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Vagrancy (Begging), § 947.02(4) – Vague and Overbroad

State v. Bradley S. Johnson, Outagamie Co. Circ. Ct. No. 12CM495

circuit court decision; case activity

Panhandling prosecution under § 947.02(4) is dismissed with prejudice because the vagrancy statute is unconstitutional under first amendment analysis: panhandling (“begging”) is a form of protected speech and its criminalization under § 947.02(4) is fatally vague and overbroad. State v. Starks, 51 Wis.2d 256, 186 N.W.2d 245 (1971) (loitering statute unconstitutional as providing insufficient notice of prohibited conduct, and criminalizing innocent conduct), and Ledford v. State, 652 So.2d  1254 (Fla. App. 1995) (begging ordinance unconstitutionally vague because insufficient guidelines to prevent arbitrary enforcement), discussed and applied.

Note that this trial-level decision isn’t binding, but nonetheless may be cited in any court throughout the state for its persuasive effect, Brandt v. LIRC, 160 Wis. 2d 353, 361-63, 466 N.W.2d 673 (Ct. App. 1991) (“We conclude that Rule 809.23(3) does not ban citations to unpublished circuit court opinions.”), aff’d, 166 Wis. 2d 623, 480 N.W.2d 494 (1992). The text of § (Rule) 809.23(3) has since been modified to permit citation to certain unpublished court of appeals opinions, but this modification does not appear to have any impact on the just-cited principle.

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