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BRENNAN, J., dissenting

464 U. S.

ing), and cases cited therein; Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 80-81 (1960).

The concern with arbitrary encroachments on freedom which underlies the notice requirement naturally has special force when the liberty interests at stake are fundamental. For this reason, we have demanded greater precision in laws which render conduct criminal or which may abridge First Amendment rights. See, e. g., Kolender v. Lawson, supra, at 358, and n. 8; Parker v. Levy, 417 U. S. 733, 756 (1974); Smith v. Goguen, 415 U. S. 566, 573, n. 10 (1974); Winters v. New York, 333 U. S. 507, 515 (1948). See infra, at 971. But the protections of the Due Process Clause are not limited to the most severe deprivations of liberty and property. As the Court held long ago, the requirement of fair warning does not prohibit particular types of penalties but rather "exaction of obedience to a rule or standard which [is] so vague and indefinite as really to be no rule or standard at all." A. B. Small Co. v. American Sugar Refining Co., 267 U. S. 233, 239 (1925). Following the principle of A. B. Small, we have frequently entertained claims that regulations of economic and professional activity are unconstitutionally vague, even when the law at issue depends on civil enforcement and has no apparent effect on First Amendment rights. See, e. g., Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 497-505 (1982); Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U. S. 35, 48-49 (1966); Barsky v. Board of Regents, 347 U. S. 442, 443, 448 (1954); Neblett v. Carpenter, 305 U. S. 297, 302-303 (1938).

The unexpected and ad hoc application of the city of Amarillo's vague personnel regulations to petitioners' conduct implicates precisely the concerns underlying the due process requirement of fair warning. There is not the slightest hint in either the language or the prior interpretations of the city's rules that they forbid private, off-duty, lawful, and consensual sexual relations. Whatever policy reasons may have justified the discipline, they had apparently never before been expressed by either the State, the city, or the Police Department. Indeed, as the Court of Appeals explained, petitioners had good reasons to believe that their relationship was not so proscribed. Upholding the discipline, therefore, is not merely unfair, it "sanction[s] the most indefensible sort of entrapment by the State." Raley v. Ohio, supra, at 438.

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III

For these reasons, I believe the discipline imposed on petitioners would have failed to satisfy the requirements of fair notice. even if no fundamental rights had been at stake. But petitioners' lawful, off-duty sexual conduct clearly implicates the "fundamental

right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy." Stanley v. Georgia, 394 U. S. 557, 564 (1969). Without identifying the precise contours of this right, we have recognized that it includes a broad range of private choices involving family life and personal autonomy. See, e. g., Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 426-427 (1983) (abortion); Santosky v. Kramer, 455 U. S. 745, 753 (1982) (child raising); Zablocki v. Redhail, 434 U. S. 374, 383-385 (1978) (marriage); Carey v. Population Services International, 431 U. S. 678, 684-685 (1977) (contraception); Moore v. City of East Cleveland, 431 U. S. 494, 499 (1977) (plurality opinion) (right to determine family living arrangements); Cleveland Board of Education v. LaFleur, 414 U. S. 632, 639-640 (1974) (pregnancy); Roe v. Wade, 410 U. S. 113, 152–153 (1973) (abortion); Eisenstadt v. Baird, 405 U. S. 438, 453-454 (1972) (contraception); id., at 460, 463–465 (WHITE, J., concurring in result); Loving v. Virginia, 388 U. S. 1, 12 (1967) (marriage); Griswold v. Connecticut, 381 U. S. 479, 483-486 (1965) (marital privacy); Prince v. Massachusetts, 321 U. S. 158, 166 (1944) (family relationships); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541-542 (1942) (procreation); Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925) (child rearing and education); Meyer v. Nebraska, 262 U. S. 390, 399 (1923) (same). These and other cases reflect the view that constitutionally protected liberty includes freedom from governmental disclosure of or interference with certain kinds of intensely personal decisions. The intimate, consensual, and private relationship between petitioners involved both the "interest in avoiding disclosure of personal matters, and . . . the interest in independence in making certain kinds of important decisions," Whalen v. Roe, 429 U. S. 589, 599–600 (1977), that our cases have recognized as fundamental. Therefore, the notice requirement of the Due Process Clause demands particular precision in this case. See supra, at 970.

Indeed, because petitioners' conduct involved fundamental rights, it could only be abridged to the extent necessary to achieve

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strong, clearly articulated state interests. See, e. g., Akron v. Akron Center for Reproductive Health, Inc., supra, at 427. The Court of Appeals concluded that petitioners' punishment served a hypothesized interest in "forbidding members of a quasi-military unit, especially those different in rank, to share an apartment or to cohabit." 701 F. 2d, at 483. Even assuming that this concern is sufficiently compelling to support explicit regulation of petitioners' off-duty sexual activities, the city's deterrent purposes obviously cannot be rationally served by regulations that fail to warn officers that such conduct is forbidden. Cf. Kelley v. Johnson, 425 U. S. 238, 239, n. 1, 247-248 (1976) (promulgation of explicit rule regulating police officers' hairstyles is rationally related to goal of making officers readily recognizable and inculcating esprit de corps); Arnett v. Kennedy, 416 U. S. 134, 160 (1974) (opinion of REHNQUIST, J.) (longstanding constructions and availability of official interpretations gave content to personnel regulations).

Public employers in general, and police departments in particular, may well deserve considerable latitude in enforcing codes of conduct. See Arnett v. Kennedy, supra; Parker v. Levy, 417 U. S. 773 (1974). It is hard to understand, however, how such a code can be either fairly or effectively enforced when employees are not told the standards of conduct to which they are expected to conform.

No. 82-6780.

MCILWAIN v. UNITED STATES; and
HINES v. UNITED STATES.

No. 82-6997.
Ct. App. D. C.
Certiorari denied. Reported below: 454 A. 2d 770.

JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.

I

Petitioners, convicted of second-degree burglary while armed, challenge their convictions on the ground that they were denied due process and the right to an impartial jury in violation of the Fifth and Sixth Amendments to the United States Constitution. Their claims stem from the fact that the deliberations of the jury that convicted them were disrupted by the intoxication of the

"As noted above, Whisenhunt was not Shawgo's supervisor.

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MARSHALL, J., dissenting

foreman of the jury. On the second day of deliberations, Friday, July 23, 1981, the trial judge received a note from members of the jury stating that they "would like to change the foreperson of the jury due to the fact that the present foreperson seems somewhat unable to preside this morning."" Lee v. United States, 454 A. 2d 770, 772 (D. C. 1982). That morning, prior to receiving the note, the judge's chambers had received a call indicating that the foreman of the jury would be late. In addition, a marshal suggested to the judge that there might be some question as to whether one of the jurors was intoxicated.

The trial judge held a separate voir dire of each member of the jury. The foreman of the jury denied any intoxication, and one juror stated that there was no indication that the foreman had been drinking. Nine members of the jury stated that it was their belief that the foreman had been drinking. Their estimation of her degree of intoxication varied from observations that she appeared to be "a little intoxicated" to claims that she was flatly "drunk."1

At the conclusion of the voir dire the trial court suggested that the petitioners agree to an arrangement whereby the foreman of the jury would be dismissed and the case would be submitted to the remaining 11 jurors. Petitioners rejected that suggestion and proposed instead that the judge declare a mistrial. The trial judge acknowledged that the juror in question was "somewhat

"JUROR CURLEY: I will tell it like it is. It seems like she is a little intoxicated...

"JUROR FRAZIER: As far as I am concerned, she had been drinking this morning, Your Honor.

...

"JUROR TYSON: She is not herself. She is just talking a lot. . . I assume she is under the influence of some kind. . . .

"JUROR FORD: I thought she was incompetent to preside because of the fact that she was a little intoxicated. . . .

"JUROR FLYNN: She did look like she was under the influence of alcohol . . I do not think she should be a juror on this this morning. . . "JUROR JACKSON: She seemed to be under the influence of alcohol, sir... I think she still is a little intoxicated, unreasonable. ..

...

"JUROR WATSON: Well, it seemed like she had been drinking and she wouldn't let anyone else talk; just difficult to accomplish anything. "JUROR HUNTER: To my knowledge I think she had just a little too much to drink to be in this position that we are in . . .

"JUROR WALL: She is drunk. . . ." Pet. for Cert. of McIlwain 9.

MARSHALL, J., dissenting

464 U. S.

under the influence in a fashion . . . that makes deliberations inappropriate at this time." Pet. for Cert. of McIlwain 11. But the judge nonetheless denied the motion for a mistrial. Instead, he ordered an immediate 3-day recess, noting his hope that the "offending juror [would be] perfectly sober and able to deliberate" on Monday when deliberations would resume. Lee v. United States, 454 A. 2d, at 773. The judge expressly asked the juror to "come back on Monday refreshed." Ibid. Before the jury resumed deliberations on Monday, the trial judge "look[ed] in" on the jurors and informed counsel that he detected no further disability. Ibid. The jury acquitted the petitioners of armed robbery but convicted them of second-degree burglary while armed. The District of Columbia Court of Appeals affirmed the petitioners' convictions on the ground that they had failed to show that they were prejudiced by the juror's intoxication. Justifying this conclusion, the Court of Appeals observed:

"[O]nly one juror was involved, and only a short period of the deliberations was called into question. There is no evidence that any drinking actually occurred in the jury room or during the course of the trial, and the jury foreperson was not conclusively shown to have been intoxicated at the time of voir dire. The recess, coupled with the judge's checking in on the jury on Monday, both of which were done with the concurrence of appellants' counsel, foreclosed the possibility of prejudice. Under these circumstances, it cannot reasonably be said that the appellants were substantially deprived of their right to the judgment of objective and competent jurors." Id., at 774.

This Court should grant certiorari and review the Court of Appeals' decision because it raises serious questions regarding the standard to be applied in determining the conditions under which a juror's misconduct and incapacity deprive a defendant of his Fifth Amendment right to due process and his Sixth Amendment right to an impartial jury.

II

This Court has repeatedly insisted in a wide variety of contexts that the right to be tried before a jury capable and willing to decide a case solely on the evidence before it is a cornerstone of our

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