Johnson v. Athens-Clarke County

Carley, Justice,

concurring.

I am compelled to join in the reversal of the judgment in this case because I agree that the additional language in the city’s loitering ordinance distinguishes it from that which we upheld against constitutional attacks in State v. Burch, 264 Ga. 231 (443 SE2d 483) (1994) and Bell v. State, 252 Ga. 267 (313 SE2d 678) (1984). As the majority correctly holds, those “circumstances which cause a justifiable and reasonable alarm or immediate concern that such person is involved in unlawful drug activity” sets an unconstitutionally vague standard, as it fails to “provide fair warning, to persons of ordinary intelligence as to what it prohibits so that they may act accordingly.” Satterfield v. State, 260 Ga. 427, 428 (395 SE2d 816) (1990). Compare State v. Burch, supra; Bell v. State, supra. Furthermore, as the majority properly notes, the relevant portion of the ordinance is also void for vagueness because it allows the arresting officer to exercise such *389unguided discretion as to create an unacceptably subjective test “ ‘for ascertaining the line separating guilty from innocent acts.’ [Cit.]” Bullock v. City of Dallas, 248 Ga. 164, 168 (2) (281 SE2d 613) (1981). Compare State v. Burch, supra; Bell v. State, supra.

Decided May 8, 2000. Paul J. Vignos, Arthur T. Crosby III, for appellant. Kenneth W. Mauldin, Solicitor, Todd A. Brooks, Assistant Solicitor, for appellee.