Honorable Sidney M. Aronovitz, U.S. District Judge for the Southern District of Florida, sitting by designation

In August 1982, the State's Attorney notified the concerned law enforcement agencies that no information would be filed against Hershey. The constitutionality of the Clearwater ordinance was thus never challenged at a trial

Subsequent to the arrest of appellant Hershey and to the appellate court ruling on a similar ordinance in City of Pompano Beach v. Capalbo, 455 So. 2d 468 (Fla.App. 4 Dist.1984), petition for review denied, 461 So. 2d 113 (Fla.), cert. denied, 474 U.S. 824, 106 S. Ct. 80, 88 L. Ed. 2d 65 (1985), the City of Clearwater amended the ordinance in question, originally codified as Ordinance 120.18, striking the words "or sleep." The amended version is currently in effect as Ordinance 150.13 of the Clearwater Code

The district court dismissed the count against the City of Clearwater, holding that the section 1983 action for damages could not stand because the ordinance was not " 'so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws.' " (quoting Michigan v. DeFillippo, 443 U.S. 31, 38, 99 S. Ct. 2627, 2632, 61 L. Ed. 2d 343 (1979)). This is an incorrect statement of the law as to the city's liability. See generally Owen v. City of Independence, Mo., 445 U.S. 622, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980) (a municipality has no immunity from liability under the Civil Rights Act deriving from its constitutional violations; good faith will not serve as a defense for the city itself)

The preamble of the ordinance sets out the city's purpose in passing the new law:

WHEREAS, it has been observed that persons have been sleeping in recreational vehicles and motor vehicles in the public street and on public property; and

WHEREAS, this practice constitutes a hazard to public health and safety and tends to discourage other persons from entering onto public beaches, parks and other public property; and

WHEREAS, this practice results in the public subsidizing housing for persons who otherwise would seek lodging at motels, travel trailer parks or similar establishments; ...

While we do not reach the question of whether the ordinance as written--that is, including the prohibition against sleeping--is unconstitutional, it is unclear whether the ordinance in its original form was either overbroad or vague for federal constitutional purposes

The concept of overbreadth will usually only apply when a case involves constitutionally protected conduct. Such a challenge will be upheld only when "the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail." Village of Hoffman Estates v. Flipside, 455 U.S. 489, 494, 102 S. Ct. 1186, 1191, 71 L. Ed. 2d 362 (1982). Nothing in the pertinent ordinance is aimed at curbing expressive conduct; the sleeping prohibited appears to be "of the general kind, which enjoys no peculiar constitutional advantage." People v. Davenport, 222 Cal. Rptr. 736, 738, 176 Cal. App. Supp. 3d 10 (Cal.Super.1985), cert. denied, 475 U.S. 1141, 106 S. Ct. 1794, 90 L. Ed. 2d 339 (1986). The overbreadth challenge, then, would probably fail because the Clearwater ordinance did not reach a substantial amount of constitutionally protected activity (and probably reached no constitutionally protected conduct at all): it was in the nature of a valid exercise of the city's broad police powers. Clark v. Community for Creative Non-Violence, supra.

When an ordinance implicates no constitutionally protected conduct, a challenge as to the vagueness of the enactment on its face should succeed only if the enactment is impermissibly vague in all its applications. Hoffman Estates, 455 U.S. at 496, 102 S.Ct. at 1191, 1193. According to Florida (and general) rules of statutory construction, "when reasonably possible, a statute should be construed in such a manner as to avoid conflict with the Constitution." Schultz v. State, 361 So. 2d 416, 418 (Fla.1978). Furthermore, "[c]onstruction of a statute which would lead to an absurd result should be avoided." Winter v. Playa del Sol, Inc., 353 So. 2d 598, 599 (Fla.App. 4 Dist.1977); City of St. Petersburg v. Siebold, 48 So. 2d 291, 294 (Fla.1950) (en banc) ("The courts will not ascribe to the Legislature an intent to create absurd or harsh consequences, and so an interpretation avoiding absurdity is always preferred."). Like the dissent in Capalbo, supra, we believe that it probably would be possible to give a limiting construction to the words "or sleep" in the Clearwater ordinance so as to effectuate the purpose of the ordinance (no use of vehicles as homes or hotels) and to eliminate any possibility that innocent nappers--newborn babes or otherwise--would be subject to the constraints of the enactment. In conjunction with a limiting judicial construction, the original ordinance very probably would not have been vague and therefore might well have passed constitutional muster. There is, incidentally, no evidence that Clearwater ever applied the ordinance to passengers in moving vehicles.

Appellant bases his arguments against constitutionality and against qualified immunity for the arresting officer in large part on three decisions: State v. Penley, 276 So. 2d 180 (Fla.App. 2 Dist.) (statute prohibiting sleeping in public places was unconstitutional), cert. denied, 281 So. 2d 504 (Fla.1973); Capalbo, supra, (statute forbidding lodging and sleeping in vehicles in public areas--with language virtually identical to that of Clearwater ordinance--unconstitutionally vague and overbroad because of sleeping language); State v. Smith, 15 Fla.Supp.2d 13 (Monroe County Ct. Jan. 31, 1986) (statute prohibiting sleeping in a public place or in a vehicle in a public place unconstitutional). None of these decisions is by Florida's highest court.

At the time of Hershey's arrest in July 1982, the trial court in Capalbo had already found the Pompano Beach ordinance unconstitutional. We note that this was an apparently unpublished decision of a trial court in a state judicial circuit that did not encompass Clearwater. The reported appellate decision in that case first came down some twenty-three months after Hershey's arrest. Also, the Capalbo decision was not unanimous: one judge dissented, stating that he would construe the ordinance to be constitutional. Furthermore, other courts have confronted laws involving sleeping in public places and have found them neither overbroad nor vague. See Davenport, supra (ordinance prohibiting sleeping in certain public areas during certain hours and prohibiting sleeping in public streets was constitutional; also cases cited therein); Seeley v. State, 134 Ariz. 263, 655 P.2d 803 (Ariz.App.1982) (Phoenix ordinance prohibiting lying, sleeping, or sitting on public streets and sidewalks was constitutional).

Thus, even if we held the Clearwater ordinance to be unconstitutional, we would hold that Officer Swain's conduct in arresting appellant Hershey for violation of that ordinance did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known," Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982), and she would therefore be entitled to immunity.

Appellant in his brief on appeal disputes certain facts of the arresting officer's affidavit (whether or not he was actually asleep or even had his eyes closed, how far off the roadway his car was parked, whether certain personal items in the car were in plain sight or were hidden by the mattress). Appellant did not, however, bring such disputes to the attention of the district court as he could have done. Because the district court did not have appellant's deposition and other material before it in ruling on the summary judgment motion, that court could not and did not consider them in making its ruling. On appeal, we decline to consider material not before the district court which appellant now wishes to make part of the record, see Harris v. United States, 768 F.2d 1240, 1242 (11th Cir.1985), cert. granted, judgment vacated, and case remanded on other grounds, --- U.S. ----, 107 S. Ct. 450, 93 L. Ed. 2d 398 (1986); Kemlon Products & Development Co. v. United States, 646 F.2d 223, 224 (5th Cir.), cert. denied, 454 U.S. 863, 102 S. Ct. 320, 70 L. Ed. 2d 162 (1981); In re Yarn Processing Patent Validity Litigation, 536 F.2d 1025, 1026 (5th Cir.1976), although we recognize that we have the power to do so when the circumstances so warrant, see First Alabama Bank of Montgomery v. Parsons Steel, Inc., 825 F.2d 1475, 1487 (11th Cir.1987); IBM Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir.1975) ("absent extraordinary circumstances, federal appellate courts will not consider rulings or evidence which are not part of the trial record"). Even if the disputed facts were resolved in appellant's favor, the undisputed facts would be sufficient to establish probable cause for arrest for lodging in a public place