Targeted Loitering Laws
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Andrew D. Leipold
INTRODUCTION
One of the enduring tensions in law enforcement is between the
need to keep public areas clear of annoying, unnerving, and poten-
tially dangerous people and the right to gather, converse, and idle.
Attempts to resolve this tension have often taken the form of street
sweeping statutes-loitering and vagrancy laws that prohibit certain
behavior that falls short of traditional criminal conduct. Although
these statutes were and are common, attempts to enforce them occa-
sionally founder, as courts are prone to find the most extreme of
these laws unconstitutionally vague.'
Recently the City of Chicago thought it had struck a proper bal-
ance between being specific about the prohibited behavior while still
giving the police enough discretion to handle the problem. In 1992
it passed an ordinance prohibiting criminal street gang members
from loitering (defined as remain[ing] in any one place for no
apparent purpose) in public with each other or with non-gang
members. If a police officer observed gang members loitering, she
had the authority to order the group to disperse and the individuals
Professor, University of Illinois College of Law. This paper was presented as part of a
symposium entitled Race, Crime, and the Constitution sponsored by the University of Pennsyl-
vania journal of Constitutional Law.
See, e.g., Kolender v. Lawson, 461 U.S. 352, 359-61 (1983) (holding unconstitutionally
vague a California statute requiring loiterers to present credible and reliable identification, as
it provided inadequate notice to potential suspects and gave police officers too much discre-
tion); Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972) (holding a Jacksonville va-
grancy ordinance unconstitutionally vague, as it was too general and inclusive, providing little
notice to potential offenders); Coates v. City of Cincinnati, 402 U.S. 611, 614-15 (1971) (hold-
ing that a Cincinnati ordinance making it an offense to assemble in a group of three or more
people and act in a manner annoying to passers-by was unconstitutional for vagueness and for
infringing on the right to assemble); see also Broughton v. Brewer, 298 F. Supp. 260, 271 (S.D.
Ala. 1969) (holding that an Alabama vagrancy statute that listed thirteen broad definitions for
the term vagrancy was unconstitutionally overbroad and gave inadequate notice to potential
offenders); E.L. v. State, 619 So. 2d 252, 253 (Fla. 1993) (holding unconstitutionally vague and
overbroad a Sanford ordinance prohibiting loitering for the purpose of engaging in drg-
related activity); People v. Bright, 520 N.E.2d 1355, 1361 (N.Y. 1988) (holding that a New York
statute prohibiting a person from loitering in a transportation facility was unconstitutionally
vague, as it failed to give adequate notice to potential offenders and afforded police officers too
much discretion).](ViewImageLocal?handle=hein.journals/upjcl3&div=16&collection=&method=preview&ext=.png&size=3)
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