author: Justice O’Connor Justice Blackmun, Justice Souter,

text:
    YEE et al. v. CITY OF ESCONDIDO, CALIFORNIA
    No. 90-1947.
    Argued January 22, 1992
    Decided April 1, 1992

      O’CONNOR, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Stevens, Scalia, Kennedy, and Thomas, JJ., joined. Blackmun, J., post, p. 639, and SouteR, J., post, p. 539, filed opinions concurring in the judgment.

      Robert J. Jagiello argued the cause for petitioners. With him on the briefs was Robert H. Bork.

      Carter G. Phillips argued the cause for respondent. With him on the brief were Rex E. Lee, Donald R. Lincoln, Linda B. Reich, David R. Chapman, and Jeffrey R. Epp.

      Briefs of amici curiae urging reversal were filed for Action in Santa Monica by Brenda Powers Barnes; for the Apartment Association of Greater Los Angeles by Stephen L. Jones; for the California Association of Realtors et al. by John E. Mueller, Marguerite Mary Leoni, Laurene K. Janik and William M. Pfeiffer; for the Florida Manufactured Housing Association, Inc., by Jack M. Skelding, Jr.; for the Institute of Real Estate Management of the National Association of Realtors by Jonathan T. Howe, Terrence Hutton, and Henry M. Schajfer; for the Manufactured Housing Educational Trusts of Los Angeles County, California, et al. by Jerrold A Fadem, George Kimball, Charles S. Treat, and Kim N. A Richards; for the Manufactured Housing Educational Trust of Santa Clara County by Robert K. Best; for the Pacific Legal Foundation by Ronald A. Zumbrun, Edward J. Connor, Jr., and Timothy A Bittle; for the Rent Stabilization Association of New York City,' Inc., et al. by Erwin N. Griswold and Stephen J. Goodman; for the Washington Legal Foundation et al. by Daniel

        J. Popeo, Paul D. Kamenar, and Jonathan K. Van Patten; and for the Western Mobilehome Association by Michael A Willemsen and David Spangenberg.

      Briefs of amici curiae urging affirmance were filed for the city of San Jose et al. by Joan R. Gallo, George Rios, Manuela Albuquerque, Stanley C. Hatch, Glenn R. Watson, William Camil, Lynn R. McDouqal, Scott H. Howard, David J. Erwin, Robert L. Kress, Charles J. Williams, David H. Hirsch, Steven F. Nord, Marc G. Hynes, John L. Cook, Daniel S. Hent-schke, Gary L. Gillig, Jean Leonard Harris, David E. Schricker, Michael F. Dean, James Penman, Peter D. Bulens, John W. Witt, Louise H. Renne, James P. Botz, Mark G. Sellers, Robert B. Ewing, Angil P. Morris, James G. Rourke, and Thomas Haas; for the American Association of Retired Persons by Steven S. Zalesnick and Joan Wise; for the city of Santa Monica et al. by Robert M. Myers, Joseph Lawrence, Martin Tachiki, Barry Rosenbaum, David Pettit, Karl M. Manheim, and Shane Stark; for the Golden State Mobilhome Owners League, Inc., et al. by Fran M. Layton, Joseph L. Sax, and Bruce E. Stanton; for the International City/County Management Association et al. by Richard Ruda, Andrew G. Schultz, Edward Ricco, Charles K Purcell, and James P Bieg; for the National Trust for Historic Preservation in the United States et al. by Lloyd N. Cutler, Louis R. Cohen, David R. Johnson, Jerold S. Kay den, and Elizabeth S. Merritt; and for the New Jersey Department of the Public Advocate by David Ben-Asher.

      Briefs of amici curiae were filed for the Arizona Mobile Housing Association, Inc., by Michael A Parham; for the California Mobile Home Park-owners Alliance by Michael M. Berger and Joel G. Hirsch; for the Escondido Mobilehome Owners’ Positive Action Committee by Richard I. Singer and Elvi J. Olesen; and for the Manufactured Housing Association in New Jersey, Inc., by Christopher J. Hanlon and Henry Ñ. Partner.

   Justice O’Connor

delivered the opinion of the Court.

The Takings Clause of the Fifth Amendment provides: “[N]or shall private property be taken for public use, without just compensation.” Most of our cases interpreting the Clause fall within two distinct classes. Where the government authorizes a physical occupation of property (or actually takes title), the Takings Clause generally requires compensation. See, e. g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426 (1982). But where the government merely regulates the use of property, compensation is required only if considerations such as the purpose of the regulation or the extent to which it deprives the owner of the economic use of the property suggest that the regulation has unfairly singled out the property owner to bear a burden that should be borne by the public as a whole. See, e. g., Penn Central Transportation Co. v. New York City, 438 U. S. 104, 123-125 (1978). The first category of cases requires courts to apply a clear rule; the second necessarily entails complex factual assessments of the purposes and economic effects of government actions.

Petitioners own mobile home parks in Escondido, California. They contend that a local rent control ordinance, when viewed against the backdrop of California’s Mobilehome Residency Law, amounts to a physical occupation of their property, entitling them to compensation under the first category of cases discussed above.

I

The term “mobile home” is somewhat misleading. Mobile homes are largely immobile as a practical matter, because the cost of moving one is often a significant fraction of the value of the mobile home itself. They are generally placed permanently in parks; once in place, only about 1 in every 100 mobile homes is ever moved. Hirsch & Hirsch, Legal-Economic Analysis of Rent Controls in a Mobile Home Context: Placement Values and Vacancy Decontrol, 35 UCLA L. Rev. 399, 405 (1988). A mobile home owner typically rents a plot of land, called a “pad,” from the owner of a mobile home park. The park owner provides private roads within the park, common facilities such as washing machines or a swimming pool, and often utilities. The mobile home owner often invests in site-specific improvements such as a driveway, steps, walkways, porches, or landscaping. When the mobile home owner wishes to move, the mobile home is usually sold in place, and the purchaser continues to rent the pad on which the mobile home is located.

In 1978, California enacted its Mobilehome Residency Law, Cal. Civ. Code Ann. § 798 (West 1982 and Supp. 1991). The legislature found “that, because of the high cost of moving mobilehomes, the potential for damage resulting therefrom, the requirements relating to the installation of mobilehomes, and the cost of landscaping or lot preparation, it is necessary that the owners of mobilehomes occupied within mobilehome parks be provided with the unique protection from actual or constructive eviction afforded by the provisions of this chapter.” § 798.55(a).

The Mobilehome Residency Law limits the bases upon which a park owner may terminate a mobile home owner’s tenancy. These include the nonpayment of rent, the mobile home owner’s violation of law or park rules, and the park owner’s desire to change the use of his land. §798.56. While a rental agreement is in effect, however, the park owner generally may not require the removal of a mobile home when it is sold. § 798.73. The park owner may neither charge a transfer fee for the sale, § 798.72, nor disapprove of the purchaser, provided that the purchaser has the ability to pay the rent, § 798.74. The Mobilehome Residency Law contains a number of other detailed provisions, but none limit the rent the park owner may charge.

In the wake of the Mobilehome Residency Law, various communities in California adopted mobile home rent control ordinances. See Hirsch & Hirsch, supra, at 408-411. The voters of Escondido did the same in 1988 by approving Proposition K, the rent control ordinance challenged here. The ordinance sets rents back to their 1986 levels and prohibits rent increases without the approval of the city council. Park owners may apply to the council for rent increases at any time. The council must approve any increases it determines to be “just, fair and reasonable,” after considering the following nonexclusive list of factors: (1) changes in the Consumer Price Index; (2) the rent charged for comparable mobile home pads in Escondido; (3) the length of time since the last rent increase; (4) the cost of any capital improvements related to the pad or pads at issue; (5) changes in property taxes; (6) changes in any rent paid by the park owner for the land; (7) changes in utility charges; (8) changes in operating and maintenance expenses; (9) the need for repairs other than for ordinary wear and tear; (10) the amount and quality of services provided to the affected tenant; and (11) any lawful existing lease. Ordinance § 4(g), App. 11-12.

Petitioners John and Irene Yee own the Friendly Hills and Sunset Terrace Mobile Home Parks, both of which are located in the city of Escondido. A few months after the adoption of Escondido’s rent control ordinance, they filed suit in San Diego County Superior Court. According to the complaint, “[t]he rent control law has had the effect of depriving the plaintiffs of all use and occupancy of [their] real property and granting to the tenants of mobilehomes presently in The Park, as well as the successors in interest of such tenants, the right to physically permanently occupy and use the real property of Plaintiff.” Id., at 3, ¶ 6. The Yees requested damages of $6 million, a declaration that the rent control ordinance is unconstitutional, and an injunction barring the ordinance’s enforcement. Id., at 5-6.

In their opposition to the city’s demurrer, the Yees relied almost entirely on Hall v. Santa Barbara, 833 F. 2d 1270 (CA9 1987), cert. denied, 485 U. S. 940 (1988), which had held that a similar mobile home rent control ordinance effected a physical taking under Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982). The Yees candidly admitted that “in fact, the Hall decision was used [as] a guide in drafting the present Complaint.” 2 Tr. 318, Points & Authorities in Opposition to Demurrer 4. The Superior Court nevertheless sustained the city’s demurrer and dismissed the Yees’ complaint. App. to Pet. for Cert. C-42.

The Yees were not alone. Eleven other park owners filed similar suits against the city shortly afterwards, and all were dismissed. By stipulation, all 12 cases were consolidated for appeal; the parties agreed that all would be submitted for decision by the California Court of Appeal on the briefs and oral argument in the Yee case.

The Court of Appeal affirmed, in an opinion primarily devoted to expressing the court’s disagreement with the reasoning of Hall. The court concluded: “Loretto in no way suggests that the Escondido ordinance authorizes a permanent physical occupation of the landlord’s property and therefore constitutes a per se taking.” 224 Cal. App. 3d 1349, 1358, 274 Cal. Rptr. 551, 557 (1990). The California Supreme Court denied review. App. to Pet. for Cert. B-41.

Eight of the twelve park owners, including the Yees, joined in a petition for certiorari. We granted certiorari, 502 U. S. 905 (1991), to resolve the conflict between the decision below and those of two of the Federal Courts of Appeals, in Hall, supra, and Pinewood Estates of Michigan v. Barnegat Township Leveling Board, 898 F. 2d 347 (CA3 1990).

II

Petitioners do not claim that the ordinary rent control statutes regulating housing throughout the country violate the Takings Clause. Brief for Petitioners 7, 10. Cf. Pennell v. San Jose, 485 U. S. 1, 12, n. 6 (1988); Loretto, supra, at 440. Instead, their argument is predicated on the unusual economic relationship between park owners and mobile home owners. Park owners may no longer set rents or decide who their tenants will be. As a result, according to petitioners, any reduction in the rent for a mobile home pad causes a corresponding increase in the value of a mobile home, because the mobile home owner now owns, in addition to a mobile home, the right to occupy a pad at a rent below the value that would be set by the free market. Cf. Hirsch & Hirsch, 35 UCLA L. Rev., at 425. Because under the California Mo-bilehome Residency Law the park owner cannot evict a mobile home owner or easily convert the property to other uses, the argument goes, the mobile home owner is effectively a perpetual tenant of the park, and the increase in the mobile home’s value thus represents the right to occupy a pad at below-market rent indefinitely. And because the Mobile-home Residency Law permits the mobile home owner to sell the mobile home in place, the mobile home owner can receive a premium from the purchaser corresponding to this increase in value. The amount of this premium is not limited by the Mobilehome Residency Law or the Escondido ordinance. As a result, petitioners conclude, the rent control ordinance has transferred a discrete interest in land — the right to occupy the land indefinitely at a submarket rent — from the park owner to the mobile home owner. Petitioners contend that what has been transferred from park owner to mobile home owner is no less than a right of physical occupation of the park owner’s land.

This argument, while perhaps within the scope of our regulatory taking cases, cannot be squared easily with our cases on physical takings. The government effects a physical taking only where it requires the landowner to submit to the physical occupation of his land. “This element of required acquiescence is at the heart of the concept of occupation.” FCC v. Florida Power Corp., 480 U. S. 245, 252 (1987). Thus whether the government floods a landowner’s property, Pumpelly v. Green Bay Co., 13 Wall. 166 (1872), or does no more than require the landowner to suffer the installation of a cable, Loretto, supra, the Takings Clause requires compensation if the government authorizes a compelled physical invasion of property.

But the Escondido rent control ordinance, even when considered in conjunction with the California Mobilehome Residency Law, authorizes no such thing. Petitioners voluntarily rented their land to mobile home owners. At least on the face of the regulatory scheme, neither the city nor the State compels petitioners, once they have rented their property to tenants, to continue doing so. To the contrary, the Mobilehome Residency Law provides that a park owner who wishes to change the use of his land may evict his tenants, albeit with 6 or 12 months notice. Cal. Civ. Code Ann. § 798.56(g). Put bluntly, no government has required any physical invasion of petitioners’ property. Petitioners’ tenants were invited by petitioners, not forced upon them by the government. See Florida Power, supra, at 252-253. While the “right to exclude” is doubtless, as petitioners assert, “one of the most essential sticks in the bundle of rights that are commonly characterized as property,” Kaiser Aetna v. United States, 444 U. S. 164, 176 (1979), we do not find that right to have been taken from petitioners on the mere face of the Escondido ordinance.

Petitioners suggest that the statutory procedure for changing the use of a mobile home park is in practice “a kind of gauntlet,” in that they are not in fact free to change the use of their land. Reply Brief for Petitioners 10, n. 16. Because petitioners do not claim to have run that gauntlet, however, this case provides no occasion to consider how the procedure has been applied to petitioners’ property, and we accordingly confine ourselves to the face of the statute. See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 493-495 (1987). A different case would be presented were the statute, on its face or as applied, to compel a landowner over objection to rent his property or to refrain in perpetuity from terminating a tenancy. See Florida Power, supra, at 251-252, n. 6; see also Nollan v. California Coastal Comm’n, 483 U. S. 825, 831-832 (1987); Fresh Pond Shopping Center, Inc. v. Callahan, 464 U. S. 875, 877 (1983) (Rehnquist, J., dissenting).

On their face, the state and local laws at issue here merely regulate petitioners’ use of their land by regulating the relationship between landlord and tenant. “This Court has consistently affirmed that States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails.” Loretto, 458 U. S., at 440. See also Florida Power, supra, at 252 (“statutes regulating the economic relations of landlords and tenants are not per se takings”). When a landowner decides to rent his land to tenants, the government may place ceilings on the rents the landowner can charge, see, e. g., Pennell, supra, at 12, n. 6, or require the landowner to accept tenants he does not like, see, e. g., Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 261 (1964), without automatically having to pay compensation. See also PruneYard Shopping Center v. Robins, 447 U. S. 74, 82-84 (1980). Such forms of regulation are analyzed by engaging in the “essentially ad hoc, factual inquiries” necessary to determine whether a regulatory taking has occurred. Kaiser Aetna, supra, at 175. In the words of Justice Holmes, “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922).

Petitioners emphasize that the ordinance transfers wealth from park owners to incumbent mobile home owners. Other forms of land use regulation, however, can also be said to transfer wealth from the one who is regulated to another. Ordinary rent control often transfers wealth from landlords to tenants by reducing the landlords’ income and the tenants’ monthly payments, although it does not cause a one-time transfer of value as occurs with mobile homes. Traditional zoning regulations can transfer wealth from those whose activities are prohibited to their neighbors; when a property owner is barred from mining coal on his land, for example, the value of his property may decline but the value of his neighbor’s property may rise. The mobile home owner’s ability to sell the mobile home at a premium may make this wealth transfer more visible than in the ordinary case, see Epstein, Rent Control and the Theory of Efficient Regulation, 54 Brooklyn L. Rev. 741, 758-759 (1988), but the existence of the transfer in itself does not convert regulation into physical invasion.

Petitioners also rely heavily on their allegation that the ordinance benefits incumbent mobile home owners without benefiting future mobile home owners, who will be forced to purchase mobile homes at premiums. Mobile homes, like motor vehicles, ordinarily decline in value with age. But the effect of the rent control ordinance, coupled with the restrictions on the park owner’s freedom to reject new tenants, is to increase significantly the value of the mobile home. This increased value normally benefits only the tenant in possession at the time the rent control is imposed. See Hirsch & Hirsch, 35 UCLA L. Rev., at 430-431. Petitioners are correct in citing the existence of this premium as a difference between the alleged effect of the Escondido ordinance and that of an ordinary apartment rent control statute. Most apartment tenants do not sell anything to their successors (and are often prohibited from charging “key money”), so a typical rent control statute will transfer wealth from the landlord to the incumbent tenant and all future tenants. By contrast, petitioners contend that the Escondido ordinance transfers wealth only to the incumbent mobile home owner. This effect might have some bearing on whether the ordinance causes a regulatory taking, as it may shed some light on whether there is a sufficient nexus between the effect of the ordinance and the objectives it is supposed to advance. See Nollan v. California Coastal Comm’n, supra, at 834-835. But it has nothing to do with whether the ordinance causes a physical taking. Whether the ordinance benefits only current mobile home owners or all mobile home owners, it does not require petitioners to submit to the physical occupation of their land.

The same may be said of petitioners’ contention that the ordinance amounts to compelled physical occupation because it deprives petitioners of the ability to choose their incoming tenants. Again, this effect may be relevant to a regulatory taking argument, as it may be one factor a reviewing court would wish to consider in determining whether the ordinance unjustly imposes a burden on petitioners that should “be compensated by the government, rather than remain[ing] disproportionately concentrated on a few persons.” Penn Central Transportation Co. v. New York City, 438 U. S., at 124. But it does not convert regulation into the unwanted physical occupation of land. Because they voluntarily open their property to occupation by others, petitioners cannot assert a per se right to compensation based on their inability to exclude particular individuals. See Heart of Atlanta Motel, Inc. v. United States, 379 U. S., at 261; see also id., at 269 (“[AJppellant has no ‘right’ to select its guests as it sees fit, free from governmental regulation”); PruneYard Shopping Center v. Robins, 447 U. S., at 82-84.

Petitioners’ final line of argument rests on a footnote in Loretto, in which we rejected the contention that “the landlord could avoid the requirements of [the statute forcing her to permit cable to be permanently placed on her property] by ceasing to rent the building to tenants.” We found this possibility insufficient to defeat a physical taking claim, because “a landlord’s ability to rent his property may not be conditioned on his forfeiting the right to compensation for a physical occupation.” Loretto, 458 U. S., at 439, n. 17. Petitioners argue that if they have to leave the mobile home park business in order to avoid the strictures of the Escondido ordinance, their ability to rent their property has in fact been conditioned on such a forfeiture. This argument fails at its base, however, because there has simply been no compelled physical occupation giving rise to a right to compensation that petitioners could have forfeited. Had the city required such an occupation, of course, petitioners would have a right to compensation, and the city might then lack the power to condition petitioners’ ability to run mobile home parks on their waiver of this right. Cf. Nollan v. California Coastal Comm’n, 483 U. S., at 837. But because the ordinance does not effect a physical taking in the first place, this footnote in Loretto does not help petitioners.

With respect to physical takings, then, this case is not far removed from FCC v. Florida Power Corp., 480 U. S. 245 (1987), in which the respondent had voluntarily leased space on its utility poles to a cable television company for the installation of cables. The Federal Government, exercising its statutory authority to regulate pole attachment agreements, substantially reduced the annual rent. We rejected the respondent’s claim that “it is a taking under Loretto for a tenant invited to lease at a rent of $7.15 to remain at the regulated rent of $1.79.” Id., at 252. We explained that “it is the invitation, not the rent, that makes the difference. The line which separates [this case] from Loretto is the unambiguous distinction between a . .. lessee and an interloper with a government license.” Id., at 252-253. The distinction is equally unambiguous here. The Escondido rent control ordinance, even considered against the backdrop of California’s Mobilehome Residency Law, does not authorize an unwanted physical occupation of petitioners’ property. It is a regulation of petitioners’ use of their property, and thus does not amount to a per se taking.

Ill

In this Court, petitioners attempt to challenge the ordinance on two additional grounds: They argue that it constitutes a denial of substantive due process and a regulatory taking. Neither of these claims is properly before us. The first was not raised or addressed below, and the second is not fairly included in the question on which we granted certiorari.

A

The Yees did not include a due process claim in their complaint. Nor did petitioners raise a due process claim in the Court of Appeal. It was not until their petition for review in the California Supreme Court that petitioners finally raised a substantive due process claim. But the California Supreme Court denied discretionary review. Such a denial, as in this Court, expresses no view as to the merits. See People v. Triggs, 8 Cal. 3d 884, 890-891, 506 P. 2d 232, 236 (1973). In short, petitioners did not raise a substantive due process claim in the state courts, and no state court has addressed such a claim.

In reviewing the judgments of state courts under the jurisdictional grant of 28 U. S. C. § 1257, the Court has, with very rare exceptions, refused to consider petitioners’ claims that were not raised or addressed below. Illinois v. Gates, 462 U. S. 213, 218-220 (1983). While we have expressed inconsistent views as to whether this rule is jurisdictional or prudential in cases arising from state courts, see ibid., we need not resolve the question here. (In cases arising from federal courts, the rule is prudential only. See, e. g., Carlson v. Green, 446 U. S. 14, 17, n. 2 (1980).) Even if the rule were prudential, we would adhere to it in this case. Because petitioners did not raise their substantive due process claim below, and because the state courts did not address it, we will not consider it here.

B

As a preliminary matter, we must address respondent’s assertion that a regulatory taking claim is unripe because petitioners have not sought rent increases. While respondent is correct that a claim that the ordinance effects a regulatory taking as applied to petitioners’ property would be unripe for this reason, see Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172, 186-197 (1985), petitioners mount a facial challenge to the ordinance. They allege in this Court that the ordinance does not “‘substantially advance’” a “‘legitimate state interest’” no matter how it is applied. See Nollan v. California Coastal Comm’n, supra, at 834; Agins v. Tiburon, 447 U. S. 255, 260 (1980). As this allegation does not depend on the extent to which petitioners are deprived of the economic use of their particular pieces of property or the extent to which these particular petitioners are compensated, petitioners’ facial challenge is ripe. See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S., at 495; Agins, supra, at 260.

We must also reject respondent’s contention that the regulatory taking argument is not properly before us because it was not made below. It is unclear whether petitioners made this argument below: Portions of their complaint and briefing can be read either to argue a regulatory taking or to support their physical taking argument. For the same reason it is equally ambiguous whether the Court of Appeal addressed the issue. Yet petitioners’ regulatory taking argument stands in a posture different from their substantive due process claim.

Petitioners .unquestionably raised a taking claim in the state courts. The question whether the rent control ordinance took their property without compensation, in violation of the Fifth Amendment’s Takings Clause, is thus properly before us. Once a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below. Bankers Life & Casualty Co. v. Crenshaw, 486 U. S. 71, 78, n. 2 (1988); Gates, supra, at 219-220; Dewey v. Des Moines, 173 U. S. 193, 197-198 (1899). Petitioners’ arguments that the ordinance constitutes a taking in two different ways, by physical occupation and by regulation, are not separate claims. They are, rather, separate arguments in support of a single claim — that the ordinance effects an unconstitutional taking. Having raised a taking claim in the state courts, therefore, petitioners could have formulated any argument they liked in support of that claim here.

A litigant seeking review in this Court of a claim properly raised in the lower courts thus generally possesses the ability to frame the question to be decided in any way he chooses, without being limited to the manner in which the question was framed below. While we have on occasion rephrased the question presented by a petitioner, see, e. g., Ankenbrandt v. Richards, 502 U. S. 1023 (1992), or requested the parties to address an important question of law not raised in the petition for certiorari, see, e. g., Payne v. Tennessee, 498 U. S. 1080 (1991), by and large it is the petitioner himself who controls the scope of the question presented. The petitioner can generally frame the question as broadly or as narrowly as he sees fit.

The framing of the question presented has significant consequences, however, because under this Court’s Rule 14.1(a), “[o]nly the questions set forth in the petition, or fairly included therein, will be considered by the Court.” While “[t]he statement of any question presented will be deemed to comprise every subsidiary question fairly included therein,” ibid., we ordinarily do not consider questions outside those presented in the petition for certiorari. See, e. g., Berkemer v. McCarty, 468 U. S. 420, 443, n. 38 (1984). This rule is prudential in nature, but we disregard it “only in the most exceptional cases,” Stone v. Powell, 428 U. S. 465, 481, n. 15 (1976), where reasons of urgency or of economy suggest the need to address the unpresented question in the case under consideration.

Rule 14.1(a) serves two important and related purposes. First, it provides the respondent with notice of the grounds upon which the petitioner is seeking certiorari, and enables the respondent to sharpen the arguments as to why certio-rari should not be granted. Were we routinely to consider questions beyond those raised in the petition, the respondent would lack any opportunity in advance of litigation on the merits to argue that such questions are not worthy of review. Where, as is not unusual, the decision below involves issues on which the petitioner does not seek certiorari, the respondent would face the formidable task of opposing certiorari on every issue the Court might conceivably find present in the case. By forcing the petitioner to choose his questions at the outset, Rule 14.1(a) relieves the respondent of the expense of unnecessary litigation on the merits and the burden of opposing certiorari on unpresented questions.

Second, Rule 14.1(a) assists the Court in selecting the cases in which certiorari will be granted. Last Term alone we received over 5,000 petitions for certiorari, but we have the capacity to decide only a small fraction of these cases on the merits. To use our resources most efficiently, we must grant certiorari only in those cases that will enable us to resolve particularly important questions. Were we routinely to entertain questions not presented in the petition for certiorari, much of this efficiency would vanish, as parties who feared an inability to prevail on the question presented would be encouraged to fill their limited briefing space and argument time with discussion of issues other than the one on which certiorari was granted. Rule 14.1(a) forces the parties to focus on the questions the Court has viewed as particularly important, thus enabling us to make efficient use of our resources.

We granted certiorari on a single question pertaining to the Takings Clause: “Two federal courts of appeal have held that the transfer of a premium value to a departing mobile-home tenant, representing the value of the right to occupy at a reduced rate under local mobilehome rent control ordinances, constitute^] an impermissible taking. Was it error for the state appellate court to disregard the rulings and hold that there was no taking under the fifth and fourteenth amendments?” This was the question presented by petitioners. Pet. for Cert. i. It asks whether the court below erred in disagreeing with the holdings of the Courts of Appeals for the Third and Ninth Circuits in Pinewood Estates of Michigan v. Barnegat Township Leveling Board, 898 F. 2d 347 (CA3 1990), and Hall v. Santa Barbara, 833 F. 2d 1270 (CA9 1987), cert. denied, 485 U. S. 940 (1988). These cases, in turn, held that mobile home ordinances effected physical takings, not regulatory takings. Fairly construed, then, petitioners’ question presented is the equivalent of the question “Did the court below err in finding no physical taking?”

Whether or not the ordinance effects a regulatory taking is a question related to the one petitioners presented, and perhaps complementary to the one petitioners presented, but it is not “fairly included therein.” Consideration of whether a regulatory taking occurred would not assist in resolving whether a physical taking occurred as well; neither of the two questions is subsidiary to the other. Both might be subsidiary to a question embracing both — Was there a taking? — but they exist side by side, neither encompassing the other. Cf. American Nat. Bank & Trust Co. of Chicago v. Haroco, Inc., 473 U. S. 606, 608 (1985) (question whether complaint adequately alleges conduct of racketeering enterprise is not fairly included in question whether statute requires that plaintiff suffer damages through defendant’s conduct of such an enterprise).

Rule 14.1(a) accordingly creates a heavy presumption against our consideration of petitioners’ claim that the ordinance causes a regulatory taking. Petitioners have not overcome that presumption. While the regulatory taking question is no doubt important, from an institutional perspective it is not as important as the physical taking question. The lower courts have not reached conflicting results, so far as we know, on whether similar mobile home rent control ordinances effect regulatory takings. They have reached conflicting results over whether such ordinances cause physical takings; such a conflict is, of course, a substantial reason for granting certiorari under this Court’s Rule 10. Moreover, the conflict is between two courts whose jurisdiction includes California, the State with the largest population and one with a relatively high percentage of the Nation’s mobile homes. Forum shopping is thus of particular concern. See Azul Pacifico, Inc. v. Los Angeles, 948 F. 2d 575, 579 (CA9 1991) (mobile home park owners may file physical taking suits in either state or federal court). Prudence also dictates awaiting a case in which the issue was fully litigated below, so that we will have the benefit of developed arguments on both sides and lower court opinions squarely addressing the question. See Lytle v. Household Mfg., Inc., 494 U. S. 545, 552, n. 3 (1990) (“Applying our analysis ... to the facts of a particular case without the benefit of a full record or lower court determinations is not a sensible exercise of this Court’s discretion”). In fact, were we to address the issue here, we would apparently be the first court in the Nation to determine whether an ordinance like this one effects a regulatory taking. We will accordingly follow Rule 14.1(a), and consider only the question petitioners raised in seeking certiorari. We leave the regulatory taking issue for the California courts to address in the first instance.

I — I C

We made this observation in Loretto:

“Our holding today is very narrow. We affirm the traditional rule that a permanent physical occupation of property is a taking. In such a case, the property owner- entertains a historically rooted expectation of compensation, and the character of the invasion is qualitatively more intrusive than perhaps any other category of property regulation. We do not, however, question the equally substantial authority upholding a State’s broad power to impose appropriate restrictions upon an owner’s use of his property.” 458 U. S., at 441.

We respected this distinction again in Florida Power, where we held that no taking occurs under Loretto when a tenant invited to lease at one rent remains at a lower regulated rent. Florida Power, 480 U. S., at 252-253. We continue to observe the distinction today. Because the Escondido rent control ordinance does not compel a landowner to suffer the physical occupation of his property, it does not effect a per se taking under Loretto. The judgment of the Court of Appeal is accordingly

Affirmed.

Justice Blackmun,

concurring in the judgment.

I agree with the Court that the Escondido ordinance is not a taking under this Court’s analysis in Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982). I also conclude that the substantive due process and regulatory taking claims are not properly raised in this Court. For that reason, I, unlike the Court, do not decide whether the regulatory taking claim is or is not ripe, or which of petitioners’ arguments would or would not be relevant to such a claim.

Justice Souter,

concurring in the judgment.

I concur in the judgment and would join the Court’s opinion except for its references to the relevance and significance of petitioners’ allegations to a claim of regulatory taking.

      Strictly speaking, the Escondido rent control ordinance only limits rents. Petitioners’ inability to select their incoming tenants is a product of the State’s Mobilehome Residency Law, the constitutionality of which has never been at issue in this case. (The State, moreover, has never been a party.) But we understand petitioners to be making a more subtle argument — that before the adoption of the ordinance they were able to influence a mobile home owner’s selection of a purchaser by threatening to increase the rent for prospective purchasers they disfavored. To the extent the rent control ordinance deprives petitioners of this type of influence, petitioners’ argument is one we must consider.


source: Caselaw Access Project

author: Justice White Justice O’Connor,

license: Public Domain

text:
    JACOBSON v. UNITED STATES
    No. 90-1124.
    Argued November 6, 1991
    Decided April 6, 1992

      White, J., delivered the opinion of the Court, in which Blackmun, Stevens, Soutee, and Thomas, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Kennedy, J., joined, and in which Scalia, J., joined except as to Part II, post, p. 554.

      George H. Moyer, Jr., argued the cause and filed briefs for petitioner.

      Paul J. Larkin, Jr., argued the cause for the United States. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Vicki S. Marani.

        Bennett L. Gershman, Steven R. Shapiro, and John A. Powell filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.

        Gregory U Evans, Daniel B. Hales, George D. Webster, Jack E. Yelver-ton, Fred E. Inbau, Wayne W. Schmidt, Bernard J. Farber, and James P.

        Manak filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging affirmance.
      Briefs of amici curiae were filed for the National Center for Missing and Exploited Children et al. by H. Robert Showers and Judith Drazen Schretter; and for Congressman Thomas J. Bliley, Jr., et al. by James R Mueller, Michael J. Lockerby, and David E. Anderson.

   Justice White

delivered the opinion of the Court.

On September 24, 1987, petitioner Keith Jacobson was indicted for violating a provision of the Child Protection Act of 1984 (Act), Pub. L. 98-292, 98 Stat. 204, which criminalizes the knowing receipt through the mails of a “visual depiction [that] involves the use of a minor engaging in sexually explicit conduct. . . .” 18 U. S. C. § 2252(a)(2)(A). Petitioner defended on the ground that the Government entrapped him into committing the crime through a series of communications from undercover agents that spanned the 26 months preceding his arrest. Petitioner was found guilty after a jury trial. The Court of Appeals affirmed his conviction, holding that the Government had carried its burden of proving beyond reasonable doubt that petitioner was predisposed to break the law and hence was not entrapped.

Because the Government overstepped the line between setting a trap for the “unwary innocent” and the “unwary criminal,” Sherman v. United States, 356 U. S. 369, 372 (1958), and as a matter of law failed to establish that petitioner was independently predisposed to commit the crime for which he was arrested, we reverse the Court of Appeals’ judgment affirming his conviction.

I

In February 1984, petitioner, a 56-year-old veteran-turned-farmer who supported his elderly father in Nebraska, ordered two magazines and a brochure from a California adult bookstore. The magazines, entitled Bare Boys I and Bare Boys II, contained photographs of nude preteen and teenage boys. The contents of the magazines startled petitioner, who testified that he had expected to receive photographs of “young men 18 years or older.” Tr. 425. On cross-examination, he explained his response to the magazines:

“[PROSECUTOR]: [Y]ou were shocked and surprised that there were pictures of very young boys without clothes on, is that correct?
“[JACOBSON]: Yes, I was.
“[PROSECUTOR]: Were you offended?
“[JACOBSON]: I was not offended because I thought these were a nudist type publication. Many of the pictures were out in a rural or outdoor setting. There was — I didn’t draw any sexual connotation or connection with that.” Id., at 463.

The young men depicted in the magazines were not engaged in sexual activity, and petitioner’s receipt of the magazines was legal under both federal and Nebraska law. Within three months, the law with respect to child pornography changed; Congress passed the Act illegalizing the receipt through the mails of sexually explicit depictions of children. In the very month that the new provision became law, postal inspectors found petitioner’s name on the mailing list of the California bookstore that had mailed him Bare Boys I and II. There followed over the next 2V2 years repeated efforts by two Government agencies, through five fictitious organizations and a bogus pen pal, to explore petitioner’s willingness to break the new law by ordering sexually explicit photographs of children through the mail.

The Government began its efforts in January 1985 when a postal inspector sent petitioner a letter supposedly from the American Hedonist Society, which in fact was a fictitious organization. The letter included a membership application and stated the Society’s doctrine: that members had the “right to read what we desire, the right to discuss similar interests with those who share our philosophy, and finally that we have the right to seek pleasure without restrictions being placed on us by outdated puritan morality.” Record, Government Exhibit 7. Petitioner enrolled in the organization and returned a sexual attitude questionnaire that asked him to rank on a scale of one to four his enjoyment of various sexual materials, with one being “really enjoy,” two being “enjoy,” three being “somewhat enjoy,” and four being “do not enjoy.” Petitioner ranked the entry “[p]re-teen sex” as a two, but indicated that he was opposed to pedophilia. Ibid.

For a time, the Government left petitioner alone. But then a new “prohibited mailing specialist” in the Postal Service found petitioner’s name in a file, Tr. 328-331, and in May 1986, petitioner received a solicitation from a second fictitious consumer research company, “Midlands ■ Data Research,” seeking a response from those who “believe in the joys of sex and the complete awareness of those lusty and youthful lads and lasses of the neophite [sic] age.” Record, Government Exhibit 8. The letter never explained whether “neophite” referred to minors or young adults. Petitioner responded: “Please feel free to send me more information, I am interested in teenage sexuality. Please keep my name confidential.” Ibid.

Petitioner then heard from yet another Government creation, “Heartland Institute for a New Tomorrow” (HINT), which proclaimed that it was “an organization founded to protect and promote sexual freedom and freedom of choice. We believe that arbitrarily imposed legislative sanctions restricting your sexual freedom should be rescinded through the legislative process.” Id., Defendant’s Exhibit 102. The letter also enclosed a second survey. Petitioner indicated that his interest in “[pjreteen sex-homosexual” material was above average, but not high. In response to another question, petitioner wrote: “Not only sexual expression but freedom of the press is under attack. We must be ever vigilant to counter attack right wing fundamentalists who are determined to curtail our freedoms.” Id., Government Exhibit 9.

HINT replied, portraying itself as a lobbying organization seeking to repeal “all statutes which regulate sexual activities, except those laws which deal with violent behavior, such as rape. HINT is also lobbying to eliminate any legal definition of ‘the age of consent.’ ” Id., Defendant’s Exhibit 113. These lobbying efforts were to be funded by sales from a catalog to be published in the future “offering the sale of various items which we believe you will find to be both interesting and stimulating.” Ibid. HINT also provided computer matching of group members with similar survey responses; and, although petitioner was supplied with a list of potential “pen pals,” he did not initiate any correspondence.

Nevertheless, the Government’s “prohibited mailing specialist” began writing to petitioner, using the pseudonym “Carl Long.” The letters employed a tactic known as “mirroring,” which the inspector described as “reflect[ing] whatever the interests are of the person we are writing to.” Tr. 342. Petitioner responded at first, indicating that his interest was primarily in “male-male items.” Record, Government Exhibit 9A. Inspector “Long” wrote back:

“My interests too are primarily male-male items. Are you satisfied with the type of VCR tapes available? Personally, I like the amateur stuff better if its [sic] well produced as it can get more kinky and also seems more real. I think the actors enjoy it more.” Id., Government Exhibit 13.

Petitioner responded:

“As far as my likes are concerned, I like good looking young guys (in their late teens and early 20’s) doing their thing together.” Id., Government Exhibit 14.

Petitioner’s letters to “Long” made no reference to child pornography. After writing two letters, petitioner discontinued the correspondence.

By March 1987, 34 months had passed since the Government obtained petitioner’s name from the mailing list of the California bookstore, and 26 months had passed since the Postal Service had commenced its mailings to petitioner. Although petitioner had responded to surveys and letters, the Government had no evidence that petitioner had ever intentionally possessed or been exposed to child pornography. The Postal Service had not checked petitioner’s mail to determine whether he was receiving questionable mailings from persons — other than the Government — involved in the child pornography industry. Tr. 348.

At this point, a second Government agency, the Customs Service, included petitioner in its own child pornography sting, “Operation Borderline,” after receiving his name on lists submitted by the Postal Service. Id., at 71-72. Using the name of a fictitious Canadian company called “Produit Outaouais,” the Customs Service mailed petitioner a brochure advertising photographs of young boys engaging in sex. Record, Government Exhibit 22. Petitioner placed an order that was never filled. Id., Government Exhibit 24.

The Postal Service also continued its efforts in the Jacobson case, writing to petitioner as the “Far Eastern Trading Company Ltd.” The letter began:

“As many of you know, much hysterical nonsense has appeared in the American media concerning ‘pornography’ and what must be done to stop it from coming across your borders. This brief letter does not allow us to give much comments; however, why is your government spending millions of dollars to exercise international censorship while tons of drugs, which makes yours the world’s most crime ridden country are passed through easily.” Id., Government Exhibit 1.

The letter went on to say:

“[W]e have devised a method of getting these to you without prying eyes of U. S. Customs seizing your mail. . . . After consultations with American solicitors, we have been advised that once we have posted our material through your system, it cannot be opened for any inspection without authorization of a judge.” Ibid.

The letter invited petitioner to send for more information. It also asked petitioner to sign an affirmation that he was “not a law enforcement officer or agent of the U. S. Government acting in an undercover capacity for the purpose of entrapping Far Eastern Trading Company, its agents or customers.” Petitioner responded. Ibid. A catalog was sent, id., Government Exhibit 2, and petitioner ordered Boys Who Love Boys, id., Government Exhibit 3, a pornographic magazine depicting young boys engaged in various sexual activities. Petitioner was arrested after a controlled delivery of a photocopy of the magazine.

When petitioner was asked at trial why he placed such an order, he explained that the Government had succeeded in piquing his curiosity:

“Well, the statement was made of all the trouble and the hysteria over pornography and I wanted to see what the material was. It didn’t describe the — I didn’t know for sure what kind of sexual action they were referring to in the Canadian letter.” Tr. 427-428.

In petitioner’s home, the Government found the Bare Boys magazines and materials that the Government had sent to him in the course of its protracted investigation, but no other materials that would indicate that petitioner collected, or was actively interested in, child pornography.

Petitioner was indicted for violating 18 U. S. C. § 2252(a) (2)(A). The trial court instructed the jury on the petitioner’s entrapment defense, petitioner was convicted, and a divided Court of Appeals for the Eighth Circuit, sitting en banc, affirmed, concluding that “Jacobson was not entrapped as a matter of law.” 916 F. 2d 467, 470 (1990). We granted certiorari. 499 U. S. 974 (1991).

II

There can be no dispute about the evils of child pornography or the difficulties that laws and law enforcement have encountered in eliminating it. See generally Osborne v. Ohio, 495 U. S. 103, 110 (1990); New York v. Ferber, 458 U. S. 747, 759-760 (1982). Likewise, there can be no dispute that the Government may use undercover agents to enforce the law. “It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises.” Sorrells v. United States, 287 U. S. 435, 441 (1932); Sherman, 356 U. S., at 372; United States v. Russell, 411 U. S. 423, 435-436 (1973).

In their zeal to enforce the law, however, Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. Sorrells, supra, at 442; Sherman, supra, at 372. Where the Government has induced an individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents. United States v. Whole, 288 U. S. App. D. C. 261, 263-264, 925 F. 2d 1481, 1483-1484 (1991).

Thus, an agent deployed to stop the traffic in illegal drugs may offer the opportunity to buy or sell drugs and, if the offer is accepted, make an arrest on the spot or later. In such a typical case, or in a more elaborate “sting” operation involving government-sponsored fencing where the defendant is simply provided with the opportunity to commit a crime, the entrapment defense is of little use because the ready commission of the criminal act amply demonstrates the defendant’s predisposition. See United States v. Sherman, 200 F. 2d 880, 882 (CA2 1952). Had the agents in this case simply offered petitioner the opportunity to order child pornography through the mails, and petitioner — who must be presumed to know the law — had promptly availed himself of this criminal opportunity, it is unlikely that his entrapment defense would have warranted a jury instruction. Mathews v. United States, 485 U. S. 58, 66 (1988).

But that is not what happened here. By the time petitioner finally placed his order, he had already been the target of 26 months of repeated mailings and communications from Government agents and fictitious organizations. Therefore, although he had become predisposed to break the law by May 1987, it is our view that the Government did not prove that this predisposition was independent and not the product of the attention that the Government had directed at petitioner since January 1985. Sorrells, supra, at 442; Sherman, 356 U. S., at 372.

The prosecution’s evidence of predisposition falls into two categories: evidence developed prior to the Postal Service’s mail campaign, and that developed during the course of the investigation. The sole piece of preinvestigation evidence is petitioner’s 1984 order and receipt of the Bare Boys magazines. But this is scant if any proof of petitioner’s predisposition to commit an illegal act, the criminal character of which a defendant is presumed to know. It may indicate a predisposition to view sexually oriented photographs that are responsive to his sexual tastes; but evidence that merely indicates a generic inclination to act within a broad range, not all of which is criminal, is of little probative value in establishing predisposition.

Furthermore, petitioner was acting within the law at the time he received these magazines. Receipt through the mails of sexually explicit depictions of children for noncommercial use did not become illegal under federal law until May 1984, and Nebraska had no law that forbade petitioner’s possession of such material until 1988. Neb. Rev. Stat. § 28-813.01 (1989). Evidence of predisposition to do what once was lawful is not, by itself, sufficient to show predisposition to do what is now illegal, for there is a common understanding that most people obey the law even when they disapprove of it. This obedience may reflect a generalized respect for legality or the fear of prosecution, but for whatever reason, the law’s prohibitions are matters of consequence. Hence, the fact that petitioner legally ordered and received the Bare Boys magazines does little to further the Government’s burden of proving that petitioner was predisposed to commit a criminal act. This is particularly true given petitioner’s unchallenged testimony that he did not know until they arrived that the magazines would depict minors.

The prosecution’s evidence gathered during the investigation also fails to carry the ■ Government’s burden. Petitioner’s responses to the many communications prior to the ultimate criminal act were at most indicative of certain personal inclinations, including a predisposition to view photographs of preteen sex and a willingness to promote a given agenda by supporting lobbying organizations. Even so, petitioner’s responses hardly support an inference that he would commit the crime of receiving child pornography through the mails. Furthermore, a person’s inclinations and “fantasies . . . are his own and beyond the reach of government. . . Paris Adult Theatre I v. Slaton, 413 U. S. 49, 67 (1973); Stanley v. Georgia, 394 U. S. 557, 565-566 (1969).

On the other hand, the strong arguable inference is that, by waving the banner of individual rights and disparaging the legitimacy and constitutionality of efforts to restrict the availability of sexually explicit materials, the Government not only excited petitioner’s interest in sexually explicit materials banned by law but also exerted substantial pressure on petitioner to obtain and read such material as part of a fight against censorship and the infringement of individual rights. For instance, HINT described itself as “an organization founded to protect and promote sexual freedom and freedom of choice” and stated that “the most appropriate means to accomplish [its] objectives is to promote honest dialogue among concerned individuals and to continue its lobbying efforts with State Legislators.” Record, Defendant’s Exhibit 113. These lobbying efforts were to be financed through catalog sales. Ibid. Mailings from the equally fictitious American Hedonist Society, id., Government Exhibit 7, and the correspondence from the nonexistent Carl Long, id., Defendant’s Exhibit 5, endorsed these themes.

Similarly, the two solicitations in the spring of 1987 raised the spectre of censorship while suggesting that petitioner ought to be allowed to do what he had been solicited to do. The mailing from the Customs Service referred to “the worldwide ban and intense enforcement on this type of material,” observed that “what was legal and commonplace is now an ‘underground’ and secretive service,” and emphasized that “[t]his environment forces us to take extreme measures” to ensure delivery. Id., Government Exhibit 22. The Postal Service solicitation described the concern about child pornography as “hysterical nonsense,” decried “international censorship,” and assured petitioner, based on consultation with “American solicitors,” that an order that had been posted could not be opened for inspection without authorization of a judge. Id., Government Exhibit 1. It further asked petitioner to affirm that he was not a Government agent attempting to entrap the mail order company or its customers. Ibid. In these particulars, both Government solicitations suggested that receiving this material was something that petitioner ought to be allowed to do.

Petitioner’s ready response to these solicitations cannot be enough to establish beyond reasonable doubt that he was predisposed, prior to the Government acts intended to create predisposition, to commit the crime of receiving child pornography through the mails. See Sherman, 356 U. S., at 374. The evidence that petitioner was ready and willing to commit the offense came only after the Government had devoted 2V2 years to convincing him that he had or should have the right to engage in the very behavior proscribed by law. Rational jurors could not say beyond a reasonable doubt that petitioner possessed the requisite predisposition prior to the Government’s investigation and that it existed independent of the Government’s many and varied approaches to petitioner. As was explained in Sherman, where entrapment was found as a matter of law, “the Government [may not] pla[y] on the weaknesses of an innocent party and beguil[e] him into committing crimes which he otherwise would not have attempted.” Id., at 376.

Law enforcement officials go too far when they “implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” Sorrells, 287 U. S., at 442 (emphasis added). Like the Sorrells Court, we are “unable to conclude that it was the intention of the Congress in enacting this statute that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them.” Id., at 448. When the Government’s quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene.

Because we conclude that this is such a case and that the prosecution failed, as a matter of law, to adduce evidence to support the jury verdict that petitioner was predisposed, independent of the Government’s acts and beyond a reasonable doubt, to violate the law by receiving child pornography through the mails, we reverse the Court of Appeals’ judgment affirming the conviction of Keith Jacobson.

It is so ordered.

Justice O’Connor,

with whom The Chief Justice and Justice Kennedy join, and with whom Justice Scalia joins except as to Part II, dissenting.

Keith Jacobson was offered only two opportunities to buy child pornography through the mail. Both times, he ordered. Both times, he asked for opportunities to buy more. He needed no Government agent to coax, threaten, or persuade him; no one played on his sympathies, friendship, or suggested that his committing the crime would further a greater good. In fact, no Government agent even contacted him face to face. The Government contends that from the enthusiasm with which Mr. Jacobson responded to the chance to commit a crime, a reasonable jury could permissibly infer beyond a reasonable doubt that he was predisposed to commit the crime. I agree. Cf. United States v. Hunt, 749 F. 2d 1078, 1085 (CA4 1984) (ready response to solicitation shows predisposition), cert. denied, 472 U. S. 1018 (1985); United States v. Kaminski, 703 F. 2d 1004, 1008 (CA7 1983) (“ ‘the most important factor ... is whether the defendant evidenced reluctance to engage in criminal activity which was overcome by repeated Government inducement’ ”) (quoting United States v. Reynoso-Ulloa, 548 F. 2d 1329, 1336 (CA9 1977), cert. denied, 436 U. S. 926 (1978)); United States v. Sherman, 200 F. 2d 880, 882 (CA2 1952) (indication of predisposition is a defendant’s willingness to commit the offense “ ‘as evinced by ready complaisance’ ” (citation omitted)).

The first time the Government sent Mr. Jacobson a catalog of illegal materials, he ordered a set of photographs advertised as picturing “young boys in sex action fun.” He enclosed the following note with his order: “I received your brochure and decided to place an order. If I like your product, I will order more later.” Record, Government Exhibit 24. For reasons undisclosed in the record, Mr. Jacobson’s order was never delivered.

The second time the Government sent a catalog of illegal materials, Mr. Jacobson ordered a magazine called “Boys Who Love Boys,” described as: “11 year old and 14 year old boys get it on in every way possible. Oral, anal sex and heavy masturbation. If you love boys, you will be delighted with this.” Id., Government Exhibit 2. Along with his order, Mr. Jacobson sent the following note: “Will order other items later. I want to be discreet in order to protect you and me.” Id., Government Exhibit 3.

Government agents admittedly did not offer Mr. Jacobson the chance to buy child pornography right away. Instead, they first sent questionnaires in order to make sure that he was generally interested in the subject matter. Indeed, a “cold call” in such a business would not only risk rebuff and suspicion, but might also shock and offend the uninitiated, or expose minors to suggestive materials. Cf. FCC v. Pacifica Foundation, 438 U. S. 726, 748 (1978) (right to be free from offensive material in one’s home); 39 U. S. C. § 3010 (regulating the mailing of sexually explicit advertising materials). Mr. Jacobson’s responses to the questionnaires gave the investigators reason to think he would be interested in photographs depicting preteen sex.

The Court, however, concludes that a reasonable jury could not have found Mr. Jacobson to be predisposed beyond a reasonable doubt on the basis of his responses to the Government’s catalogs, even though it admits that, by that time, he was predisposed to commit the crime. The Government, the Court holds, failed to provide evidence that Mr. Jacobson’s obvious predisposition at the time of the crime “was independent and not the product of the attention that the Government had directed at petitioner.” Ante, at 550. In so holding, I believe the Court fails to acknowledge the reasonableness of the jury’s inference from the evidence, redefines “predisposition,” and introduces a new requirement that Government sting operations have a reasonable suspicion of illegal activity before contacting a suspect.

I

ThisThis Court has held previously that a defendant s predisposition is to be assessed as of the time the Government agent first suggested the crime, not when the Government agent first became involved. Sherman v. United States, 356 U. S. 369, 372-376 (1958). See also United States v. Williams, 705 F. 2d 603, 618, n. 9 (CA2), cert. denied, 464 U. S. 1007 (1983). Until the Government actually makes a suggestion of criminal conduct, it could not be said to have “implanted] in the mind of an innocent person the disposition to commit the alleged offense and induce its commission . . . .” Sorrells v. United States, 287 U. S. 435, 442 (1932). Even in Sherman v. United States, supra, in which the Court held that the defendant had been entrapped as a matter of law, the Government agent had repeatedly and unsuccessfully coaxed the defendant to buy drugs, ultimately succeeding only by playing on the defendant’s sympathy. The Court found lack of predisposition based on the Government’s numerous unsuccessful attempts to induce the crime, not on the basis of preliminary contacts with the defendant. .

Today, the Court holds that Government conduct may be considered to create a predisposition to commit a crime, even before any Government action to induce the commission of the crime. In my view, this holding changes entrapment doctrine. Generally, the inquiry is whether a suspect is predisposed before the Government induces the commission of the crime, not before the Government makes initial contact with him. There is no dispute here that the Government’s questionnaires and letters were not sufficient to establish inducement; they did not even suggest that Mr. Jacobson should engage in any illegal activity. If all the Government had done was to send these materials, Mr. Jacobson’s entrapment defense would fail. Yet the Court holds that the Government must prove not only that a suspect was predisposed to commit the crime before the opportunity to commit it arose, but also before the Government came on the scene. Ante, at 548-549.

The rule that preliminary Government contact can create a predisposition has the potential to be misread by lower courts as well as criminal investigators as requiring that the Government must have sufficient evidence of a defendant’s predisposition before it ever seeks to contact him. Surely the Court cannot intend to impose such a requirement, for it would mean that the Government must have a reasonable suspicion of criminal activity before it begins an investigation, a condition that we have never before imposed. The Court denies that its new rule will affect run-of-the-mill sting operations, ante, at 549-550, and one hopes that it means what it says. Nonetheless, after this case, every defendant will claim that something the Government agent did before soliciting the crime “created” a predisposition that was not there before. For example, a bribetaker will claim that the description of the amount of money available was so enticing that it implanted a disposition to accept the bribe later offered. A drug buyer will claim that the description of the drug’s purity and effects was so tempting that it created the urge to try it for the first time. In short, the Court’s opinion could be read to prohibit the Government from advertising the seductions of criminal activity as part of its sting operation, for fear of creating a predisposition in its suspects. That limitation would be especially likely to hamper sting operations such as this one, which mimic the advertising done by genuine purveyors of pornography. No doubt the Court would protest that its opinion does not stand for so broad a proposition, but the apparent lack of a principled basis for distinguishing these scenarios exposes a flaw in the more limited rule the Court today adopts.

The Court’s rule is all the more troubling because it does not distinguish between Government conduct that merely highlights the temptation of the crime itself, and Government conduct that threatens, coerces, or leads a suspect to commit a crime in order to fulfill some other obligation. For example, in Sorrells, the Government agent repeatedly asked for illegal liquor, coaxing the defendant to accede on the ground that “ ‘one former war buddy would get liquor for another.’ ” 287 U. S., at 440. In Sherman, the Government agent played on the defendant’s sympathies, pretending to be going through drug withdrawal and begging the defendant to relieve his distress by helping him buy drugs. 356 U. S., at 371.

The Government conduct in this case is not comparable. While the Court states that the Government “exerted substantial pressure on petitioner to obtain and read such material as part of a fight against censorship and the infringement of individual rights,” ante, at 552, one looks at the record in vain for evidence of such “substantial pressure.” The most one finds is letters advocating legislative action to liberalize obscenity laws, letters which could easily be ignored or thrown away. Much later, the Government sent separate mailings of catalogs of illegal materials. Nowhere did the Government suggest that the proceeds of the sale of the illegal materials would be used to support legislative reforms. While one of the HINT letters suggested that lobbying efforts would be funded by sales from a catalog, Record, Defendant’s Exhibit 113, the catalogs actually sent, nearly a year later, were from different fictitious entities (Produit Outaouais and Far Eastern Trading Company), and gave no suggestion that money would be used for any political purposes. Id., Government Exhibit 22, Government Exhibit 2. Nor did the Government claim to be organizing a civil disobedience movement, which would protest the pornography laws by breaking them. Contrary to the gloss given the evidence by the Court, the Government’s suggestions of illegality may also have made buyers beware, and increased the mystique of the materials offered: “For those of you who have enjoyed youthful material ... we have devised a method of getting these to you without prying eyes of U. S. Customs seizing your mail.” Id., Government Exhibit 1. Mr. Jacobson’s curiosity to see what “ ‘all the trouble and the hysteria’ ” was about, ante, at 547, is certainly susceptible of more than one interpretation. And it is the jury that is charged with the obligation of interpreting it. In sum, the Court fails to construe the evidence in the light most favorable to the Government, and fails to draw all reasonable inferences in the Government’s favor. It was surely reasonable for the jury to infer that Mr. Jacobson was predisposed beyond a reasonable doubt, even if other inferences from the evidence were also possible.

II

The second puzzling thing about the Court s opinion is its redefinition of predisposition. The Court acknowledges that “petitioner’s responses to the many communications prior to the ultimate criminal act were . . . indicative of certain personal inclinations, including a predisposition to view photographs of preteen sex . . . Ante, at 551. If true, this should have settled the matter; Mr. Jacobson was predisposed to engage in the illegal conduct. Yet, the Court concludes, “petitioner’s responses hardly support an inference that he would commit the crime of receiving child pornography through the mails.” Ibid.

The Court seems to add something new to the burden of proving predisposition. Not only must the Government show that a defendant was predisposed to engage in the illegal conduct, here, receiving photographs of minors engaged in sex, but also that the defendant was predisposed to break the law knowingly in order to do so. The statute violated here, however, does not require proof of specific intent to break the law; it requires only knowing receipt of visual depictions produced by using minors engaged in sexually explicit conduct. See 18 U. S. C. § 2252(a)(2); United States v. Moncini, 882 F. 2d 401, 404-406 (CA9 1989). Under the Court’s analysis, however, the Government must prove more to show predisposition than it need prove in order to convict.

The Court ignores the judgment of Congress that specific intent is not an element of the crime of receiving sexually explicit photographs of minors. The elements of predisposition should track the elements of the crime. The predisposition requirement is meant to eliminate the entrapment defense for those defendants who would have committed the crime anyway, even absent Government inducement. Because a defendant might very well be convicted of the crime here absent Government inducement even though he did not know his conduct was illegal, a specific intent requirement does little to distinguish between those who would commit the crime without the inducement and those who would not. In sum, although the fact that Mr. Jacobson’s purchases of Bare Boys I and Bare Boys II were legal at the time may have some relevance to the question of predisposition, it is not, as the Court suggests, dispositive.

The crux of the Court’s concern in this case is that the Government went too far and “abused” the “‘processes of detection and enforcement’ ” by luring an innocent person to violate the law. Ante, at 553, quoting Sorrells, 287 U. S., at 448. Consequently, the Court holds that the Government failed to prove beyond a reasonable doubt that Mr. Jacobson was predisposed to commit the crime. It was, however, the jury’s task, as the conscience of the community, to decide whether Mr. Jacobson was a willing participant in the criminal activity here or an innocent dupe. The jury is the traditional “defense against arbitrary law enforcement.” Duncan v. Louisiana, 391 U. S. 145, 156 (1968). Indeed, in Sorrells, in which the Court was also concerned about overzealous law enforcement, the Court did not decide itself that the Government conduct constituted entrapment, but left the issue to the jury. 287 U. S., at 452. There is no dispute that the jury in this case was fully and accurately instructed on the law of entrapment, and nonetheless found Mr. Jacobson guilty. Because I believe there was sufficient evidence to uphold the jury’s verdict, I respectfully dissent.

       The jury was instructed:
      “As mentioned, one of the issues in this case is whether the defendant was entrapped. If the defendant was entrapped he must be found not guilty. The government has the burden of proving beyond a reasonable doubt that the defendant was not entrapped.
      “If the defendant before contact with law-enforcement officers or their agents did not have any intent or disposition to commit the crime charged and was induced or persuaded by law-enforcement officers o[r] their agents to commit that crime, then he was entrapped. On the other hand, if the defendant before contact with law-enforcement officers or their agents did have an intent or disposition to commit the crime; charged, then he was not entrapped even though law-enforcement officers or their agents provided a favorable opportunity to commit the crime or made committing the crime easier or even participated in acts essential to the crime.” App. 11-12.

       Inducement is not at issue in this case. The Government does not dispute that it induced petitioner to commit the crime. The sole issue is whether the Government carried its burden of proving that petitioner was predisposed to violate the law before the Government intervened. The dissent is mistaken in claiming that this is an innovation in entrapment law and in suggesting that the Government’s conduct prior to the moment of solicitation is irrelevant. See post, at 556-557. The Court rejected these arguments six decades ago in Sorrells v. United States, 287 U. S. 435 (1932), when the Court wrote that the Government may not punish an individual “for an alleged offense which is the product of the creative activity of its own officials” and that in such a case the Government “is in no position to object to evidence of the activities of its representatives in relation to the accused . . . .” Id., at 451. Indeed, the proposition that the accused must be predisposed prior to contact with law enforcement officers is so firmly established that the Government conceded the point at oral argument, submitting that the evidence it developed during the course of its investigation was probative because it indicated petitioner’s state of mind prior to the commencement of the Government’s investigation. See Tr. of Oral Arg. 41, 49.
      This long-established standard in no way encroaches upon Government investigatory activities. Indeed, the Government’s internal guidelines for undercover operations provide that an inducement to commit a crime should not be offered unless:
      “(a) [Tjhere is a reasonable indication, based on information developed through informants or other means, that the subject is engaging, has engaged, or is likely to engage in illegal activity of a similar type; or

      “(b) The opportunity for illegal activity has been structured so that there is reason for believing that-persons drawn to the opportunity, or brought to it, are predisposed to engage in the contemplated illegal activity.” Attorney General’s Guidelines on FBI Undercover Operations (Dec. 31,1980), reprinted in S. Rep. No. 97-682, p. 551 (1982).-

       We do not hold, as the dissent suggests, see post, at 559-560, that the Government was required to prove that petitioner knowingly violated the law. We simply conclude that proof that petitioner engaged in legal conduct and possessed certain generalized personal inclinations is not sufficient evidence to prove beyond a reasonable doubt that he would have been predisposed to commit the crime charged independent of the Government’s coaxing.


author: Per Curiam.

text:
    TREVINO v. TEXAS
    No. 91-6751.
    Decided April 6, 1992
   Per Curiam.

I

The State of Texas charged petitioner Joe Mario Trevino for the murder and rape of Blanche Miller, a capital offense. On February 1, 1984, before jury selection, petitioner filed a “Motion to Prohibit the State from Using Peremptory Chai-lenges to Strike Members of a Cognizable Group.” The motion recited:'

“The Accused requests of the Court that the State of Texas be prohibited from its use of peremptory challenges to strike prospective jurors merely based on the fact of race. The prosecution, the State of Texas, historically and habitually uses its peremptory challenges to strike black people and other minorities who are otherwise qualified. These peremptory challenges are exercised by the State of Texas to strike prospective black jurors in its effort to produce an ethnically pure, all white, jury. This common use of the State’s peremptory challenge in a criminal trial deprives the Accused of due process and a fair trial. This practice deprives the Accused of a jury representing a fair cross-section of the community in violation of the Sixth Amendment to the United States Constitution.
“A hearing is requested on this Motion.” 1A Record 280.

The trial court delayed ruling on the motion until the voir dire. During the course of voir dire, the prosecution exercised its peremptory challenges to excuse the only three black members of the venire. After each of these peremptory strikes, petitioner, who is Hispanic, renewed his motion, asking that the prosecution state its reasons for striking the jurors. The first time petitioner renewed the motion, the court stated: “I know of no requirement yet for either party to announce his reasons for exercising a preemptory [sic] challenge. Can you cite me some law on that?” 11 Record 356. In response, petitioner’s counsel cited McCray v. Abrams, 576 P. Supp. 1244 (EDNY), aff’d in part and rev’d in part, 750 F. 2d 1113 (CA2 1984). He went on to note that when we denied the petition for a writ of certiorari in McCray v. New York, 461 U. S. 961 (1983), five Justices expressed the view that Swain v. Alabama, 380 U. S. 202 (1965), ought to be reexamined. 11 Record 356. The trial court denied petitioner’s motion, and denied it again after two more black venire members were excluded.

The all-white jury returned a verdict of guilty and after a sentencing hearing returned affirmative answers to the two special questions posed by the court. See Jurek v. Texas, 428 U. S. 262, 267-269 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). As required under such circumstances, see ibid., the trial court sentenced petitioner to death. Petitioner appealed to the Court of Criminal Appeals of Texas, filing his brief on December 19, 1985. This is the cause now before us. He cited 24 errors in the guilt and punishment phases of the trial court proceedings. The only one of concern now is the prosecutor’s use of peremptory challenges based on race.

Petitioner contended in the Court of Criminal Appeals that the prosecution’s race based use of challenges violated his “rights to due process of law and to an impartial jury fairly drawn from a representative cross section of the community.” Brief for Appellant in No. 69337, p. 11. He found these rights in “the Sixth and Fourteenth Amendments to the United States Constitution,” as well as provisions of the Texas Constitution. Ibid. He asserted he was renewing the objections pressed at trial. Ibid. He acknowledged that under Swain v. Alabama, the use of peremptory challenges to discriminate in a single case would not be an equal protection violation but noted that in Batson v. Kentucky, cert. granted, 471 U. S. 1052 (1985), we would reconsider the question under the Sixth Amendment. When his brief was filed, we had heard oral argument in Batson but had not announced our decision. Petitioner urged that even if Bat-son did not alter the requirement of alleging an overall scheme of discrimination, the Court of Criminal Appeals should prohibit peremptory challenges based on race as a matter of state law.

On April 30, 1986, not long after petitioner filed his brief in the Court of Criminal Appeals, our decision in Batson came down. Batson v. Kentucky, 476 U. S. 79. The case announced the now familiar rule that when a defendant makes a prima facie showing that the State has exercised its peremptory challenges to exclude members of the defendant’s racial group, the State bears the burden of coming forward with a race neutral justification. Just over a month after Batson was decided, the State filed its brief in the Court of Criminal Appeals. The State argued Batson could not avail petitioner because he is not a member of the same race as the excluded jurors. According to the State, petitioner’s claim could not be considered an equal protection claim but was instead a claim that he was entitled to a jury composed of a “fair cross-section” of the community. Brief for Appellee in No. 69337, pp. 15-17. In drawing this distinction, the State relied on the view that a criminal defendant does not state an equal protection claim unless he alleges that the excluded jurors are members of the same protected class as he. We rejected this view last Term in Powers v. Ohio, 499 U. S. 400 (1991).

The Court of Criminal Appeals of Texas, sitting en banc, affirmed petitioner’s conviction and sentence on June 12, 1991, and denied petitioner’s application for rehearing on September 18, 1991. The opinion of the Court of Criminal Appeals does not set forth the reason for the delay of over five years between the submission of briefs and the resolution of the appeal. With respect to the peremptory challenge question, the court stated that the argument was foreclosed by Holland v. Illinois, 493 U. S. 474 (1990), in which we held that the Sixth Amendment does not prohibit the prosecution from exercising its peremptory challenges to exclude potential jurors based on race. 815 S. W. 2d 592, 598. In a footnote, the Court of Criminal Appeals stated that the arguments in petitioner’s brief did not amount to reliance on the Equal Protection Clause. Id., at 598, n. 3. The court’s opinion cited neither Powers nor Ford v. Georgia, 498 U. S. 411, which we decided on February 19, 1991. We now grant certiorari.

II

In Ford v. Georgia, we addressed what steps a defendant in a criminal case was required to take to preserve an equal protection objection to the State’s race based use of peremptory challenges during the pre-Batson era. Here we consider whether petitioner took those steps.

In Ford, the petitioner filed a pretrial “Motion to Restrict Racial Use of Peremptory Challenges,” 498 U. S., at 413, wording which is in all material respects parallel to the present petitioner’s pretrial “Motion to Prohibit the State from Using Peremptory Challenges to Strike Members of a Cognizable Group.” The ultimate issue in Ford concerned the validity of a state procedural rule, but before reaching it we ruled on a preliminary issue, and that ruling is dispositive here. We stated:

“The threshold issues are whether and, if so, when petitioner presented the trial court with a cognizable Batson claim that the State’s exercise of its peremptory challenges rested on the impermissible ground of race in violation of the Equal Protection Clause of the Fourteenth Amendment. We think petitioner must be treated as having raised such a claim, although he certainly failed to do it with the clarity that appropriate citations would have promoted. The pretrial motion made no mention of the Equal Protection Clause, and the later motion for a new trial cited the Sixth Amendment, not the Fourteenth.” Id., at 418.

Despite the inartfulness of the Ford petitioner’s assertion of his rights, we held he had presented his claim to the trial court. We noted that his reference in his motion to exclusion of black jurors “ ‘over a long period of time,’ ” and his argument to the same effect “could reasonably have been intended and interpreted to raise a claim under the Equal Protection Clause on the evidentiary theory articulated in Batson’s antecedent, Swain v. Alabama.” Id., at 419. We placed this interpretation on the reference to history because the standard of proof for an equal protection violation under Swain required a showing of racial exclusion in “case after case.” 380 U. S., at 223.

In the matter now before us petitioner also relied on a claim of a historical pattern of discriminatory use of peremptory challenges. That alone would have been sufficient under Ford to place the equal protection claim before the trial court. Of course, petitioner did more. He made an express reference to Swain in his argument to the trial court. 11 Record 356. In fact, petitioner argued that we would modify Swain’s burden of proof and that the Texas courts should anticipate our decision. We decide that petitioner presented his equal protection claim to the trial court.

We determine further that petitioner preserved his equal protection claim before the Court of Criminal Appeals. His argument caption made an express reference to the Fourteenth Amendment, and the issue presented for review was the very one that he had raised before the trial court.

The State in its brief to the Court of Criminal Appeals recognized that petitioner’s argument contained an equal protection claim, albeit one which the State believed to lack merit. The State did not argue that petitioner was not making an equal protection claim but that petitioner’s equal protection claim had no legal support. Given our later holding in Powers v. Ohio, supra, the State’s contention is incorrect.

We cannot ignore the fact that were we to hold petitioner had forfeited his equal protection claim by failing to state it with sufficient precision, we would be applying a stricter standard than applied in Batson itself. There petitioner had conceded in the state courts that Swain foreclosed a direct equal protection claim, and he based his argument on the Sixth Amendment and a provision of the Kentucky Constitution. Batson v. Kentucky, 476 U. S., at 83. Yet we treated his allegation of a violation of the Fourteenth Amendment as sufficient to present the question. Id., at 84-85, n. 4. Because petitioner’s case is here on direct review, he is entitled to the rule we announced in Batson. Compare Griffith v. Kentucky, 479 U. S. 314 (1987) (giving retroactive application to Batson for cases pending on direct review or not yet final when Batson was decided), with Teague v. Lane, 489 U. S. 288, 296 (1989) (denying similar application for cases on collateral review).

The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted, the judgment of the Court of Criminal Appeals of Texas is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.