ACLU of Minnesota Urges City Officials to Repeal Unconstitutional "Lurking and Loitering" Law

Affiliate: ACLU of Minnesota
February 14, 2003 12:00 am

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ACLU of Minnesota Urges City Officials to Repeal Unconstitutional “Lurking and Loitering” Law


ST. PAUL — The American Civil Liberties Union of Minnesota today said that it has called on officials of Park Rapids to immediately repeal a “Lurking and Loitering” ordinance because it appears to be an unconstitutional restriction on free speech.

“These types of broad anti-loitering ordinances are almost universally unconstitutional,” said Charles Samuelson, Executive Director of the ACLU of Minnesota. “The city wants to prohibit innocent conduct that annoys or disturbs others. We simply do not have the right to avoid being annoyed by what other people do or say.”

In a February 6 letter to City Attorney John Masog, the ACLU called on the city to immediately cease enforcing the ordinance and repeal it or rewrite it in a manner consistent with the U.S. and Minnesota Constitutions. The letter also requested a response from the city by February 28. Park Rapids is a resort city of 3,500 located 200 miles northwest of St. Paul.

The ordinance cannot stand as written, the ACLU said in its letter, because its broad language encompasses a vast array of constitutionally protected First Amendment activities. “Prohibited activities may include window-shopping, waiting for the bus, or seeking shelter from a storm under a storefront awning,” the ACLU letter said. In addition to the free speech concerns, the vague, subjective standards included in the ordinance make it difficult for people to know whether their conduct is illegal and make it susceptible to police abuse.

“We hope that the City will do the right thing in this situation,” Samuelson said.

The letter follows:

February 6, 2003

John Masog

Park Rapids City Attorney

201 South Main Street

Park Rapids, Minnesota 56470

Dear Mr. Masog:

The Minnesota Civil Liberties Union (MnCLU) was recently notified of a growing concern in Park Rapids. A number of residents believe the City’s Lurking and Loitering ordinance violates their constitutional rights. We agree. The MnCLU believes that the Park Rapids Lurking and Loitering Ordinance, Section 46-2, is unconstitutionally vague, in violation of the Due Process Clauses of the Fifth and Fourteenth Amendments. In addition, the ordinance infringes on protected First Amendment rights. For the reasons set forth below, we ask that Park Rapids give this matter the attention it deserves.

An ordinance fails to satisfy Due Process requirements “if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits.” Vagueness may invalidate a criminal law for either of two independent reasons. First, penal ordinances must define criminal offenses with sufficient definiteness so that ordinary people can understand what conduct is unlawful. Second, a penal ordinance cannot authorize or encourage arbitrary and discriminatory enforcement. City of Chicago v. Morales, 527 U.S. 41 (1999); Kolander v. Lawson, 461 U.S. 352 (1983). The Park Rapids Lurking and Loitering Ordinance cannot satisfy either requirement.

A fundamental feature of due process is that one’s guilt or innocence of a crime be determined by objective, clearly understood standards of criminality. This fair notice requirement compels legislatures to define criminal conduct in a way that clearly distinguishes it from innocent conduct. Without proper notice, citizens have no clear way of knowing when they have broken the law. The Park Rapids loitering ordinance fails to provide requisite notice because lawful and unlawful conduct is virtually indistinguishable.

Initially, the constitutionality of a vague penal standard is closely related to whether the standard incorporates a mens rea requirement – intent to commit a criminal act. Due Process prohibits legislatures from setting a net large enough to catch all possible offenders, enabling the police to snare citizens who are generally undesirable, although not chargeable with any particular offense. Papachristou v. City of Jacksonville, 405 U.S 156 (1972). The Park Rapids loitering ordinance does not require that citizens act “with an intent” or “with a purpose” to engage in criminal behavior. Instead, everyday conduct, irrespective of a person’s intent, is subject to criminal sanction.

Courts have uniformly invalidated laws that do not join the term loitering with a second specific element of a crime. Yet, Park Rapids punishes behavior, which, by all modern standards, is normally innocent. All conduct resulting in the “making of any noise” or the “annoyance or disturbance of another” is strictly prohibited. The ordinance bans “profane, abusive, indecent or threatening language,” and acting in ways “likely to arouse alarm, anger, fear, or resentment in another.” Likely offenders include friends shouting across the street, spouses arguing in public, citizens voicing objectionable viewpoints, and children playing in the park. Furthermore, the ordinance directs police officers to remove anyone who “linger[s] or stand[s] about any building ? in such manner as to annoy the owner or occupant.” Prohibited activities may include window-shopping, waiting for the bus, or seeking shelter from a storm under a storefront awning. Finally, early-bird shoppers, Sunday-strollers, campaigners and protesters beware; Park Rapids prohibits residents from “collect[ing] singly or in groups about a business premises which is closed.” While the conduct and language Park Rapids seeks to prohibit are generally undesirable, they are not, by themselves, criminal offenses.

Moreover, inherently subjective loitering ordinances – those allowing police officers to selectively define criminal conduct – fail to provide adequate notice under the Due Process Clause. The United States Supreme Court reaffirmed this principle in City of Chicago v. Morales, 527 U.S. 41 (1999). Chicago’s gang loitering ordinance defined loitering as “to remain in any one place with no apparent purpose.” In application, police officers issued dispersal orders after determining citizens were loitering within the definition of the ordinance. The “apparent purpose” standard, however, was inherently subjective, leaving the public to question whether their purpose was “apparent” to a police officer. As Justice Stevens noted, “[t]he purpose of the fair notice requirement is to [allow] the ordinary citizen to conform his or her conduct to the dictates of the law.” Ultimately, Chicago’s definition of loitering lacked requisite notice because it failed to distinguish lawful and unlawful conduct.

Like Morales, Park Rapids’ definition of loitering is fatally subjective. Park Rapids defines loitering, in part, as “refusing to move on when so requested by a police officer.” The ordinance compels officers to issue a dispersal order after they determine someone is acting in a manner prohibited by the ordinance, i.e., whether or not someone’s conduct is annoying, disturbing, or offensive. However, the prohibited conduct is inherently subjective, leaving the determination of whether someone has criminally loitered to the officer’s sole discretion. And the officer’s discretion will inevitably vary from person-to-person, situation-to-situation. The Park Rapids ordinance contains no clear standards distinguishing permissible loitering and criminal loitering. Indeed, it is difficult to imagine how anyone could distinguish between innocent and criminal annoying conduct.

The Park Rapids ordinance compounds the inadequacy of notice by failing to define the phrase, “refusing to move on when so requested by an officer.” While the ordinance specifically defines loitering as the refusal to move, it does not inform citizens what they need to do to comply with the officer’s request. Nor are officers required to tell citizens what they must do to comply with the ordinance. Rather, police officers subjectively determine whether individuals have moved far enough from the scene to bring their conduct outside the definition of loitering. How far must a person go to escape criminal imposition? How much time must pass until they can return? If they do return to the same vicinity, are they subject to arrest, or another dispersal order? If people of common intelligence must necessarily guess at the meaning of a statute and differ as to its application, then the statute is unconstitutionally vague and invalid. Kolander, 461 U.S. at 357-8.

The vagueness infecting the ordinance leads to a greater danger; it opens the door to arbitrary and discriminatory enforcement, allowing police officers to unjustly sweep the streets of “undesirables”. “[T]he more important aspect of the vagueness doctrine ‘is not actual notice, but the other principle element of the doctrine – the requirement that a legislature establish minimal guidelines to govern law enforcement.'” Id., 461 U.S. at 358.

In Coates v. City of Cincinnati, 402 U.S. 611 (1971), the Supreme Court invalidated language identical to that used in the Park Rapids ordinance. The Court struck down an Ohio ordinance making it a criminal offense for “three or more persons to assemble ? [and] conduct themselves in a manner annoying to persons passing by.” The ordinance failed to reasonably define a standard of criminal conduct, subjecting the right to assembly to an unascertainable and inherently subjective standard. The Park Rapids ordinance also uses inherently subjective standards to define criminal conduct. Indeed, “[c]onduct that annoys some people does not annoy others.” While Park Rapids may constitutionally enact and enforce ordinances directed at specific criminal behavior, it cannot do so through an ordinance whose violation may entirely depend upon whether a police officer is annoyed, disturbed, or offended.

Similarly, in Morales, Chicago’s loitering ordinance gave officers unfettered discretion to decide what activities constituted loitering. The “no apparent purpose” standard was inherently subjective because its application depended on whether some purpose was “apparent” to the officer. The result is no different in Park Rapids. Park Rapids police selectively define what constitutes annoying, disturbing, or offensive conduct, and whether or not someone complies with their dispersal order. Moreover, the ordinance’s ambiguously vague standards allow an officer to arbitrarily issue a dispersal order, and, if the person refuses to leave the area, determine the person’s refusal is itself annoying or disruptive. Essentially, Park Rapids “entrust[s] lawmaking to the moment-to-moment judgment of the policeman on his beat.” Kolender, 461 U.S. at 360.

The dangers of vague criminal ordinances are a reality in Park Rapids. The MnCLU has received allegations that police officers arbitrarily and discriminatorily enforce the loitering ordinance against the City’s youth. According to Michelle Grubb, Police officers swarmed on her daughter shortly after she parked her car. She had only stopped to speak with some friends who had pulled into a nearby parking space (surprisingly, they were all ticketed without first being asked to move). Jeff Menton told the story of his son who was only off work for a few minutes when he received a loitering ticket sitting in his car. Officers also warned another man sitting in his car while his girlfriend was inside renting movies. A consistent theme emerges from these stories: police officers are sweeping the streets of Park Rapids’ youth like they were “spraying for bugs.” The Park Rapids Enterprise, Some Businesses Fear Perception Tickets May Convey, Lu Ann Hurd-Lof, Aug. 9, 2002 (Katie Magozzi, chamber executive director, referring to the infestation of Park Rapids’ youth).

In addition to lacking proper notice and encouraging arbitrary and discriminatory enforcement in violation of the Fifth and Fourteenth Amendments, Park Rapids’ loitering ordinance disturbs the principles of the First Amendment overbreadth doctrine; thus, infringing on constitutionally protected speech and conduct.

First Amendment rights are fundamental cornerstones of our nation. The freedoms of speech and assembly protect the free flow of ideas, an important function in a democratic society. Yet, Park Rapids’ loitering ordinance prohibits First Amendment speech and conduct in public forums – such as public streets, parks, and sidewalks – traditionally so associated with First Amendment rights that denying access to it for this purpose is strictly prohibited.

The overbreadth doctrine invalidates laws that substantially inhibit First Amendment speech and conduct. An ordinance is overbroad if its reach ensnares both protected and non-protected First Amendment activities, essentially punishing otherwise innocent and constitutionally protected conduct. Broadrick v. Oklahoma, 413 U.S. 601 (1973). This standard is far more restrictive when protective speech and criminal penalties are involved. Without a question, the Park Rapids Lurking and Loitering ordinance prohibits substantial amounts of constitutionally protected speech and conduct.

Foremost, the ordinance infringes on a citizen’s right to innocently travel from place to place. The fundamental right to travel is deeply rooted in American jurisprudence. This “right to remove from one place to another according to inclination” is “an attribute of personal liberty” protected by the constitution. Morales, 527 U.S. at 53. Indeed, “[t]he freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due process clause of the Fourteenth Amendment.” Id. at 53. In Park Rapids, innocent loitering is a criminal activity. Residents risk criminal charges strolling through public parks, waiting for the bus, or simply stopping on the sidewalk.

The Park Rapids ordinance also prohibits a substantial amount of protected First Amendment speech. It is presumptively unconstitutional to penalize speech because of its content, regardless of its undesirable nature. The history of America proves the notion that unfavorable opinions and ideas may very well change the course of history. Nevertheless, Park Rapids bans all speech and conduct that may annoy, disturb, or offend others, effectively regulating the content of public dialogue. Police officers determine which ideas are suitable for public utterance, and whether or not public protests or social gatherings are annoying, disturbing, or resenting to themselves or passersby. The ordinance’s broad proscriptions have a “chilling effect” on First Amendment speech.

Certain types of speech or expression do not warrant constitutional protection. While, in theory, the First Amendment permits bans on the use of “fighting words,” the doctrine is narrowly limited to unambiguous invitations to brawl directed by one person to another. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Lewis v. City of New Orleans, 415 U.S. 130 (1974). Similarly, while “obscenity” is a narrowly defined category of unprotected speech, broad attempts to prohibit indecent or obscene language encounter resistance among courts. Butler v. Michigan, 352 U.S. 380 (1957); Winters v. New York, 333 U.S. 507 (1948). Park Rapids categorically punishes all vulgar, offensive, and indecent speech. The ordinance’s broad proscriptions equally apply to protected First Amendment speech (non fighting words or obscenity).

Finally, the ordinance impairs the constitutional right to free assembly and association. The right to join together with other persons for expressive or political activity is an essential component of the First Amendment. The Park Rapids ordinance, however, effectively punishes or deters citizens from collecting in groups for protest or public rally. The ordinance even prohibits organized picketing outside closed businesses. Even when people do gather at public parks or along sidewalks, their conduct cannot be noisy, annoying, disturbing, or resenting to officers or passersby. Public intolerance or animosity cannot be the basis for abridging constitutional freedoms. “The First and Fourteenth Amendments do not permit a State [or City] to make criminal the exercise of the right of assembly simply because its exercise may be ‘annoying’ to some people.” Coates, 402 U.S. at. 615.

In sum, the Park Rapids Lurking and Loitering ordinance must fail. While Park Rapids may use its police power to promote general welfare and public safety, it cannot rightfully do so by burdening or prohibiting constitutionally protected activity. Cf. State of Minnesota v. Mercherson, 438 N.W.2d 707 (Minn. Ct. App. 1989). The ordinance is also unconstitutionally vague in violation of the Due Process Clauses of the Fifth and Fourteenth Amendments. The ordinance criminalizes innocent conduct, and fails to adequately notify citizens of prohibited criminal conduct. Moreover, Park Rapids police officers enforce the ordinance in an arbitrary and discriminatory manner against the City’s youth. Any plaintiff may assert standing to facially attack an ordinance when vagueness permeated its text.

Park Rapids must immediately cease enforcement of its Lurking and Loitering ordinance, and either repeal or rewrite the ordinance consistent with the Minnesota and United States Constitutions. Many loitering ordinances have been found constitutional when written to prohibit specific criminal activity. The MnCLU does not want to engage in costly litigation; however, we are prepared to pursue this matter even if it requires legal action. The MnCLU will expect a written response to this request by February 28th, 2003. We understand Park Rapids’ desire to clean up its streets; we only ask that it do so within its constitutional confines.


Christopher Champagne

MnCLU Pro Bono Attorney

Minnesota Civil Liberties Union
1821 University Avenue, Suite N-392
St. Paul, MN 55104
Phone: 651.645.4097

cc: Mayor Ted Godfrey

Nancy Carroll

Kathy Craddock

Nancy Tague

Clyde Zirkle

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