In The

Supreme Court of the United States




Decided May 2, 1983

Justice O’Connor, For the Court


Kolender v. Lawson, 461 U.S. 352 (1983), is a United States Supreme Court case concerning the constitutionality of vague laws that allow police to demand that "loiterers" and "wanderers" provide “credible and reliable” identification.

Topic: Due Process*Court vote: 7–2
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Joining O'Connor opinion: Justice BLACKMUN Justice BLACKMUN Justice BRENNAN Justice BRENNAN Chief Justice BURGER Chief Justice BURGER Justice MARSHALL Justice MARSHALL Justice POWELL Justice POWELL Justice STEVENS Justice STEVENS
Holding: The statute, as drafted and as construed by the state court, is unconstitutionally vague on its face within the meaning of the Due Process Clause of the Fourteenth Amendment by failing to clarify what is contemplated by the requirement that a suspect provide a 'credible and reliable' identification.
Citation: 461 U.S. 352 Docket: 81–1320Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR delivered the opinion of the Court.

This appeal presents a facial challenge to a criminal statute that requires persons who loiter or wander on the streets to provide a "credible and reliable" identification and to account for their presence when requested by a peace officer under circumstances that would justify a stop under the standards of Terry v. Ohio, 392 U. S. 1 (1968). [ Footnote 1 ] We conclude that the statute as it has been construed is unconstitutionally vague within the meaning of the Due Process Clause of the Fourteenth Amendment by failing to clarify what is contemplated by the requirement that a suspect provide a "credible and reliable" identification. Accordingly, we affirm the judgment of the court below.


Appellee Edward Lawson was detained or arrested on approximately 15 occasions between March, 1975, and January, 1977, pursuant to Cal.Penal Code Ann. § 647(e) (West 1970). [ Footnote 2 ] Lawson was prosecuted only twice, and was convicted once. The second charge was dismissed.

Lawson then brought a civil action in the District Court for the Southern District of California seeking a declaratory judgment that § 647(e) is unconstitutional, a mandatory injunction to restrain enforcement of the statute, and compensatory and punitive damages against the various officers who detained him. The District Court found that § 647(e) was overbroad because "a person who is stopped on less than probable cause cannot be punished for failing to identify himself." App. to Juris.Statement A-78. The District Court enjoined enforcement of the statute, but held that Lawson could not recover damages because the officers involved acted in the good faith belief that each detention or arrest was lawful.

Appellant H. A. Porazzo, Deputy Chief Commander of the California Highway Patrol, appealed the District Court decision to the Court of Appeals for the Ninth Circuit. Lawson cross-appealed, arguing that he was entitled to a jury trial on the issue of damages against the officers. The Court of Appeals affirmed the District Court determination as to the unconstitutionality of § 647(e). 658 F.2d 1362 (1981). The appellate court determined that the statute was unconstitutional in that it violates the Fourth Amendment's proscription against unreasonable searches and seizures, it contains a vague enforcement standard that is susceptible to arbitrary enforcement, and it fails to give fair and adequate notice of the type of conduct prohibited. Finally, the Court of Appeals reversed the District Court as to its holding that Lawson was not entitled to a jury trial to determine the good faith of the officers in his damages action against them, and remanded the case to the District Court for trial.

The officers appealed to this Court from that portion of the judgment of the Court of Appeals which declared § 647(e) unconstitutional and which enjoined its enforcement. We noted probable jurisdiction pursuant to 28 U.S.C. § 1254(2). 455 U.S. 999 (1982).


In the courts below, Lawson mounted an attack on the facial validity of § 647(e). [ Footnote 3 ]

In evaluating a facial challenge to a state law, a federal court must, of course, consider any limiting construction that a state court or enforcement agency has proffered.

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 455 U. S. 494, n. 5 (1982). As construed by the California Court of Appeal, [ Footnote 4 ] § 647(e) requires that an individual provide "credible and reliable" identification when requested by a police officer who has reasonable suspicion of criminal activity sufficient to justify a Terry detention. [ Footnote 5 ] People v. Solomon, 33 Cal.App.3d 429, 108 Cal.Rptr. 867 (1973). "Credible and reliable" identification is defined by the State Court of Appeal as identification "carrying reasonable assurance that the identification is authentic and providing means for later getting in touch with the person who has identified himself." Id. at 438, 108 Cal.Rptr. at 873. In addition, a suspect may be required to "account for his presence... to the extent that it assists in producing credible and reliable identification...." Id. at 438, 108 Cal.Rptr. at 872. Under the terms of the statute, failure of the individual to provide "credible and reliable" identification permits the arrest. [ Footnote 6 ]


Our Constitution is designed to maximize individual freedoms within a framework of ordered liberty. Statutory limitations on those freedoms are examined for substantive authority and content, as well as for definiteness or certainty of expression. See generally M. Bassiouni, Substantive Criminal Law 53 (1978).

As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Hoffman Estates v. Flipide, Hoffman Estates, Inc., supra; Smith v. Goguen, 415 U. S. 566 (1974); Grayned v. City of Rockford, 408 U. S. 104 (1972); Papachristou v. City of Jacksonville, 405 U. S. 156 (1972); Connally v. General Construction Co., 269 U. S. 385 (1926). Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of the vagueness doctrine

is not actual notice, but the other principal element of the doctrine -the requirement that a legislature establish minimal guidelines to govern law enforcement.

Smith, 415 U.S. at 415 U. S. 574. Where the legislature fails to provide such minimal guidelines, a criminal statute may permit "a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections." Id. at 415 U. S. 575. [ Footnote 7 ]

Section 647(e), as presently drafted and as construed by the state courts, contains no standard for determining what a suspect has to do in order to satisfy the requirement to provide a "credible and reliable" identification. As such, the statute vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute and must be permitted to go on his way in the absence of probable cause to arrest. An individual who police may think is suspicious but do not have probable cause to believe has committed a crime is entitled to continue to walk the public streets "only at the whim of any police officer" who happens to stop that individual under § 647(e). Shuttlesworth v. City of Birmingham, 382 U. S. 87, 382 U. S. 90 (1965). Our concern here is based upon the "potential for arbitrarily suppressing First Amendment liberties...." Id. at 382 U. S. 91. In addition, § 647(e) implicates consideration of the constitutional right to freedom of movement. See Kent v. Dulles, 357 U. S. 116, 357 U. S. 126 (1958); Aptheker v. Secretary of State, 378 U. S. 500, 378 U. S. 505 -506 (1964). [ Footnote 8 ]

Section 647(e) is not simply a "stop-and-identify" statute. Rather, the statute requires that the individual provide a "credible and reliable" identification that carries a "reasonable assurance" of its authenticity, and that provides "means for later getting in touch with the person who has identified himself." Solomon, 33 Cal.App.3d at 438, 108 Cal.Rptr. at 872-873. In addition, the suspect may also have to account for his presence "to the extent it assists in producing credible and reliable identification." Id. at 438, 108 Cal.Rptr. at 872.

At oral argument, the appellants confirmed that a suspect violates § 647(e) unless "the officer [is] satisfied that the identification is reliable." Tr. of Oral Arg. 6. In giving examples of how suspects would satisfy the requirement, appellants explained that a jogger, who was not carrying identification, could, depending on the particular officer, be required to answer a series of questions concerning the route that he followed to arrive at the place where the officers detained him, [ Footnote 9 ] or could satisfy the identification requirement simply by reciting his name and address. See id. at 6-10.

It is clear that the full discretion accorded to the police to determine whether the suspect has provided a "credible and reliable" identification necessarily "entrust[s] lawmaking to the moment-to-moment judgment of the policeman on his beat.'" Smith, supra, at 415 U. S. 575 (quoting Gregory v. Chicago, 394 U. S. 111, 394 U. S. 120 (1969) (Black, J., concurring)). Section 647(e)

furnishes a convenient tool for'harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure,'

Papachristou, 405 U.S. at 405 U. S. 170 (quoting Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 97 -98 (1940)), and "confers on police a virtually unrestrained power to arrest and charge persons with a violation." Lewis v. City of New Orleans, 415 U. S. 130, 415 U. S. 135 (1974) (POWELL, J., concurring in result). In providing that a detention under § 647(e) may occur only where there is the level of suspicion sufficient to justify a Terry stop, the State ensures the existence of "neutral limitations on the conduct of individual officers." Brown v. Texas, 443 U.S. at 443 U. S. 51. Although the initial detention is justified, the State fails to establish standards by which the officers may determine whether the suspect has complied with the subsequent identification requirement.

Appellants stress the need for strengthened law enforcement tools to combat the epidemic of crime that plagues our Nation. The concern of our citizens with curbing criminal activity is certainly a matter requiring the attention of all branches of government. As weighty as this concern is, however, it cannot justify legislation that would otherwise fail to meet constitutional standards for definiteness and clarity. See Lanzetta v. New Jersey, 306 U. S. 451 (1939). Section 647(e), as presently construed, requires that "suspicious" persons satisfy some undefined identification requirement, or face criminal punishment. Although due process does not require "impossible standards" of clarity, see United States v. Petrillo, 332 U. S. 1, 332 U. S. 7 -8 (1947), this is not a case where further precision in the statutory language is either impossible or impractical.


We conclude § 647(e) is unconstitutionally vague on its face because it encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute. [ Footnote 10 ] Accordingly, the judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.


[ Footnote 1 ]

California Penal Code Ann. § 647(e) (West 1970) provides:

Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:... (e) Who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification.

[ Footnote 2 ]

The District Court failed to find facts concerning the particular occasions on which Lawson was detained or arrested under § 647(e). However, the trial transcript contains numerous descriptions of the stops given both by Lawson and by the police officers who detained him. For example, one police officer testified that he stopped Lawson while walking on an otherwise vacant street because it was late at night, the area was isolated, and the area was located close to a high crime area. Tr. 266-267. Another officer testified that he detained Lawson, who was walking at a late hour in a business area where some businesses were still open, and asked for identification because burglaries had been committed by unknown persons in the general area. Id. at 207. The appellee states that he has never been stopped by police for any reason apart from his detentions under § 647(e).

[ Footnote 3 ]

The appellants have apparently never challenged the propriety of declaratory and injunctive relief in this case. See Steffel v. Thompson, 415 U. S. 452 (1974). Nor have appellants ever challenged Lawson's standing to seek such relief. We note that Lawson has been stopped on approximately 15 occasions pursuant to § 647(e), and that these 15 stops occurred in a period of less than two years. Thus, there is a "credible threat" that Lawson might be detained again under § 647(e). See Ellis v. Dyson, 421 U. S. 426, 421 U. S. 434 (1975).

[ Footnote 4 ]

In Wainwright v. Stone, 414 U. S. 21, 414 U. S. 22 -23 (1973), we 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.' Minnesota ex rel. Pearson v. Probate Court, 309 U. S. 270, 309 U. S. 273 (1940).

The Court of Appeals for the Ninth Circuit noted in its decision that the state intermediate appellate court has construed the statute in People v. Solomon, 33 Cal.App.3d 429, 108 Cal.Rptr. 867 (1973), that the State Supreme Court has refused review, and that Solomon has been the law of California for nine years. In these circumstances, we agree with the Ninth Circuit that the Solomon opinion is authoritative for purposes of defining the meaning of § 647(e). See 658 F.2d 1362, 1364-1365, n. 3 (1981).

[ Footnote 5 ]

The Solomon court apparently read Terry v. Ohio, 392 U. S. 1 (1968), to hold that the test for a Terry detention was whether the officer had information that would lead a reasonable man to believe that the intrusion was appropriate. The Ninth Circuit noted that, according to Terry, the applicable test under the Fourth Amendment requires that the police officer making a detention

be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.

392 U.S. at 392 U. S. 21. The Ninth Circuit then held that, although what Solomon articulated as the Terry standard differed from what Terry actually held, "[w]e believe that the Solomon court meant to incorporate in principle the standards enunciated in Terry." 658 F.2d at 1366, n. 8. We agree with that interpretation of Solomon. Of course, if the Solomon court misread Terry and interpreted § 647(e) to permit investigative detentions in situations where the officers lack a reasonable suspicion of criminal activity based on objective facts, Fourth Amendment concerns would be implicated. See Brown v. Texas, 443 U. S. 47 (1979).

In addition, the Solomon court appeared to believe that both the Terry detention and frisk were proper under the standard for Terry detentions, and since the frisk was more intrusive than the request for identification, the request for identification must be proper under Terry. See 33 Cal.App.3d at 435, 108 Cal.Rptr. at 870-871. The Ninth Circuit observed that the Solomon analysis was "slightly askew." 658 F.2d at 1366, n. 9. The court reasoned that, under Terry, the frisk, as opposed to the detention, is proper only if the detaining officer reasonably believes that the suspect may be armed and dangerous, in addition to having an articulable suspicion that criminal activity is afoot.

[ Footnote 6 ]

In People v. Caylor, 6 Cal.App.3d 51, 56, 85 Cal.Rptr. 497, 501 (1970), the court suggested that the State must prove that a suspect detained under § 647(e) was loitering or wandering for "evil purposes." However, in Solomon, which the court below and the parties concede is "authoritative" in the absence of a California Supreme Court decision on the issue, there is no discussion of any requirement that the State prove "evil purposes. "

[ Footnote 7 ]

Our concern for minimal guidelines finds its roots as far back as our decision in United States v. Reese, 92 U. S. 214, 92 U. S. 221 (1876):

It would certainly be dangerous if the legislature could 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. This would, to some extent, substitute the judicial for the legislative department of government.

[ Footnote 8 ]

In his dissent, JUSTICE WHITE claims that

[t]he upshot of our cases... is that whether or not a statute purports to regulate constitutionally protected conduct, it should not be held unconstitutionally vague on its face unless it is vague in all of its possible applications.

Post at 461 U. S. 370. The description of our holdings is inaccurate in several respects. First, it neglects the fact that we permit a facial challenge if a law reaches "a substantial amount of constitutionally protected conduct." Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 455 U. S. 494 (1982). Second, where a statute imposes criminal penalties, the standard of certainty is higher. See Winters v. New York, 333 U. S. 507, 333 U. S. 515 (1948). This concern has, at times, led us to invalidate a criminal statute on its face even when it could conceivably have had some valid application. See, e.g., Colautti v. Franklin, 439 U. S. 379, 439 U. S. 394 -401 (1979); Lanzetta v. New Jersey, 306 U. S. 451 (1939). The dissent concedes that "the overbreadth doctrine permits facial challenge of a law that reaches a substantial amount of conduct protected by the First Amendment...." Post at 461 U. S. 371. However, in the dissent's view, one may not "confuse vagueness and overbreadth by attacking the enactment as being vague as applied to conduct other than his own." Post at 461 U. S. 370. But we have traditionally viewed vagueness and overbreadth as logically related and similar doctrines. See, e.g., Keyishian v. Board of Regents, 385 U. S. 589, 385 U. S. 609 (1967); NAACP v. Button, 371 U. S. 415, 371 U. S. 433 (1963). See also Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 110-113 (1960).

No authority cited by the dissent supports its argument about facial challenges in the arbitrary enforcement context. The dissent relies heavily on Parker v. Levy, 417 U. S. 733 (1974), but in that case we deliberately applied a less stringent vagueness analysis "[b]ecause of the factors differentiating military society from civilian society." Id. at 417 U. S. 756. Hoffman Estates, supra, also relied upon by the dissent, does not support its position. In addition to reaffirming the validity of facial challenges in situations where free speech or free association are affected, see 455 U.S. at 455 U. S. 494, 455 U. S. 495, 455 U. S. 498 -499, the Court emphasized that the ordinance in Hoffman Estates "simply regulates business behavior," and that "economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow." Id. at 455 U. S. 499, 455 U. S. 498.

[ Footnote 9 ]

To the extent that § 647(e) criminalizes a suspect's failure to answer such questions put to him by police officers, Fifth Amendment concerns are implicated. It is a

settled principle that, while the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes, they have no right to compel them to answer.

Davis v. Mississippi, 394 U. S. 721, 394 U. S. 727, n. 6 (1969).

[ Footnote 10 ]

Because we affirm the judgment of the court below on this ground, we find it unnecessary to decide the other questions raised by the parties because our resolution of these other issues would decide constitutional questions in advance of the necessity of doing so. See Burton v. United States, 196 U. S. 283, 196 U. S. 295 (1905); Liverpool, N.Y. & P. S.S. Co. v. Commissioners of Emigration, 113 U. S. 33, 113 U. S. 39 (1885). See also Ashwander v. TVA, 297 U. S. 288, 297 U. S. 346 -347 (1936) (Brandeis, J., concurring). The remaining issues raised by the parties include whether § 647(e) implicates Fourth Amendment concerns, whether the individual has a legitimate expectation of privacy in his identity when he is detained lawfully under Terry, whether the requirement that an individual identify himself during a Terry stop violates the Fifth Amendment protection against compelled testimony, and whether inclusion of the Terry standard as part of a criminal statute creates other vagueness problems. The appellee also argues that § 647(e) permits arrests on less than probable cause. See Michigan v. DeFillippo, 443 U. S. 31, 443 U. S. 36 (1979).

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