Loitering
Loitering refers to the act of remaining in a particular public place for a prolonged period without any apparent purpose. While loitering laws exist in various localities, they are controversial and infrequently enforced due to challenges surrounding their constitutionality. Often categorized as a type of disorderly conduct, these laws can become tools for police to stop and question individuals, especially those viewed as suspicious, even in the absence of direct evidence of wrongdoing. Critics argue that enforcement is selective and tends to disproportionately affect marginalized groups, such as youths, minorities, and the unemployed. The First Amendment protects the right to peaceably assemble, complicating the legality of laws that merely prohibit lingering in public spaces. Historical contexts, such as protests against segregation, highlight how loitering laws have been used to suppress dissent. In recent years, some jurisdictions, including New York, have repealed loitering laws, with advocates pointing out their misuse against specific populations, such as transgender individuals. Overall, the topic of loitering brings forth a complex intersection of public safety, civil rights, and social justice.
On this Page
Subject Terms
Loitering
SIGNIFICANCE: The difficulty of determining what constitutes loitering allows police to enforce antiloitering laws capriciously; loitering is consequently a controversial but rarely prosecuted offense.
Loitering laws have been passed in many localities at many times, primarily as a method of arresting or questioning persons who are under suspicion of other crimes. It is most often classified as a type of breach of the peace or disorderly conduct. A suspected prostitute, for example, may be ordered to move along under loitering statutes, even if no direct evidence exists that he or she is soliciting clients.
Loitering, in and of itself, is rarely prosecuted, because there have been many successful challenges to its constitutionality. However, it provides a reason for police to stop and question persons. If such persons seem to be engaged in or intending to engage in more serious crimes, an arrest can then be made.
The selective nature of enforcement is one reason that loitering laws are often challenged and rarely enforced. It is likely that a police officer will ignore the presence of a seemingly respectable person sitting or standing in a public place but may insist that a youth, a member of a minority group, or a possibly unemployed person move along.
The most crucial problem faced by those attempting to enforce loitering laws is that the First Amendment to the Constitution guarantees the “right of the people peaceably to assemble.” This means that unless criminal content can be proven or private property rights are infringed, any law that merely prohibits a person from staying in one place is clearly unconstitutional.
This issue became a major source of controversy in the 1950s and 1960s, when mass political protests became common. An early example was sit-ins staged by African American customers in the White sections of restaurants and other businesses. While the laws allowing businesses to segregate their clientele had already been declared unconstitutional by the US Supreme Court, localities still used loitering laws to remove protesters from their seats. Ultimately, such attempts at law enforcement could still be appealed on constitutional grounds, because the sit-in participants were there for a specific purpose and often tried to order goods or services. Somewhat later, the same principle was used to attempt to disperse peaceful demonstrations. A common tactic was to arrest large numbers of people for loitering and similar offenses, thereby disrupting the protests, and then quickly drop the charges before the constitutionality of the laws could be questioned.
In the twenty-first century, some jurisdictions have repealed loitering laws. New York, for example, repealed the state loitering law in 2021. Opponents of the law had noted it was frequently used to target transgender people and was commonly referred to as the "walking while trans" law.
Bibliography
Brooks, George. “Let’s Not Gang Up on Our Kids.” U.S. Catholic 62, no. 3 (March 1, 1997).
Critcher, Chas, and David Waddington. Policing Public Order: Theoretical and Practical Issues. Vermont: Ashgate, 1996.
"The Jim Crow Roots of Loitering Laws." Anti-Racism Daily, 31 May 2022, antiracismdaily.com/2022/05/31/the-jim-crow-roots-of-loitering-laws/. Accessed 5 July 2024.
McKinley, Jesse, and Luis Ferre-Sadurni. "N.Y. Repeals Law That Critics Say Criminalized 'Walking While Trans.'" The New York Times, 2 Mar. 2021, www.nytimes.com/2021/02/03/nyregion/walking-while-trans-ban.html. Accessed 5 July 2024.
Schragger, Richard C. “The Limits of Localism: Gang Anti-loitering Law and Local Government.” Michigan Law Review 100, no. 2 (November, 2001).