Two schools of thought are behind loitering. One, that it is reportedly a precursor to crime and two, that laws around it are discriminatory and even unsafe.
Opponents of loitering laws argue that policies barring people from lingering in public places go against the intent of the law: to prioritize justice. Statutes criminalizing loitering are said to discriminate; they highlight biases against a person’s race, gender and even physical appearance (e.g., wearing a certain attire).
Proponents of criminalizing loitering maintain that laws keep the public and properties safe. Specifically, they address illegal movements, from gang activity to drug deals. Laws prohibiting the act of loitering also focus on prostitution.
Where did this concept spring from, connecting loitering with criminal activity?
Why Loitering is a Crime
Loitering is considered linked to crimes because in 1600 England, many unemployed people took to the city streets and roamed villages due to widespread famine and job loss. When their numbers rose, so did the volume of crime. As a result, the British Parliament enacted the Poor Laws.
The set of laws were designed to help the poor by raising taxes that went into funding for almshouses and giving cash to the aged for indoor relief. But it was also largely a heavy-handed way of dealing with the different categories of dependents in an effort to maintain order, which was covered under the vagrancy laws. It gave the authorities a guide to deal with the involuntary unemployed, the helpless and the vagrant.
Much of loitering laws in the US reportedly take from Britain’s Poor Laws since it focuses on crime prevention. In contrast to the other provisions in the Poor Laws, which were economically driven, the vagrancy laws addressed loitering as a criminal offence.
But what is even loitering? Are you committing a criminal act just by standing in one place — for no apparent reason? Can the police arrest you when you’re simply taking a load off and sitting on a public bench?
What is Considered as Loitering?
Loitering by itself is not deemed as bad, except when connected with the act of committing a crime.
Some State laws present their connection as:
“A person is guilty of loitering in the first degree when he loiters or remains in any place with one or more persons for the purpose of unlawfully using or possessing a controlled substance, as defined in section 220.00 of this chapter.” (New York Section 240.36)
“It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” (Florida Statutes 856.021)
In Hawaii, the State connects loitering with the intent to engage in or advance prostitution. So its statutes prohibit any person from remaining, wandering, or loitering in public places while repeatedly calling, stopping or attempting to stop people and engaging them in conversation. Public places cover alleyways and doorways or entrances of any building facing any other public place.
The meaning of loitering, for legal purposes, can be vague and broad. This is why opponents to these laws are adamant about its abuse by authorities.
An argument can be said for how the police would arrive at figuring out that a person who is staying or wandering in one place has unlawful intent. A suspicion is hardly a cased close scenario, leaving room for enforcing the law out of biases. Some people could be mistaken for their actions if they look a certain way.
Vague and overly broad laws on loitering cover two critical aspects to their violation:
- That you are present, and
- That you have no discernible intent.
Although the vagueness of loitering statutes will seem like they prohibit constitutional activities (i.e., hanging out with friends on a sidewalk, watching people pass by on a street, etc.), this is not to say they may not work to prevent unconstitutional activities?
What are Examples of Loitering?
In most cases, enforcement of loitering laws may be left up to the discretion of the police.
One example of loitering would be a group of friends hanging out in front of a neighborhood store. If the patrolmen assigned to that area are tolerant, they may just warn the group to keep it down or ask the store owner if the group is causing a disturbance, and then take the necessary action.
Another example of loitering would be if you were obstructing an entrance to a public or private building. In this instance, an officer will remove you and, if you behaved aggressively, may arrest you on the spot even if your criminal intent cannot be proven.
Other examples of loitering involve previous criminal behavior. If you filed a restraining order against another person, and that person showed up on your property prowling or stood on a sidewalk in your neighborhood, they may be arrested for loitering. In this case, loitering laws work for you.
In some cases, loitering laws may only deter a criminal for a period.
Such is the case of Ottis Toole, who was arrested in 1964 for loitering. Toole was 17 at the time and in the years that followed, went on a crime spree as a serial killer and cannibal. Two years prior to his arrest for a misdemeanor, Toole had run over and killed a traveling salesman for propositioning him for sex.
What is Considered Vagrancy?
One other similar law under scrutiny is the vagrancy laws. Vagrancy differs from loitering in that it focuses on people who live on the street or persons without any means of support. They may sleep on a park bench or beg on the side of a street.
The legal definition of vagrancy is a state or act of someone who has no known home or visible or lawful means of support, drifting from place to place.
Opponents of the law criticize it for criminalizing homelessness and joblessness. Because a person should not be punished for their unfortunate circumstances, many vagrancy laws have been struck down. To arrest someone for their financial, medical or mental problems violates the principles of fairness.
A Good Criminal Defense to Loitering
Vagrancy and loitering are not serious offenses.
Most states impose a fine, others come with some jail time. Some states punish violators with at least up to 60 days in jail, whereas some serve community service. The penalties get heavier with repetition.
Although a misdemeanor, an arrest for loitering or vagrancy is still a legal matter that must be dealt with a legal professional. The experience and sound judgment of a criminal defense attorney can help you make a good case, especially if you were just “standing around.”
An experienced litigator will recognize if the prosecutor’s criminal case is weak. They can challenge the vagueness of the law and argue that your behavior did not warrant a justifiable and reasonable alarm for the safety of others.