Bouie v. City of Columbia

Supreme Court of the United States · 1964 · Criminal Law

Criminal LawDue ProcessFair WarningJudicial Construction of Criminal Statutesdue processfair warningretroactivityjudicial enlargement

Facts

Petitioners, two Black college students, sat in the restaurant section of Eckerd's Drug Store, where Black customers were not served food, though they were invited to use the store's other departments. No sign or notice prohibited their entry into the restaurant before they entered and sat down; only afterward did an employee place a chain with a "no trespassing" sign, and the manager and police asked them to leave. They refused and were arrested; although charged with breach of the peace, they were not convicted on that charge, but were convicted under a trespass statute that by its terms prohibited entry after notice forbidding entry. The South Carolina Supreme Court affirmed by interpreting that statute to also prohibit remaining after notice to leave.

Issue

Whether the Due Process Clause permits a state court to affirm criminal convictions by retroactively construing a narrow trespass statute to cover conduct that its text did not previously cover. More specifically, whether petitioners received constitutionally sufficient fair warning that remaining on premises after being asked to leave was criminal under a statute prohibiting only entry after notice not to enter.

Rule

Due process requires that a criminal statute give fair warning of the conduct it makes criminal. That requirement is violated not only by vague statutory language, but also by an unforeseeable and retroactive judicial expansion of a narrow and precise criminal statute; if a judicial construction is unexpected and indefensible by reference to prior law, it may not be applied retroactively to past conduct.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Savannah, Georgia, a statute makes it a misdemeanor to "enter a fenced storage yard after posted notice forbidding entry." Lena Ortiz walked into an unfenced equipment lot during business hours with the owner’s permission to ask about buying scrap metal. After an argument, the owner told her to leave, she refused, and the Georgia Supreme Court later interpreted the statute for the first time to cover remaining after notice to depart.

If that new interpretation is applied to uphold Lena’s conviction for her earlier conduct, what is the strongest constitutional objection?

Explanation. The majority held that due process requires fair warning of what conduct is criminal. That requirement is violated when a state court unexpectedly enlarges a narrow, precise criminal statute and then applies that new construction retroactively to past conduct. The Court treated such retroactive judicial enlargement as operating like an ex post facto law, but the direct constitutional basis against the court is the Due Process Clause, not the Ex Post Facto Clause itself.