dissenting. This is essentially a commercial struggle between two giant discount stores. But what is involved is more than their merchandising practices; what actually is involved is a statute which allows a proprietor to make a person guilty of a crime for doing nothing offensive.
The statute in question was passed in the early days of racial turmoil when stores were being challenged for discrimination. It permits a person to be ejected from an establishment for any reason, or no reason. The failure to obey an order to leave becomes a criminal act. The statute is altogether too vague to satisfy the usual constitutional requirements for criminal conduct. An invitee to a business cannot be held guilty of criminal trespass for no reason, and that is essentially what this statute permits. Such vague statutes have routinely been stricken. Brown v. Louisiana, 383 U.S. 131 (1969) (public library); Cox v. Louisiana, 379 U.S. 536(1965) (picketingin front of store); Shuttlesworth v. Birmingham, 382 U.S. 87 (1965) (demonstrating on a public street). Admittedly, those cases all relate to public areas rather than private businesses open to the public, and that is a valid distinction. But the court said in Shuttlesworth, supra:
That ordinance makes it a criminal offense for any person ‘to refuse or fail to comply with any lawful order, signal or direction of a police officer.’ Like the provisions of § 1142 discussed above, the literal terms of this ordinance are so broad as to evoke constitutional doubts of the utmost gravity.
Even so, in this case the statute permits a proprietor to make one guilty of criminal trespass when he is not. Regarding criminal trespass, 75 Am. Jur. 2d Trespass § 86 provides:
It does not seem to be clear, however, that although every trespass which is a disturbance of the peace is indictable, every trespass which is the subject of a civil action is not an indictable offense. To constitute the offense of criminal trespass, intentional acts must be used, or a wilful demonstration of force calculated to intimidate or alarm, or acts involving or tending to a breach of the peace. A mere invasion of private property without a disturbance of the peace is not a crime. However, although there is authority for the opposite view, it is usually held that even though an entry on premises is effected peaceably, if thereafter violent and abusive language is used and acts done reasonably calculated to intimidate or lead to a breach of the peace, the entrant is guilty of forcible trespass.
I have no quarrel with the right of a proprietor of a business in denying entrance to anyone undesirably dressed. Some formality in certain restaurants is rightfully expected — shoes and a shirt are the usual requirement for most establishments. Neither should any proprietor be required to endure disruptive conduct by a customer, however slight. But to be able to eject a customer or invitee for no such reason at any whim of the proprietor and make the refusal to leave a crime is going too far. The law does not permit such subjective determinations of criminal conduct. Lloyd Corp. v. Tamer, 407 U.S. 551 (1972), cited by the majority, is perfectly sound. The reason for no handbills was to prevent annoyance of customers, prohibit litter and avoid potential disturbances. The decision was made on a First Amendment basis.
Actually this case is somewhat ridiculous. It is not unlawful to enter a Walmart Store, hurriedly memorize the price of several items, run outside and write them down, and return innumerable times to repeat this comic performance; it is only the writing down that is prohibited. What about mumbling quietly into a hidden tape recorder? The statute allows a merchant to subjectively decide what is undesirable criminal conduct. It is entirely too subjective for constitutional standards. I would reverse and dismiss.