. 2, 836 P. 2d 622, 623, n. 2 (1992) (striking down statute that made it unlawful "for any person to loiter or prowl upon the property of another without lawful business with the owner or occupant thereof").

          260

          [27] Brief for Petitioner 31.

          261

          [28] In this way, the ordinance differs from the statute upheld in Colten v. Kentucky, 407 U. S. 104, 110 (1972). There, we found that the illegality of the underlying conduct was clear. "Any person who stands in a group of persons along a highway where the police are investigating a traffic violation and seeks to engage the attention of an officer issuing a summons should understand that he could be convicted under . . . Kentucky's statute if he fails to obey an order to move on." Ibid.

          262

          [29] "Literally read . . . this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no demonstration." 382 U. S.,at 90.

          263

          [30] As we have noted in a similar context: "If petitioners were held guilty of violating the Georgia statute because they disobeyed the officers, this case falls within the rule that a generally worded statute which is construed to punish conduct which cannot constitutionally be punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and constitutionally impermissible applications of the statute." Wright v. Georgia, 373 U. S. 284, 292 (1963).

          264

          [31] This critical fact distinguishes this case from Boos v. Barry, 485 U. S. 312, 329-330 (1988). There, we noted that the text of the relevant statute, read literally,may have been void for vagueness both on notice and on discretionary enforcement grounds. We then found, however, that the Court of Appeals had "provided a narrowing construction that alleviates both of these difficulties." Ibid.

          265

          [32] It is possible to read the mandatory language of the ordinance and conclude that it affords the police no discretion, since it speaks with the mandatory "shall." However, not even the city makes this argument, which flies in the face of common sense that all police officers must use some discretion in deciding when and where to enforce city ordinances.

          266

          [33] Justice Thomas' dissent overlooks the important distinction between this ordinance and those that authorize the police "to order groups of individuals who threaten the public peace to disperse." See post, at 107.

          267

          [34] Not all of the respondents in this case, for example, are gang members. The city admits that it was unable to prove that Morales is a gang member but justifies his arrest and conviction by the fact that Morales admitted "that he knew he was with criminal street gang members." Reply Brief for Petitioner 23, n. 14. In fact, 34 of the 66 respondents in this case were charged in a document that only accused them of being in the presence of a gang member. Tr. of Oral Arg. 34, 58.

          268

          [35] This conclusion makes it unnecessary to reach the question whether the Illinois Supreme Court correctly decided that the ordinance is invalid as a deprivation of substantive due process. For this reason, Justice Thomas, see post, at 102-106, and Justice Scalia, see post, at 85-86, are mistaken when they assert that our decision must be analyzed under the framework for substantive due process set out in Washington v. Glucksberg, 521 U. S. 702 (1997).

          269

          [1] In other words, a facial attack, since it requires unconstitutionality in all circumstances, necessarily presumes that the litigant presently before the court would be able to sustain an as-applied challenge. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 495 (1982) ("A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law"); Parker v. Levy, 417 U. S. 733, 756 (1974) ("One to whose conduct a statute clearly applies may not successfully challenge it for vagueness").

          270

          The plurality asserts that in United States v. Salerno, 481 U. S. 739 (1987), which I discuss in text immediately following this footnote, the Court "entertained" a facial challenge even though "the defendants . . . did not claim that the statute was unconstitutional as applied to them." Ante, at 55, n. 22. That is not so. The Court made it absolutely clear in Salerno that a facial challenge requires the assertion that "no set of circumstances exists under which the Act would be valid," 481 U. S., at 745 (emphasis added). The footnoted statement upon which the plurality relies ("Nor have respondents claimed that the Act is unconstitutional because of the way it was applied to the particular facts of their case," id., at 745, n. 3) was obviously meant to convey the fact that the defendants were not making, in addition to their facial challenge, an alternative as-applied challenge—i. e., asserting that even if the statute was not unconstitutional in all its applications it was at least unconstitutional in its particular application to them.

          271

          [2] Salerno, a criminal case, repudiated the Court's statement in Kolender v. Lawson, 461 U. S. 352, 359, n. 8 (1983), to the effect that a facial challenge to a criminal statute could succeed "even when [the statute] could conceivably have had some valid application." Kolender seems to have confused the standard for First Amendment overbreadth challenges with the standard governing facial challenges on all other grounds. See ibid. (citing the Court's articulation of the standard for First Amendment overbreadth challenges from Hoffman Estates, supra, at 494). As Salerno noted, supra, at 745, the overbreadth doctrine is a specialized exception to the general rule for facial challenges, justified in light of the risk that an overbroad statute will chill free expression. See, e. g., Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973).

          272

          [3] The plurality asserts that the Salerno standard for facial challenge "has never been the decisive factor in any decision of this Court." Ante, at 55, n. 22. It means by that only this: in rejecting a facial challenge, the Court has never contented itself with identifying only one situation in which the challenged statute would be constitutional, but has mentioned several. But that is not at all remarkable, and casts no doubt upon the validity of the principle that Salerno and these many other cases enunciated. It is difficult to conceive of a statute that would be constitutional in only a single application—and hard to resist mentioning more than one.

          273

          The plurality contends that it does not matter whether the Salerno standard is federal law, since facial challenge is a species of third-party standing, and federal limitations upon third-party standing do not apply in an appeal from a state decision which takes a broader view, as the Illinois Supreme Court's opinion did here. Ante, at 55-56, n. 22. This is quite wrong. Disagreement over the Salerno rule is not a disagreement over the "standing" question whether the person challenging the statute can raise the rights of third parties: under both Salerno and the plurality's rule he can. The disagreement relates to how many third-party rights he must prove to be infringed by the statute before he can win: Salerno says "all" (in addition to his own rights), the plurality says "many." That is not a question of standing but of substantive law. The notion that, if Salerno is the federal rule (a federal statute is not totally invalid unless it is invalid in all its applications), it can be altered by a state court (a federal statute is totally invalid if it is invalid in many of its applications), and that that alteration must be accepted by the Supreme Court of the United States is, to put it as gently as possible, remarkable.

          274

          [4] See, e. g., Abdullah v. Commissioner of Ins. of Commonwealth of Mass., 84 F. 3d 18, 20 (CA1 1996); Deshawn E. v. Safir, 156 F. 3d 340, 347 (CA2 1998); Artway v. Attorney Gen. of State of N. J., 81 F. 3d 1235, 1252, n. 13 (CA3 1996); Manning v. Hunt, 119 F. 3d 254, 268-269 (CA4 1997); Causeway Medical Suite v. Ieyoub, 109 F. 3d 1096, 1104 (CA5), cert. denied, 522 U. S. 943 (1997); Aronson v. Akron, 116 F. 3d 804, 809 (CA6 1997); Government Suppliers Consolidating Servs., Inc. v. Bayh, 975 F. 2d 1267, 1283 (CA7 1992), cert.denied, 506 U. S. 1053 (1993);Woodis v. Westark Community College, 160 F. 3d 435, 438-439 (CA8 1998); Roulette v.Seattle, 97 F. 3d 300, 306 (CA9 1996); Public Lands Council v. Babbitt, 167 F. 3d 1287, 1293 (CA10 1999); Dimmitt v. Clearwater, 985 F. 2d 1565, 1570— 1571 (CA11 1993); Time Warner Entertainment Co. v. FCC, 93 F. 3d 957, 972 (CADC 1996).

          275

          [5] With apologies for taking creative license with the work of Messrs. Bernstein, Sondheim, and Laurents. West Side Story, copyright 1959.

          276

          [6] The plurality's explanation for ignoring these laws is that many of them carried severe penalties and, during the Reconstruction era, they had "harsh consequences on African-American women and children." Ante, at 54, n. 20. Those severe penalties and those harsh consequences are certainly regrettable, but they in no way lessen (indeed, the harshness of penalty tends to increase) the capacity of these laws to prove that loitering was never regarded as a fundamental liberty.

          277

          [7] Ante, at 53, n. 19. The plurality bases its assertion of apparent concession upon a footnote in Part I of petitioner's brief which reads: "Of course, laws regulating social gatherings affect a liberty interest, and thus are subject to review under the rubric of substantive due process . . . . We address that doctrine in Part II below." Brief for Petitioner 21-22, n. 13. If a careless reader were inclined to confuse the term "social gatherings" in this passage with "loitering," his confusion would be eliminated by pursuing the reference to Part II of the brief, which says, in its introductory paragraph: "[A]s we explain below, substantive due process does not support the court's novel holding that the Constitution secures the right to stand still on the public way even when one is not engaged in speech, assembly, or other conduct that enjoys affirmative constitutional protection." Id., at 39.

          278

          [8] The plurality says, ante, at 64, n. 35, that since it decides the case on the basis of procedural due process rather than substantive due process, I am mistaken in analyzing its opinion "under the framework for substantive due process set out in Washington v. Glucksberg. " Ibid. But I am not analyzing it under that framework. I am simply assuming that when the plurality says (as an essential part of its reasoning) that "the right to loiter for innocent purposes is . . . a part of the liberty protected by the Due Process Clause" it does not believe that the same word ("liberty") means one thing for purposes of substantive due process and something else for purposes of procedural due process. There is no authority for that startling proposition. See Board of Regents of State Colleges v. Roth, 408 U. S. 564, 572-575 (1972) (rejecting procedural-due-process claim for lack of "liberty" interest, and citing substantive-due-process cases).

          279

          The plurality's opinion seeks to have it both ways, invoking the Fourteenth Amendment's august protection of "liberty" in defining the standard of certainty that it sets, but then, in identifying the conduct protected by that high standard, ignoring our extensive case law defining "liberty," and substituting, instead, all "harmless and innocent" conduct, ante, at 58.

          280

          [9] I call it a "suggestion" because the plurality says only that the terms of the dispersal order "compound the inadequacy of the notice," and acknowledges that they "might not render the ordinance unconstitutionally vague if the definition of the forbidden conduct were clear." Ante, at 59, 59-60. This notion that a prescription ("Disperse!") which is itself not unconstitutionally vague can somehow contribute to the unconstitutional vagueness of the entire scheme is full of mystery—suspending, as it does, the metaphysical principle that nothing can confer what it does not possess (nemo dat qui non habet) .

          281

          [10] "Administrative interpretation and implementation of a regulation are . .. highly relevant to our [vagueness] analysis, for `[i]n evaluating a facial challenge to a state law, a federal court must . . . consider any limiting construction that a state court or enforcement agency has proffered.' " Ward v.Rock Against Racism, 491 U. S.781, 795-796 (1989) (emphasis added) (quoting Hoffman Estates, 455 U. S., at 494, n. 5). See also id., at 504 (administrative regulations "will often suffice to clarify a standard with an otherwise uncertain scope").

          282

          [11] Justice Breyer asserts that "one always has some apparent purpose," so that the policeman must "interpret the words `no apparent purpose' as meaning `no apparent purpose except for . . . .' " Ante, at 70. It is simply not true that "one always has some apparent purpose"—and especially not true that one always has some apparent purpose in remaining at rest, for the simple reason that one often (indeed, perhaps usually) has no actual purpose in remaining at rest. Remaining at rest will be a person's normal state, unless he has a purpose which causes him to move. That is why one frequently reads of a person's "wandering aimlessly" (which is worthy of note) but not of a person's "sitting aimlessly" (which is not remarkable at all). And that is why a synonym for "purpose" is "motive": that which causes one to move.

          283

          [12] The Court speculates that a police officer may exercise his discretion to enforce the ordinance and direct dispersal when (in the Court's view) the ordinance is inapplicable—viz., where there is an apparent purpose, but it is an unlawful one. See ante, at 62. No one in his right mind would read the phrase "without any apparent purpose" to mean anything other than "without any apparent lawful purpose." The implication that acts referred to approvingly in statutory language are "lawful" acts is routine. The Court asserts that the Illinois Supreme Court has forced it into this interpretive inanity because, since it "has not placed any limiting construction on the language in the ordinance, we must assume that the ordinance means what it says . . . ." Ante, at 63. But the Illinois Supreme Court did not mention this particular interpretive issue, which has nothing to do with giving the ordinance a "limiting" interpretation, and everything to do with giving it its ordinary legal meaning.

          284

          [13] The opinion that Justice Breyer relies on, Coates v. Cincinnati, 402 U. S. 611 (1971), discussed ante, at 72-73, did not say that the ordinance there at issue gave adequate notice but did not provide adequate standards for the police. It invalidated that ordinance on both inadequatenotice and inadequate-enforcement-standard grounds, because First Amendment rights were implicated. It is common ground, however, that the present case does not implicate the First Amendment, see ante, at 52-53 (plurality opinion); ante, at 72 (Breyer, J., concurring in part and concurring in judgment).

          285

          [1] In 1996 alone, gangs were involved in 225 homicides, which was 28 percent of the total homicides committed in the city. Chicago Police Department, Gang and Narcotic Related Violent Crime, City of Chicago: 1993-1997 (June 1998). Nationwide, law enforcement officials estimate that as many as 31,000 street gangs, with 846,000 members, exist. U. S. Dept. of Justice, Office of Justice Programs, Highlights of the 1996 National Youth Gang Survey (OJJDP Fact Sheet, No. 86, Nov. 1998).

          286

          [2] See,e. g., Act for the Restraint of idle and disorderly Persons (1784) (reprintedin 2 First Laws of the State of North Carolina 508-509 (J. Cushing comp. 1984)); Act for restraining, correcting, suppressing and punishing Rogues, Vagabonds, common Beggars, and other lewd, idle, dissolute, profane and disorderly Persons; and for setting them to work (reprintedin First Laws of the State of Connecticut 206-210 (J.Cushing comp. 1982));Act for suppressing and punishing of Rogues, Vagabonds, common Beggars and other idle, disorderly and lewd persons (1788) (reprinted in First Laws of the Commonwealth of Massachusetts 347-349 (J.Cushing comp. 1981));Act for better securing the payment of levies and restraint of vagrants, and for making provisions for the poor (1776) (reprinted in First Laws of the State of Virginia 44-45 (J. Cushing comp. 1982)); Act for the better ordering of the Police of the Town of Providence, of the Work-House in said Town (1796) (reprinted in 2 First Laws of the State of Rhode Island 362-367 (J. Cushing comp. 1983)); Act for the Promotion of Industry, and for the Suppression of Vagrants and Other Idle and Disorderly Persons (1787) (reprinted in First Laws of the State of South Carolina, Part 2, 431-433 (J. Cushing comp. 1981)); An act for the punishment of vagabond and other idle and disorderly persons (1764) (reprinted in First Laws of the State of Georgia 431-433 (J. Cushing comp. 1981)); Laws of the Colony of New York 4, ch. 1021 (1756); 1 Laws of the Commonwealth of Pennsylvania, ch. DLV (1767) (An Act to prevent the mischiefs arising from the increase of vagabonds, and other idle and disorderly persons, within this province); Laws of the State of Vermont § 10 (1797).

          287

          [3] See, e. g., Kan. Stat., ch. 161, § 1 (1855); Ky. Rev. Stat., ch. CIV, § 1 (1852); Pa. Laws, ch. 664, § V (1853); N. Y. Rev. Stat., ch. XX, § 1 (1859); Ill. Stat., ch. 30, § CXXXVIII (1857). During the 19th century, this Court acknowledged the States' power to criminalize vagrancy on several occasions. See Mayor of New York v. Miln, 11 Pet. 102, 148 (1837); Passenger Cases, 7 How. 283, 425 (1849) (opinion of Wayne, J.); Prigg v. Pennsylvania, 16 Pet. 539, 625 (1842).

          288

          [4] See generally C. Tiedeman, Limitations of Police Power in the United States 116-117 (1886) ("The vagrant has been very appropriately described as the chrysalis of every species of criminal. A wanderer through the land, without home ties, idle, and without apparent means of support, what but criminality is to be expected from such a person? If vagrancy could be successfully combated . . . the infractions of the law would be reduced to a surprisingly small number; and it is not to be wondered at that an effort is so generally made to suppress vagrancy"). See also R. I. Gen. Stat., ch. 232, § 24 (1872); Ill. Rev. Stat., ch. 38, § 270 (1874); Conn. Gen. Stat., ch. 3, § 7 (1875); N. H. Gen. Laws, ch. 269, § 17 (1878); Cal. Penal Code § 647 (1885); Ohio Rev. Stat., Tit. 1, ch. 8, §§ 6994, 6995 (1886); Colo. Rev. Stat., ch. 36, § 1362 (1891); Del. Rev. Stat., ch. 92, Vol. 12, p. 962 (1861); Ky. Stat., ch. 132, § 4758 (1894); Ill. Rev. Stat., ch. 38, § 270 (1895); Ala. Code, ch. 199, § 5628 (1897); Ariz. Rev. Stat., Tit. 17, § 599 (1901); N. Y. Crim. Code § 887 (1902); Pa. Stat. §§ 21409, 21410 (1920); Ky. Stat. § 4758-1 (1922); Ala. Code, ch. 244, § 5571 (1923); Kan. Rev. Stat. § 21-2402 (1923); Ill. Stat. Ann., § 606 (1924); Ariz. Rev. Stat., ch. 111, § 4868 (1928); Cal. Penal Code, Pt. 1, Tit. 15, ch. 2, § 647 (1929); Pa. Stat. Ann., Tit. 18, § 2032 (Purdon 1945); Kan. Gen. Stat. Ann. § 21-2409 (1949); N. Y. Crim. Code § 887 (1952); Colo. Rev. Stat. Ann. § 40-8-20 (1954); Cal. Penal Code § 647 (1953); 1 Ill. Rev. Stat., ch. 38, § 578 (1953); Ky. Rev. Stat. § 436.520 (1953); 5 Ala. Code, Tit. 14, § 437 (1959); Pa. Stat. Ann., Tit. 18, § 2032 (Purdon 1963); Kan. Stat. Ann. § 21-2409 (1964).

          289

          [5] The other cases upon which the plurality relies concern the entirely distinct right to interstate and international travel. See Williams v. Fears, 179 U. S. 270, 274-275 (1900); Kent v. Dulles, 357 U. S. 116 (1958). The plurality claims that dicta in those cases articulating a right of free movement, see Williams, supra, at 274; Kent, supra, at 125, also supports an individual's right to "remain in a public place of his choice." Ironically, Williams rejected the argument that a tax on persons engaged in the business of importing out-of-state labor impeded the freedom of transit, so the precise holding in that case does not support, but undermines, the plurality's view. Similarly, the precise holding in Kent did not bear on a constitutional right to travel; instead, the Court held only that Congress had not authorized the Secretary of State to deny certain passports. Furthermore, the plurality's approach distorts the principle articulated in those cases, stretching it to a level of generality that permits the Court to disregard the relevant historical evidence that should guide the analysis. Michael H. v. Gerald D., 491 U. S. 110, 127, n. 6 (1989) (plurality opinion).

          290

          [6] See, e. g., Ark. Code Ann. § 12-8-106(b) (Supp. 1997) ("The Department of Arkansas State Police shall be conservators of the peace"); Del. Code Ann., Tit. IX, § 1902 (1989) ("All police appointed under this section shall see that the peace and good order of the State . . . be duly kept"); Ill. Comp. Stat., ch. 65, § 5/11-1-2(a) (1998) ("Police officers in municipalities shall be conservators of the peace"); La. Rev. Stat. Ann. § 40:1379 (West 1992) ("Police employees . . .shall . . . keep the peace and good order"); Mo. Rev. Stat. § 85.561 (1998) ("[M]embers of the police department shall be conservators of the peace, and shall be active and vigilant in the preservation of good order within the city"); N. H. Rev. Stat. Ann. § 105:3 (1990) ("All police officers are, by virtue of their appointment, constables and conservators of the peace"); Ore. Rev. Stat. § 181.110 (1997) ("Police to preserve the peace, to enforce the law and to prevent and detect crime"); 351 Pa. Code, Tit. 351, § 5.5-200 (1998) ("The Police Department . . . shall preserve the public peace, prevent and detect crime, police the streets and highways and enforce traffic statutes, ordinances and regulations relating thereto"); Tex. Code Crim. Proc. Ann., Art. 2.13 (Vernon 1977) ("It is the duty of every peace officer to preserve the peace within his jurisdiction"); Vt. Stat. Ann., Tit. 24, § 299 (1992) ("A sheriff shall preserve the peace, and suppress, with force and strong hand, if necessary, unlawful disorder"); Va. Code Ann. § 15.2-1704(A) (Supp. 1998) ("The police force . . . is responsible for the prevention and detection of crime, the apprehension of criminals, the safeguard of life and property, the preservation of peace and the enforcement of state and local laws, regulations, and ordinances").

          291

          [7] For example, the following statutes provide a criminal penalty for the failure to obey a dispersal order: Ala. Code § 13A-11-6 (1994); Ariz. Rev. Stat. Ann. § 13-2902(A)(2) (1989); Ark. Code Ann. § 5-71-207(a)(6) (1993); Cal. Penal Code Ann. § 727 (West 1985); Colo. Rev. Stat. § 18-9-107(b) (1997); Del. Code Ann., Tit. 11, § 1321 (1995); Ga. Code Ann. § 16-11-36 (1996); Guam Code Ann., Tit. 9, § 61.10(b) (1996); Haw. Rev. Stat. § 7111102 (1993); Idaho Code § 18-6410 (1997); Ill. Comp. Stat., ch. 720, § 5/251(e) (1998); Ky. Rev. Stat. Ann. §§ 525.060, 525.160 (Baldwin 1990); Me. Rev. Stat. Ann., Tit. 17A, § 502 (1983); Mass. Gen. Laws, ch. 269, § 2 (1992); Mich. Comp. Laws § 750.523 (1991); Minn. Stat. § 609.715 (1998); Miss. Code Ann. § 97-35-7(1) (1994); Mo. Rev. Stat. § 574.060 (1994); Mont. Code Ann. § 45-8-102 (1997); Nev. Rev. Stat. § 203.020 (1995); N. H. Rev. Stat. Ann. §§ 644:1, 644:2(II)(e) (1996); N. J. Stat. Ann. § 2C:33-1(b) (West 1995); N. Y. Penal Law § 240.20(6) (McKinney 1989); N. C. Gen. Stat. § 14-288.5(a) (1999); N. D. Cent. Code § 12.1-25-04 (1997); Ohio Rev. Code Ann. § 2917.13(A)(2) (1997); Okla. Stat., Tit. 21, § 1316 (1991); Ore. Rev. Stat. § 166.025(1)(e) (1997); 18 Pa. Cons. Stat. § 5502 (1983); R. I. Gen. Laws § 11-38-2 (1994); S. C. Code Ann. § 16-7-10(a) (1985); S. D. Codified Laws § 22-10-11 (1998); Tenn. Code Ann. § 39-17-305(2) (1997); Tex. Penal Code Ann. § 42.03(a)(2) (1994); Utah Code Ann. § 76-9-104 (1995); Vt. Stat. Ann., Tit. 13, § 901 (1998); Va. Code Ann. § 18.2-407 (1996); V. I. Code Ann., Tit. 5, § 4022 (1997); Wash. Rev. Code § 9A.84.020 (1994); W. Va. Code § 61-6-1 (1997); Wis. Stat. § 947.06(3) (1994).

          292

          [8] See also Ind. Code § 36-8-3-10(a) (1993) ("The police department shall, within the city: (1) preserve peace; (2) prevent offenses; (3) detect and arrest criminals; (4) suppress riots, mobs, and insurrections; (5) disperse unlawful and dangerous assemblages and assemblages that obstruct the free passage of public streets, sidewalks, parks, and places . . ."); Okla. Stat., Tit. 19, § 516 (1991) ("It shall be the duty of the sheriff . . . to keep and preserve the peace of their respective counties, and to quiet and suppress all affrays, riots and unlawful assemblies and insurrections . . .").

          293

          [9] The plurality suggests, ante, at 59, that dispersal orders are, by their nature, vague. The plurality purports to distinguish its sweeping condemnation of dispersal orders from Colten v.Kentucky, 407 U. S. 104 (1972), but I see no principled ground for doing so. The logical implication of the plurality's assertion is that the police can never issue dispersal orders. For example, in the plurality's view, itis apparently unconstitutional for a police officer to ask a group of gawkers to move along in order to secure a crime scene.

          294

          [10] For example, a 1764 Georgia law declared that "all able bodied persons . . . who shall be found loitering . . . , all other idle vagrants, or disorderly persons wandering abroad without betaking themselves to some lawful employment or honest labor, shall be deemed and adjudged vagabonds," and required the apprehension of "any such vagabond . . . found within any county in this State, wandering, strolling, loitering about" (reprinted in First Laws of the State of Georgia, Part 1, 376-377 (J. Cushing comp. 1981)). See also, e. g., Digest of Laws of Pennsylvania 829 (F. Brightly 8th ed. 1853) ("The following described persons shall be liable to the penalties imposed by law upon vagrants . . . . All persons who shall . . . be found loitering"); Ky. Rev. Stat., ch. CIV, § 1, p. 69 (1852) ("If any able bodied person be found loitering or rambling about, . . . he shall be taken and adjudged to be a vagrant, and guilty of a high misdemeanor").

          295

          [11] The Court asserts that we cannot second-guess the Illinois Supreme Court's conclusion that the definition "`provides absolute discretion to police officers to decide what activities constitute loitering,' "ante, at 61 (quoting 177 Ill.2d, at 457, 687 N. E. 2d, at 63). While we are bound by a state court's construction of a statute, the Illinois court "did not, strictly speaking, construe the [ordinance] in the sense of defining the meaning of a particular statutory word or phase. Rather, it merely characterized [its] `practical effect' . . . .This assessment does not bind us." Wisconsin v. Mitchell, 508 U. S. 476, 484 (1993).

        • 6.2.1.4 Kelling and Wilson - "Broken Windows: The Police and Neighborhood Safety"

        • 6.2.1.5 Lawrence v. Texas

          We have just read a few cases that illustrate the concept of legality in terms of the legal institutions that define crimes, the importance of notice, and the dangers of vagueness. Legality, however, goes beyond these somewhat procedural issues to implicate questions of substance: what conduct can a just society legally punish in the first place? Our next case, Lawrence v. Texas, grapples with this question.

          1
          539 U.S. 558 (2003)
          LAWRENCE et al.
          v.
          TEXAS
          No. 02-102.

          Supreme Court of United States.

          Argued March 26, 2003.
          Decided June 26, 2003.

           

          CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT

           

          [559] [560] [561] KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 579. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 586. THOMAS, J., filed a dissenting opinion, post, p. 605.

          Paul M. Smith argued the cause for petitioners. With him on the briefs were William M. Hohengarten, Daniel Mach, Mitchell Katine, Ruth E. Harlow, Patricia M. Logue, and Susan L. Sommer.

          Charles A. Rosenthal, Jr., argued the cause for respondent. With him on the brief were William J. Delmore III and Scott A. Durfee.[*]

          [562] JUSTICE KENNEDY delivered the opinion of the Court.

          Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.

          I

           

          The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.

          In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, [563] resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody overnight, and charged and convicted before a Justice of the Peace.

          The complaints described their crime as "deviate sexual intercourse, namely anal sex, with a member of the same sex (man)." App. to Pet. for Cert. 127a, 139a. The applicable state law is Tex. Penal Code Ann. § 21.06(a) (2003). It provides: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." The statute defines "[d]eviate sexual intercourse" as follows:

          2
          "(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or
           
          "(B) the penetration of the genitals or the anus of another person with an object." § 21.01(1).
          3

           

          The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Tex. Const., Art. 1, § 3a. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court costs of $141.25. App. to Pet. for Cert. 107a-110a.

          The Court of Appeals for the Texas Fourteenth District considered the petitioners' federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. 41 S. W. 3d 349 (2001). The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick, 478 U. S. 186 (1986), to be controlling on the federal due process aspect of the case. Bowers then being authoritative, this was proper.

          [564] We granted certiorari, 537 U. S. 1044 (2002), to consider three questions:

          4
          1. Whether petitioners' criminal convictions under the Texas "Homosexual Conduct" law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws.
           
          2. Whether petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment.
           
          3. Whether Bowers v. Hardwick, supra, should be overruled? See Pet. for Cert. i.
          5

           

          The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.

          II

           

          We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court's holding in Bowers.

          There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut, 381 U. S. 479 (1965).

          In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and [565] placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at 485.

          After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird, 405 U. S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, id., at 454; but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights, ibid. It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights, and it followed with this statement of its own:

          "It is true that in Griswold the right of privacy in question inhered in the marital relationship. . . . If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id., at 453.

           

          The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade, 410 U. S. 113 (1973). As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other States were affected as well. Although the Court held the woman's rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.

          [566] In Carey v. Population Services Int'l, 431 U. S. 678 (1977), the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick.

          The facts in Bowers had some similarities to the instant case. A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male. The conduct was in violation of a Georgia statute making it a criminal offense to engage in sodomy. One difference between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of the same sex, while the Texas statute, as we have seen, applies only to participants of the same sex. Hardwick was not prosecuted, but he brought an action in federal court to declare the state statute invalid. He alleged he was a practicing homosexual and that the criminal prohibition violated rights guaranteed to him by the Constitution. The Court, in an opinion by Justice White, sustained the Georgia law. Chief Justice Burger and Justice Powell joined the opinion of the Court and filed separate, concurring opinions. Four Justices dissented. 478 U. S., at 199 (opinion of Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ.); id., at 214 (opinion of Stevens, J.,joined by Brennan and Marshall, JJ.).

          The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so [567] for a very long time." Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

          This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

          Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots." Id., at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions [568] in Bowers. Brief for Cato Institute as Amicus Curiae 16-17; Brief for American Civil Liberties Union et al. as Amici Curiae 15-21; Brief for Professors of History et al. as Amici Curiae 3-10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance.

          At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e. g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting "mankind" in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men. See, e. g., 2 J. Bishop, Criminal Law § 1028 (1858); 2 J. Chitty, Criminal Law 47-50 (5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law 143 (1882); J. May, The Law of Crimes § 203 (2d ed. 1893). The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e. g., J. Katz, The Invention of Heterosexuality 10 (1995); J. D'Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) ("The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions"). Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of [569] homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons.

          Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise, see 2 Chitty, supra, at 49, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals.

          To the extent that there were any prosecutions for the acts in question, 19th-century evidence rules imposed a burden that would make a conviction more difficult to obtain even taking into account the problems always inherent in prosecuting consensual acts committed in private. Under then-prevailing standards, a man could not be convicted of sodomy based upon testimony of a consenting partner, because the partner was considered an accomplice. A partner's testimony, however, was admissible if he or she had not consented to the act or was a minor, and therefore incapable of consent. See, e. g., F. Wharton, Criminal Law 443 (2d ed. 1852); 1 F. Wharton, Criminal Law 512 (8th ed. 1880). The rule may explain in part the infrequency of these prosecutions. In all events that infrequency makes it difficult to say that society approved of a rigorous and systematic [570] punishment of the consensual acts committed in private and by adults. The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character.

          The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions, there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing "ancient roots," Bowers, 478 U. S., at 192, American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880-1995 are not always clear in the details, but a significant number involved conduct in a public place. See Brief for American Civil Liberties Union et al. as Amici Curiae 14-15, and n. 18.

          It was not until the 1970's that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. See 1977 Ark. Gen. Acts no. 828; 1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws p. 687; 1973 Mont. Laws p. 1339; 1977 Nev. Stats. p. 1632; 1989 Tenn. Pub. Acts ch. 591; 1973 Tex. Gen. Laws ch. 399; see also Post v. State, 715 P. 2d 1105 (Okla. Crim. App. 1986) (sodomy law invalidated as applied to different-sex couples). Post-Bowers even some of these States did not adhere to the policy of suppressing homosexual conduct. Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. See, e. g., Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, [571] 842 S. W. 2d 487 (Ky. 1992); see also 1993 Nev. Stats. p. 518 (repealing Nev. Rev. Stat. § 201.193).

          In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated.

          It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992).

          Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards." 478 U. S., at 196. As with Justice White's assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. See, e. g., Eskridge, Hardwick and Historiography, 1999 U. Ill. L. Rev. 631, 656. In all events we think that our laws and traditions in the past half century are of [572] most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." County of Sacramento v. Lewis, 523 U. S. 833, 857 (1998) (Kennedy, J., concurring).

          This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for "criminal penalties for consensual sexual relations conducted in private." ALI, Model Penal Code § 213.2, Comment 2, p. 372 (1980). It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. ALI, Model Penal Code, Commentary 277-280 (Tent. Draft No. 4, 1955). In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon followed. Brief for Cato Institute as Amicus Curiae 15-16.

          In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court's decision 24 States and the District of Columbia had sodomy laws. 478 U. S., at 192-193. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. Id., at 197-198, n. 2 ("The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct").

          The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws [573] punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, § 1.

          Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶ 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.

          In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941, 943.

          Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed [574] that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

          "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Ibid.

           

          Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.

          The second post-Bowers case of principal relevance is Romer v. Evans, 517 U. S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado's Constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by "orientation, conduct, practices or relationships," id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was "born of animosity toward the class of persons affected" and further that it had no rational relation to a legitimate governmental purpose. Id., at 634.

          As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude [575] the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.

          Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.

          The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to state laws requiring the registration of sex offenders. Smith v. Doe, 538 U. S. 84 (2003); Connecticut Dept. of Public Safety v. Doe, 538 U. S. 1 (2003). We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of at least four States were he or she to be subject to their jurisdiction. Pet. for Cert. 13, and n. 12 (citing Idaho Code §§ 18-8301 to 18-8326 (Cum. Supp. 2002); La. Code Crim. Proc. Ann. §§ 15:540-15:549 [576] (West 2003); Miss. Code Ann. §§ 45-33-21 to 45-33-57 (Lexis 2003); S. C. Code Ann. §§ 23-3-400 to 23-3-490 (West 2002)). This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example.

          The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. See, e. g., C. Fried, Order and Law: Arguing the Reagan Revolution—A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992). The courts of five different States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment, see Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Powell v. State, 270 Ga. 327, 510 S. E. 2d 18, 24 (1998); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992).

          To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ¶ 56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary [577] Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.

          The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee, 501 U. S. 808, 828 (1991) ("Stare decisis is not an inexorable command; rather, it `is a principle of policy and not a mechanical formula of adherence to the latest decision' " (quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940))). In Casey we noted that when a court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. 505 U. S., at 855-856; see also id., at 844 ("Liberty finds no refuge in a jurisprudence of doubt"). The holding in Bowers, however, has not induced detrimental reliance comparable to some instances where recognized individual rights are involved. Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding.

          The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions:

          "Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional [578] attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of `liberty' protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." 478 U. S., at 216 (footnotes and citations omitted).

           

          JUSTICE STEVENS' analysis, in our view, should have been controlling in Bowers and should control here.

          Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

          The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

          Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume [579] to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

          The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

          It is so ordered.

          JUSTICE O'CONNOR, concurring in the judgment.

          The Court today overrules Bowers v. Hardwick, 478 U. S. 186 (1986). I joined Bowers, and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas' statute banning same-sex sodomy is unconstitutional. See Tex. Penal Code Ann. § 21.06 (2003). Rather than relying on the substantive component of the Fourteenth Amendment's Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment's Equal Protection Clause.

          The Equal Protection Clause of the Fourteenth Amendment "is essentially a direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985); see also Plyler v. Doe, 457 U. S. 202, 216 (1982). Under our rational basis standard of review, "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Cleburne v. Cleburne Living Center, supra, at 440; see also Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973); Romer v. Evans, 517 U. S. 620, 632-633 (1996); Nordlinger v. Hahn, 505 U. S. 1, 11-12 (1992).

          Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since "the Constitution presumes that even improvident decisions will eventually be rectified by the [580] democratic processes." Cleburne v. Cleburne Living Center, supra, at 440; see also Fitzgerald v. Racing Assn. of Central Iowa, ante, p. 103; Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). We have consistently held, however, that some objectives, such as "a bare . . . desire to harm a politically unpopular group," are not legitimate state interests. Department of Agriculture v. Moreno, supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446-447; Romer v. Evans, supra, at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.

          We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships. In Department of Agriculture v. Moreno, for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to "`discriminate against hippies.'" 413 U. S., at 534. The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. Id., at 535-538. In Eisenstadt v. Baird, 405 U. S. 438, 447-455 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v. Cleburne Living Center, supra, we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences—like fraternity houses and apartment buildings—did not have to obtain such a permit. And in Romer v. Evans, we disallowed a state statute that "impos[ed] a broad and undifferentiated disability on a single named group"—specifically, homosexuals. 517 U. S., at 632.

          [581] The statute at issue here makes sodomy a crime only if a person "engages in deviate sexual intercourse with another individual of the same sex." Tex. Penal Code Ann. § 21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by § 21.06.

          The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct—and only that conduct—subject to criminal sanction. It appears that prosecutions under Texas' sodomy law are rare. See State v. Morales, 869 S. W. 2d 941, 943 (Tex. 1994) (noting in 1994 that § 21.06 "has not been, and in all probability will not be, enforced against private consensual conduct between adults"). This case shows, however, that prosecutions under § 21.06 do occur. And while the penalty imposed on petitioners in this case was relatively minor, the consequences of conviction are not. It appears that petitioners' convictions, if upheld, would disqualify them from or restrict their ability to engage in a variety of professions, including medicine, athletic training, and interior design. See, e. g., Tex. Occ. Code Ann. § 164.051(a)(2)(B) (2003 Pamphlet) (physician); § 451.251(a)(1) (athletic trainer); § 1053.252(2) (interior designer). Indeed, were petitioners to move to one of four States, their convictions would require them to register as sex offenders to local law enforcement. See, e. g., Idaho Code § 18-8304 (Cum. Supp. 2002); La. Stat. Ann. § 15:542 (West Cum. Supp. 2003); Miss. Code Ann. § 45-33-25 (West 2003); S. C. Code Ann. § 23-3-430 (West Cum. Supp. 2002); cf. ante, at 575-576.

          And the effect of Texas' sodomy law is not just limited to the threat of prosecution or consequence of conviction. Texas' sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else. Indeed, Texas [582] itself has previously acknowledged the collateral effects of the law, stipulating in a prior challenge to this action that the law "legally sanctions discrimination against [homosexuals] in a variety of ways unrelated to the criminal law," including in the areas of "employment, family issues, and housing." State v. Morales, 826 S. W. 2d 201, 203 (Tex. App. 1992).

          Texas attempts to justify its law, and the effects of the law, by arguing that the statute satisfies rational basis review because it furthers the legitimate governmental interest of the promotion of morality. In Bowers, we held that a state law criminalizing sodomy as applied to homosexual couples did not violate substantive due process. We rejected the argument that no rational basis existed to justify the law, pointing to the government's interest in promoting morality. 478 U. S., at 196. The only question in front of the Court in Bowers was whether the substantive component of the Due Process Clause protected a right to engage in homosexual sodomy. Id., at 188, n. 2. Bowers did not hold that moral disapproval of a group is a rational basis under the Equal Protection Clause to criminalize homosexual sodomy when heterosexual sodomy is not punished.

          This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. See, e. g., Department of Agriculture v. Moreno, 413 U. S., at 534; Romer v. Evans, 517 U. S., at 634-635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.

          [583] Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be "drawn for the purpose of disadvantaging the group burdened by the law." Id., at 633. Texas' invocation of moral disapproval as a legitimate state interest proves nothing more than Texas' desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating "a classification of persons undertaken for its own sake." Id., at 635. And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law "raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." Id., at 634.

          Texas argues, however, that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. "After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." Id., at 641 (SCALIA, J., dissenting) (internal quotation marks omitted). When a State makes homosexual conduct criminal, and not "deviate sexual intercourse" committed by persons of different sexes, "that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 575.

          Indeed, Texas law confirms that the sodomy statute is directed toward homosexuals as a class. In Texas, calling a person a homosexual is slander per se because the word "homosexual" [584] "impute[s] the commission of a crime." Plumley v. Landmark Chevrolet, Inc., 122 F. 3d 308, 310 (CA5 1997) (applying Texas law); see also Head v. Newton, 596 S. W. 2d 209, 210 (Tex. App. 1980). The State has admitted that because of the sodomy law, being homosexual carries the presumption of being a criminal. See State v. Morales, 826 S. W. 2d, at 202-203 ("[T]he statute brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law"). Texas' sodomy law therefore results in discrimination against homosexuals as a class in an array of areas outside the criminal law. See ibid. In Romer v. Evans, we refused to sanction a law that singled out homosexuals "for disfavored legal status." 517 U. S., at 633. The same is true here. The Equal Protection Clause "`neither knows nor tolerates classes among citizens.'" Id., at 623 (quoting Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting)).

          A State can of course assign certain consequences to a violation of its criminal law. But the State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law. The Texas sodomy statute subjects homosexuals to "a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass . . . cannot be reconciled with" the Equal Protection Clause. Plyler v. Doe, 457 U. S., at 239 (Powell, J., concurring).

          Whether a sodomy law that is neutral both in effect and application, see Yick Wo v. Hopkins, 118 U. S. 356 (1886), would violate the substantive component of the Due Process Clause is an issue that need not be decided today. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a [585] law would not long stand in our democratic society. In the words of Justice Jackson:

          "The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected." Railway Express Agency, Inc. v. New York, 336 U. S. 106, 112-113 (1949) (concurring opinion).

           

          That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case— other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

          A law branding one class of persons as criminal based solely on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review. I therefore concur in the Court's judgment that Texas' sodomy law banning "deviate sexual intercourse" between consenting adults of the same sex, but not between consenting adults of different sexes, is unconstitutional.

          [586] JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting.

          "Liberty finds no refuge in a jurisprudence of doubt." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 844 (1992). That was the Court's sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U. S. 113 (1973). The Court's response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, 478 U. S. 186 (1986), is very different. The need for stability and certainty presents no barrier.

          Most of the rest of today's opinion has no relevance to its actual holding—that the Texas statute "furthers no legitimate state interest which can justify" its application to petitioners under rational-basis review. Ante, at 578 (overruling Bowers to the extent it sustained Georgia's antisodomy statute under the rational-basis test). Though there is discussion of "fundamental proposition[s]," ante, at 565, and "fundamental decisions," ibid., nowhere does the Court's opinion declare that homosexual sodomy is a "fundamental right" under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a "fundamental right." Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: "[R]espondent would have us announce . . . a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do." 478 U. S., at 191. Instead the Court simply describes petitioners' conduct as "an exercise of their liberty"—which it undoubtedly is—and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case. Ante, at 564.

          I

           

          I begin with the Court's surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick. [587] I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today's opinions in support of reversal do not bother to distinguish—or indeed, even bother to mention— the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it:

          "Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe[,] . . . its decision has a dimension that the resolution of the normal case does not carry. . . . [T]o overrule under fire in the absence of the most compelling reason . . . would subvert the Court's legitimacy beyond any serious question." 505 U. S., at 866-867.

           

          Today, however, the widespread opposition to Bowers, a decision resolving an issue as "intensely divisive" as the issue in Roe, is offered as a reason in favor of overruling it. See ante, at 576-577. Gone, too, is any "enquiry" (of the sort conducted in Casey) into whether the decision sought to be overruled has "proven `unworkable,'" Casey, supra, at 855.

          Today's approach to stare decisis invites us to overrule an erroneously decided precedent (including an "intensely divisive" decision) if: (1) its foundations have been "ero[ded]" by subsequent decisions, ante, at 576; (2) it has been subject to "substantial and continuing" criticism, ibid.; and (3) it has not induced "individual or societal reliance" that counsels against overturning, ante, at 577. The problem is that Roe itself—which today's majority surely has no disposition to overrule—satisfies these conditions to at least the same degree as Bowers.

          [588] (1) A preliminary digressive observation with regard to the first factor: The Court's claim that Planned Parenthood v. Casey, supra, "casts some doubt" upon the holding in Bowers (or any other case, for that matter) does not withstand analysis. Ante, at 571. As far as its holding is concerned, Casey provided a less expansive right to abortion than did Roe, which was already on the books when Bowers was decided. And if the Court is referring not to the holding of Casey, but to the dictum of its famed sweet-mystery-of-life passage, ante, at 574 ("`At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life'"): That "casts some doubt" upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one's "right to define" certain concepts; and if the passage calls into question the government's power to regulate actions based on one's self-defined "concept of existence, etc.," it is the passage that ate the rule of law.

          I do not quarrel with the Court's claim that Romer v. Evans, 517 U. S. 620 (1996), "eroded" the "foundations" of Bowers' rational-basis holding. See Romer, supra, at 640-643 (Scalia, J., dissenting). But Roe and Casey have been equally "eroded" by Washington v. Glucksberg, 521 U. S. 702, 721 (1997), which held that only fundamental rights which are "`deeply rooted in this Nation's history and tradition' " qualify for anything other than rational-basis scrutiny under the doctrine of "substantive due process." Roe and Casey, of course, subjected the restriction of abortion to heightened scrutiny without even attempting to establish that the freedom to abort was rooted in this Nation's tradition.

          (2) Bowers, the Court says, has been subject to "substantial and continuing [criticism], disapproving of its reasoning in all respects, not just as to its historical assumptions." Ante, at 576. Exactly what those nonhistorical criticisms are, and whether the Court even agrees with them, are left [589] unsaid, although the Court does cite two books. See ibid. (citing C. Fried, Order and Law: Arguing the Reagan Revolution —A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992)).[1] Of course, Roe too (and by extension Casey) had been (and still is) subject to unrelenting criticism, including criticism from the two commentators cited by the Court today. See Fried, supra, at 75 ("Roe was a prime example of twisted judging"); Posner, supra, at 337 ("[The Court's] opinion in Roe... fails to measure up to professional expectations regarding judicial opinions"); Posner, Judicial Opinion Writing, 62 U. Chi. L. Rev. 1421, 1434 (1995) (describing the opinion in Roe as an "embarrassing performanc[e]").

          (3) That leaves, to distinguish the rock-solid, unamendable disposition of Roe from the readily overrulable Bowers, only the third factor. "[T]here has been," the Court says, "no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding...." Ante, at 577. It seems to me that the "societal reliance" on the principles confirmed in Bowers and discarded today has been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is "immoral and unacceptable" constitutes a rational basis for regulation. See, e. g., Williams v. Pryor, 240 F. 3d 944, 949 (CA11 2001) (citing Bowers in upholding Alabama's prohibition on the sale of sex toys on the ground that "[t]he crafting and safeguarding of public morality . . . indisputably is a legitimate government interest under rational basis scrutiny"); Milner v. Apfel, 148 F. 3d 812, 814 (CA7 1998) (citing Bowers for the proposition that "[l]egislatures are permitted to legislate with regard to morality . . . rather than confined [590] to preventing demonstrable harms"); Holmes v. California Army National Guard, 124 F. 3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999) (relying on Bowers in holding that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage"); Sherman v. Henry, 928 S. W. 2d 464, 469-473 (Tex. 1996) (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc., 501 U. S. 560, 569 (1991), that Indiana's public indecency statute furthered "a substantial government interest in protecting order and morality," ibid. (plurality opinion); see also id., at 575 (Scalia, J., concurring in judgment). State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 572 (noting "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" (emphasis added)). The impossibility of distinguishing homosexuality from other traditional "morals" offenses is precisely why Bowers rejected the rational-basis challenge. "The law," it said, "is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." 478 U. S., at 196.[2]

          [591] What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of, and restrictions upon, abortion were determined legislatively State by State. Casey, however, chose to base its stare decisis determination on a different "sort" of reliance. "[P]eople," it said, "have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail." 505 U. S., at 856. This falsely assumes that the consequence of overruling Roe would have been to make abortion unlawful. It would not; it would merely have permitted [592] the States to do so. Many States would unquestionably have declined to prohibit abortion, and others would not have prohibited it within six months (after which the most significant reliance interests would have expired). Even for persons in States other than these, the choice would not have been between abortion and childbirth, but between abortion nearby and abortion in a neighboring State.

          To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey's extraordinary deference to precedent for the result-oriented expedient that it is.

          II

           

          Having decided that it need not adhere to stare decisis, the Court still must establish that Bowers was wrongly decided and that the Texas statute, as applied to petitioners, is unconstitutional.

          Texas Penal Code Ann. § 21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to "liberty" under the Due Process Clause, though today's opinion repeatedly makes that claim. Ante, at 567 ("The liberty protected by the Constitution allows homosexual persons the right to make this choice"); ante, at 574 ("`These matters . . . are central to the liberty protected by the Fourteenth Amendment' "); ante, at 578 ("Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government"). The Fourteenth Amendment expressly allows States to deprive their citizens of "liberty," so long as "due process of law" is provided:

          "No state shall . . . deprive any person of life, liberty, or property, without due process of law." Amdt. 14 (emphasis added).

           

          [593] Our opinions applying the doctrine known as "substantive due process" hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U. S., at 721. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called "heightened scrutiny" protection—that is, rights which are "`deeply rooted in this Nation's history and tradition,'" ibid. See Reno v. Flores, 507 U. S. 292, 303 (1993) (fundamental liberty interests must be "so rooted in the traditions and conscience of our people as to be ranked as fundamental" (internal quotation marks and citations omitted)); United States v. Salerno, 481 U. S. 739, 751 (1987) (same). See also Michael H. v. Gerald D., 491 U. S. 110, 122 (1989) ("[W]e have insisted not merely that the interest denominated as a `liberty' be `fundamental' . . . but also that it be an interest traditionally protected by our society"); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); Meyer v. Nebraska, 262 U. S. 390, 399 (1923) (Fourteenth Amendment protects "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men" (emphasis added)).[3] All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest.

          [594] Bowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny because they do not implicate a "fundamental right" under the Due Process Clause, 478 U. S., at 191-194. Noting that "[p]roscriptions against that conduct have ancient roots," id., at 192, that "[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights," ibid., and that many States had retained their bans on sodomy, id., at 193, Bowers concluded that a right to engage in homosexual sodomy was not "`deeply rooted in this Nation's history and tradition,'" id., at 192.

          The Court today does not overrule this holding. Not once does it describe homosexual sodomy as a "fundamental right" or a "fundamental liberty interest," nor does it subject the Texas statute to strict scrutiny. Instead, having failed to establish that the right to homosexual sodomy is "`deeply rooted in this Nation's history and tradition,'" the Court concludes that the application of Texas's statute to petitioners' conduct fails the rational-basis test, and overrules Bowers' holding to the contrary, see id., at 196. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Ante, at 578.

          I shall address that rational-basis holding presently. First, however, I address some aspersions that the Court casts upon Bowers' conclusion that homosexual sodomy is not a "fundamental right"—even though, as I have said, the Court does not have the boldness to reverse that conclusion.

          III

           

          The Court's description of "the state of the law" at the time of Bowers only confirms that Bowers was right. Ante, at 566. The Court points to Griswold v. Connecticut, 381 U. S. 479, 481-482 (1965). But that case expressly disclaimed any reliance on the doctrine of "substantive due [595] process," and grounded the so-called "right to privacy" in penumbras of constitutional provisions other than the Due Process Clause. Eisenstadt v. Baird, 405 U. S. 438 (1972), likewise had nothing to do with "substantive due process"; it invalidated a Massachusetts law prohibiting the distribution of contraceptives to unmarried persons solely on the basis of the Equal Protection Clause. Of course Eisenstadt contains well-known dictum relating to the "right to privacy," but this referred to the right recognized in Griswold —a right penumbral to the specific guarantees in the Bill of Rights, and not a "substantive due process" right.

          Roe v. Wade recognized that the right to abort an unborn child was a "fundamental right" protected by the Due Process Clause. 410 U. S., at 155. The Roe Court, however, made no attempt to establish that this right was "`deeply rooted in this Nation's history and tradition' "; instead, it based its conclusion that "the Fourteenth Amendment's concept of personal liberty . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" on its own normative judgment that antiabortion laws were undesirable. See id., at 153. We have since rejected Roe's holding that regulations of abortion must be narrowly tailored to serve a compelling state interest, see Planned Parenthood v. Casey, 505 U. S., at 876 ( joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.); id., at 951-953 (Rehnquist, C. J., concurring in judgment in part and dissenting in part)—and thus, by logical implication, Roe's holding that the right to abort an unborn child is a "fundamental right." See 505 U. S., at 843-912 ( joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.) (not once describing abortion as a "fundamental right" or a "fundamental liberty interest").

          After discussing the history of antisodomy laws, ante, at 568-571, the Court proclaims that, "it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter," ante, [596] at 568. This observation in no way casts into doubt the "definitive [historical] conclusio[n]," ibid., on which Bowers relied: that our Nation has a longstanding history of laws prohibiting sodomy in general—regardless of whether it was performed by same-sex or opposite-sex couples:

          "It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is `deeply rooted in this Nation's history and tradition' or `implicit in the concept of ordered liberty' is, at best, facetious." 478 U. S., at 192-194 (citations and footnotes omitted; emphasis added).

           

          It is (as Bowers recognized) entirely irrelevant whether the laws in our long national tradition criminalizing homosexual sodomy were "directed at homosexual conduct as a distinct matter." Ante, at 568. Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized—which suffices to establish that homosexual sodomy is not a right "deeply rooted in our Nation's history and tradition." The Court today agrees that homosexual sodomy was criminalized and thus does not dispute the facts on which Bowers actually relied.

          [597] Next the Court makes the claim, again unsupported by any citations, that "[l]aws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private." Ante, at 569. The key qualifier here is "acting in private"—since the Court admits that sodomy laws were enforced against consenting adults (although the Court contends that prosecutions were "infrequen[t]," ibid.). I do not know what "acting in private" means; surely consensual sodomy, like heterosexual intercourse, is rarely performed on stage. If all the Court means by "acting in private" is "on private premises, with the doors closed and windows covered," it is entirely unsurprising that evidence of enforcement would be hard to come by. (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.) Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a "fundamental right," even though all other consensual sodomy was criminalized. There are 203 prosecutions for consensual, adult homosexual sodomy reported in the West Reporting system and official state reporters from the years 1880-1995. See W. Eskridge, Gaylaw: Challenging the Apartheid of the Closet 375 (1999) (hereinafter Gaylaw). There are also records of 20 sodomy prosecutions and 4 executions during the colonial period. J. Katz, Gay/Lesbian Almanac 29, 58, 663 (1983). Bowers' conclusion that homosexual sodomy is not a fundamental right "deeply rooted in this Nation's history and tradition" is utterly unassailable.

          Realizing that fact, the Court instead says: "[W]e think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Ante, at 571-572 (emphasis [598] added). Apart from the fact that such an "emerging awareness" does not establish a "fundamental right," the statement is factually false. States continue to prosecute all sorts of crimes by adults "in matters pertaining to sex": prostitution, adult incest, adultery, obscenity, and child pornography. Sodomy laws, too, have been enforced "in the past half century," in which there have been 134 reported cases involving prosecutions for consensual, adult, homosexual sodomy. Gaylaw 375. In relying, for evidence of an "emerging recognition," upon the American Law Institute's 1955 recommendation not to criminalize "`consensual sexual relations conducted in private,'" ante, at 572, the Court ignores the fact that this recommendation was "a point of resistance in most of the states that considered adopting the Model Penal Code." Gaylaw 159.

          In any event, an "emerging awareness" is by definition not "deeply rooted in this Nation's history and tradition[s]," as we have said "fundamental right" status requires. Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on "values we share with a wider civilization," ante, at 576, but rather rejected the claimed right to sodomy on the ground that such a right was not "`deeply rooted in this Nation's history and tradition,'" 478 U. S., at 193-194 (emphasis added). Bowers' rational-basis holding is likewise devoid of any reliance on the views of a "wider civilization," see id., at 196. The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since "this Court... should not impose foreign moods, fads, or fashions on Americans." Foster v. Florida, 537 U. S. 990, n. (2002) (Thomas, J., concurring in denial of certiorari).

          [599]

           

          IV

           

          I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence—indeed, with the jurisprudence of any society we know—that it requires little discussion.

          The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," Bowers, supra, at 196—the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," ante, at 578 (emphasis added). The Court embraces instead Justice Stevens' declaration in his Bowers dissent, that "`the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,'" ante, at 577. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.

          V

           

          Finally, I turn to petitioners' equal-protection challenge, which no Member of the Court save Justice O'Connor, ante, at 579 (opinion concurring in judgment), embraces: On its face § 21.06(a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, § 21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual [600] acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.

          The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia, 388 U. S. 1, 8 (1967), similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was "designed to maintain White Supremacy." Id., at 6, 11. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race. See Washington v. Davis, 426 U. S. 229, 241-242 (1976). No purpose to discriminate against men or women as a class can be gleaned from the Texas law, so rational-basis review applies. That review is readily satisfied here by the same rational basis that satisfied it in Bowers —society's belief that certain forms of sexual behavior are "immoral and unacceptable," 478 U. S., at 196. This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner—for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage.

          JUSTICE O'CONNOR argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor.

          "While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. [601] It is instead directed toward gay persons as a class." Ante, at 583.

           

          Of course the same could be said of any law. A law against public nudity targets "the conduct that is closely correlated with being a nudist," and hence "is targeted at more than conduct"; it is "directed toward nudists as a class." But be that as it may. Even if the Texas law does deny equal protection to "homosexuals as a class," that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.

          JUSTICE O'CONNOR simply decrees application of "a more searching form of rational basis review" to the Texas statute. Ante, at 580. The cases she cites do not recognize such a standard, and reach their conclusions only after finding, as required by conventional rational-basis analysis, that no conceivable legitimate state interest supports the classification at issue. See Romer v. Evans, 517 U. S., at 635; Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 448-450 (1985); Department of Agriculture v. Moreno, 413 U. S. 528, 534-538 (1973). Nor does JUSTICE O'CONNOR explain precisely what her "more searching form" of rational-basis review consists of. It must at least mean, however, that laws exhibiting "a desire to harm a politically unpopular group," ante, at 580, are invalid even though there may be a conceivable rational basis to support them.

          This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. JUSTICE O'CONNOR seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. Ante, at 585. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. Texas's interest in § 21.06 could be recast in similarly euphemistic terms: "preserving the traditional sexual mores of our society." In the jurisprudence JUSTICE O'CONNOR [602] has seemingly created, judges can validate laws by characterizing them as "preserving the traditions of society" (good); or invalidate them by characterizing them as "expressing moral disapproval" (bad).

          * * *

           

          Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.

          One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 575. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that [603] culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal; that proposals to ban such "discrimination" under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such "discrimination" is mandated by federal statute, see 10 U. S. C. § 654(b)(1) (mandating discharge from the Armed Forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such "discrimination" is a constitutional right, see Boy Scouts of America v. Dale, 530 U. S. 640 (2000).

          Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts—or, for that matter, display any moral disapprobation of them—than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 579; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made [604] by the people, and not imposed by a governing caste that knows best.

          One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts—and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion—after having laid waste the foundations of our rational-basis jurisprudence —the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 578. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 574 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 578; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen [605] sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 567; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

          The matters appropriate for this Court's resolution are only three: Texas's prohibition of sodomy neither infringes a "fundamental right" (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws. I dissent.

          JUSTICE THOMAS, dissenting.

          I join JUSTICE SCALIA'S dissenting opinion. I write separately to note that the law before the Court today "is . . . uncommonly silly." Griswold v. Connecticut, 381 U. S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

          Notwithstanding this, I recognize that as a Member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases `agreeably to the Constitution and laws of the United States.'" Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the [606] Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 562.

          [*] Briefs of amici curiae urging reversal were filed for the Alliance of Baptists et al. by Robert A. Long, Jr., and Thomas L. Cubbage III; for the American Psychological Association et al. by David W. Ogden, Paul R. Q. Wolfson, Richard G. Taranto, Nathalie F. P. Gilfoyle, and Carolyn I. Polowy; for the American Public Health Association et al. by Jeffrey S. Trachtman and Norman C. Simon; for the Cato Institute by Robert A. Levy; for Constitutional Law Professors by Pamela S. Karlan and William B. Rubenstein; for the Human Rights Campaign et al. by Walter Dellinger, Pamela Harris, and Jonathan D. Hacker; for the Log Cabin Republicans et al. by C. Martin Meekins; for the NOW Legal Defense and Education Fund by David C. Codell, Laura W. Brill, and Wendy R. Weiser; for Professors of History by Roy T. Englert, Jr., Alan Untereiner, and Sherri Lynn Wolson; for the Republican Unity Coalition et al. by Erik S. Jaffe; and for Mary Robinson et al. by Harold Hongju Koh and Joseph F. Tringali.

          Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by William H. Pryor, Jr., Attorney General of Alabama, Nathan A. Forrester, Solicitor General, and George M. Weaver, and by the Attorneys General for their respective States as follows: Henry D. McMaster of South Carolina and Mark L. Shurtleff of Utah; for Agudath Israel of America by David Zwiebel; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Joel H. Thornton, and Walter M. Weber; for the American Family Association, Inc., et al. by Stephen M. Crampton, Brian Fahling, and Michael J. DePrimo; for the Center for Arizona Policy et al. by Len L. Munsil; for the Center for Law and Justice International by Thomas Patrick Monaghan and John P. Tuskey; for the Center for Marriage Law by Vincent P. McCarthy and Lynn D. Wardle; for the Center for the Original Intent of the Constitution by Michael P. Farris and Jordan W. Lorence; for Concerned Women for America by Janet M. LaRue; for the Family Research Council, Inc., by Robert P. George; for First Principles, Inc., by Ronald D. Ray; for Liberty Counsel by Mathew D. Staver and Rena M. Lindevaldsen; for the Pro Family Law Center et al. by Richard D. Ackerman and Gary G. Kreep; for Public Advocate of the United States et al. by Herbert W. Titus and William J. Olson; for the Texas Eagle Forum et al. by Teresa Stanton Collett; for Texas Legislator Warren Chisum et al. by Kelly Shackelford and Scott Roberts; for the Texas Physicians Resource Council et al. by Glen Lavy; and for United Families International by Paul Benjamin Linton.

          Briefs of amici curiae were filed for the American Bar Association by Alfred P. Carlton, Jr., Ruth N. Borenstein, and Beth S. Brinkmann; for the American Civil Liberties Union et al. by Laurence H. Tribe, James D. Esseks, Steven R. Shapiro, and Matthew A. Coles; for the Institute for Justice by William H. Mellor, Clint Bolick, Dana Berliner, and Randy E. Barnett; and for the National Lesbian and Gay Law Association et al. by Chai R. Feldblum, J. Paul Oetken, and Scott Ruskay-Kidd.

          [1] This last-cited critic of Bowers actually writes: "[Bowers] is correct nevertheless that the right to engage in homosexual acts is not deeply rooted in America's history and tradition." Posner, Sex and Reason, at 343.

          [2] While the Court does not overrule Bowers' holding that homosexual sodomy is not a "fundamental right," it is worth noting that the "societal reliance" upon that aspect of the decision has been substantial as well. See 10 U. S. C. § 654(b)(1) ("A member of the armed forces shall be separated from the armed forces . . . if . . . the member has engaged in . . . a homosexual act or acts"); Marcum v. McWhorter, 308 F. 3d 635, 640-642 (CA6 2002) (relying on Bowers in rejecting a claimed fundamental right to commit adultery); Mullins v. Oregon, 57 F. 3d 789, 793-794 (CA9 1995) (relying on Bowers in rejecting a grandparent's claimed "fundamental liberty interes[t]" in the adoption of her grandchildren); Doe v. Wigginton, 21 F. 3d 733, 739-740 (CA6 1994) (relying on Bowers in rejecting a prisoner's claimed "fundamental right" to on-demand HIV testing); Schowengerdt v. United States, 944 F. 2d 483, 490 (CA9 1991) (relying on Bowers in upholding a bisexual's discharge from the armed services); Charles v. Baesler, 910 F. 2d 1349, 1353 (CA6 1990) (relying on Bowers in rejecting fire department captain's claimed "fundamental" interest in a promotion); Henne v. Wright, 904 F. 2d 1208, 1214-1215 (CA8 1990) (relying on Bowers in rejecting a claim that state law restricting surnames that could be given to children at birth implicates a "fundamental right"); Walls v. Petersburg, 895 F. 2d 188, 193 (CA4 1990) (relying on Bowers in rejecting substantive-due-process challenge to a police department questionnaire that asked prospective employees about homosexual activity); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F. 2d 563, 570-571 (CA9 1988) (relying on Bowers' holding that homosexual activity is not a fundamental right in rejecting—on the basis of the rational-basis standard—an equalprotection challenge to the Defense Department's policy of conducting expanded investigations into backgrounds of gay and lesbian applicants for secret and top-secret security clearances).

          [3] The Court is quite right that "`[h]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry,'" ante, at 572. An asserted "fundamental liberty interest" must not only be "`deeply rooted in this Nation's history and tradition,'" Washington v. Glucksberg, 521 U. S. 702, 721 (1997), but it must also be "`implicit in the concept of ordered liberty,'" so that "`neither liberty nor justice would exist if [it] were sacrificed,'" ibid.Moreover, liberty interests unsupported by history and tradition, though not deserving of "heightened scrutiny," are still protected from state laws that are not rationally related to any legitimate state interest. Id., at 722. As I proceed to discuss, it is this latter principle that the Court applies in the present case.

You've reached the bottom of your content preview.
To view the rest in your browser, click here.
To export the complete content in DOC format, click the blue export button in the upper right corner of this page.

(Note: If you view the entire playlist, any changes you've made to export settings will be lost. Large playlists may temporarily freeze your browser while loading, as well.)