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The 2d U.S. Circuit Court of Appeals has ruled that a section of New York City’s administrative code that forbids the placing of boxes and the erection of obstructions in public places was not unconstitutionally overbroad. Betancourt v. Bloomberg, No. 04-0926. In 1997, New York City police arrested Augustine Betancourt, who was sleeping in a “tube” made of three folded cardboard boxes in a public park. He was one of 25 people arrested by the police that night in various downtown parks. After being strip searched, Betancourt was given a desk appearance ticket charging him with a violation of N.Y. City Admin. Code � 16-122(b). The section makes it unlawful to leave “any box, barrel, bale of merchandise or other personal property . . . upon any marginal or public street or any public place, or to erect . . . any shed, building or other obstruction.” After prosecutors declined to prosecute him, Betancourt sued for damages under 42 U.S.C. 1983. He claimed that the code section was unconstitutionally overbroad and unconstitutionally vague as applied to him, and that then-Mayor Rudolph Giuliani was abusing the section to sweep homeless people off sidewalks and out of parks as part of his “quality of life” campaign. Betancourt also claimed his arrest was without probable cause and that he had been unreasonably strip searched. John S. Martin, then a judge for the Southern District of New York, granted the city’s motion for partial summary judgment in 2000. He said that the law was clear enough to give notice to Betancourt as to the prohibited conduct. The judge later granted summary judgment for Betancourt on the city’s liability for his strip-search claim. That claim was eventually settled. The 2d Circuit affirmed. Writing on behalf of the court, Judge Amalya Kearse said that as applied, the statute does not “impinge on constitutionally protected rights. “Betancourt does not contend his construction of a cardboard enclosure in which he could sleep, with some protection from the cold, was intended to be expressive activity protected by the First Amendment,” she said. “Nor does � 16-122(b) impinge on Betancourt’s other constitutionally protected rights.” Therefore, she said, Martin was correct to apply a “moderately stringent” vagueness test. Kearse said the plain dictionary meanings of the words made the conduct for which Betancourt was arrested clearly illegal. “An ordinary person would understand that an agglomeration of boxes large enough for a man to fit into would be ‘something that obstructs or impedes,’ ” she said. Betancourt had insisted that, according to Section 16-122(b), sheds and buildings are permanent structures, while his tent was a temporary construction. But the circuit court disagreed, saying that had “lawmakers intended ‘obstruction’ to mean a permanent edifice, they could have simply added that adjective before ‘obstruction.’ “ In his dissent, Judge Guido Calabresi said that the arrest of Betancourt “purportedly for ‘erecting . . . an obstruction’ in a public park, presents a textbook illustration of why vague criminal laws are repugnant to the Due Process Clause of the Fourteenth Amendment.” Believing the statute to be unconstitutionally vague, Calabresi said, “It is, as a result, troubling to me that the majority goes to such lengths to find clarity and guidance in a city ordinance that provides little of either.”

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