Petition for Writ - Stephen Halbrook

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vague, but suggested that the ordinance would have been facially
vague had it been less clear — “a regulation of ‘paraphernalia’
alone would not provide much warning of the nature of the items
regulated.” Id. at 500 n.17.
Kolender v. Lawson, 461 U.S. 352, 353-54 (1983), held
as vague on its face a requirement that persons who loiter provide
a “credible and reliable” identification, which the police would
determine and which thus lacked any standard. “[T]his is not a
case where further precision in the statutory language is either
impossible or impractical.” Id. at 361.
Kolender rejected the argument that a statute “should not
be held unconstitutionally vague on its face unless it is vague in all
of its possible applications.” Id. at 358 n.8. It explained:
The description of our holdings is inaccurate in several
respects. First, it neglects the fact that we permit a facial
challenge if a law reaches “a substantial amount of
constitutionally protected conduct.” . . . Second, where a
statute imposes criminal penalties, the standard of certainty
is higher. . . . This concern has, at times, led us to invalidate
a criminal statute on its face even when it could conceivably
have had some valid application. See, e.g., . . . Lanzetta
v. New Jersey, 306 U.S. 451 (1939).
Kolender, 461 U.S. at 358-59 n.8. Again, Lanzetta did not
involve constitutionally-protected conduct, yet it invalidated the
statute on its face even though it may have had some valid
application. 16 Thus, the above rule applies to all criminal provisions.
Kolender also rejected the view that a facial challenge is
16
For instance, in Lanzetta the defendant might have confessed to
being a “gang” member, just as in Kolender a person may have exhibited a
passport and a driver’s license as “credible and reliable” identification.