NCJ Number
45965
Journal
LEGAL POINTS Issue: 81 Dated: (1977)
Date Published
1977
Length
4 pages
Annotation
PROSCRIPTIONS AGAINST LOITERING AND THEIR CONSTITUTIONAL VALIDITY ARE EXAMINED. THE DRAFTING OF IMPROVED LEGISLATION IS DISCUSSED.
Abstract
PROHIBITIONS AGAINST LOITERING HAVE THEIR ROOTS IN THE MEDIEVAL STATUTES OF LABOURERS WHICH WERE DESIGNED TO CONTROL BEGGARS, ROVING GANGS, AND OTHER IDLERS. MANY VAGRANCY STATUTES IN THE UNITED STATES PRIOR TO 1962 FOLLOWED THE PATTERN OF THESE OLDER LAWS. ALTHOUGH THE SUPREME COURT RULED THAT AN INDIVIDUAL'S CONDITION CANNOT BE THE BASIS OF CRIMINAL LIABILITY, ACTIONS CAN, AND MANY LAWS THEREFORE STILL RETAIN PROHIBITIONS OF LOITERING, DAWDLING, OR ACTING IN AN IDLE MANNER. ANTILOITERING ORDINANCES HAVE, HOWEVER, COME UNDER INCREASING CHALLENGE IN THE COURTS FOR VAGUENESS, UNCONSTITUTIONALITY, OR EXCEEDING THE AUTHORITY OF THE JURISDICTION OR POLICE. COURT DECISIONS HAVE VARIED GREATLY REGARDING WHAT IS OR IS NOT VAGUE. WHILE SOME COURTS HAVE UPHELD QUESTIONABLE ORDINANCES LARGELY ON THE GROUNDS THAT THE DEFINITE AND UNIFORM CODE FOR ENFORCEMENT WOULD BE TOO DIFFICULT TO DRAW UP, A FEDERAL COURT IN THE DISTRICT OF COLUMBIA FOUND THE WORD LOITERING TO BE ITSELF TOO VAGUE. THE ISSUE OF OVERBREADTH IS RELATED TO VAGUENESS: ESSENTIALLY A STATE IS OVERBROAD IF IT MAKES NO DISTINCTION BETWEEN CONDUCT CALCULATED TO HARM AND THAT WHICH IS BASICALLY INNOCENT. THE MORE SPECIFIC A LOITERING STATUTE IS BOTH IN ITS DEFINITION OF LOITERING AND IN THE UNLAWFUL OR HARMFUL INTENT WHICH MAY BE IMPLIED FROM IT, THE MORE LIKELY IT IS TO WITHSTAND COURT ATTACK. EXAMPLES OF VAGUE, OVERBROAD, AND VALID LOITERING ORDINANCES ARE GIVEN. EVEN THE MOST NARROWLY DRAFTED LOITERING ORDINANCES HAVE BEEN ATTACKED AS VIOLATING FIRST AMENDENT RIGHTS OF FREEDOM OF SPEECH AND ASSEMBLY. THESE ATTACKS HAVE BEEN GENERALLY UNSUCCESSFUL. A MORE POTENT ARGUMENT AGAINST CERTAIN LOITERING STATUTES HAS BEEN THAT THE REQUIREMENT THAT A PERSON IDENTIFY HIMSELF AND EXPLAIN HIS PRESENCE TO A LAW ENFORCEMENT OFFICER VIOLATES THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION. FOOTNOTES AND REFERENCES ARE PROVIDED. (JAP)