Illegal to (Among Other Things) “Be[] at a Location Frequented by Persons Who Use, Possess or Sell Drugs”

Winston-Salem, N.C., had an ordinance that provided,

(b) It shall be unlawful for a person to remain or wander about in a public place under circumstances manifesting the purpose to engage in a violation of the North Carolina Controlled Substances Act, G.S. 90-89 et seq. Such circumstances are:

(1) Repeatedly beckoning to, stopping or attempting to stop passersby, or repeatedly attempting to engage passersby in conversation;

(2) Repeatedly stopping or attempting to stop motor vehicles;

(3) Repeatedly interfering with the free passage of other persons;

(4) Such person behaving in such a manner as to raise a reasonable suspicion that he is about to engage in or is engaged in an unlawful drug-related activity;

(5) Such person repeatedly passing to or receiving from passersby, whether on foot or in a vehicle, money or objects;

(6) Such person taking flight upon the approach or appearance of a police officer; or

(7) Such person being at a location frequented by persons who use, possess or sell drugs.

The North Carolina Court of Appeals struck this down Tuesday, in State v. Mello; here’s part of its reasoning:

In Evans [an earlier case -EV], we upheld the constitutionality of a statute that prohibited loitering for the purpose of engaging in prostitution, because it required that the person engage in certain acts “for the purpose of violating” anti-prostitution laws. We reasoned that, although some of the acts encompassed in the loitering statute were constitutionally permissible (i.e., repeatedly attempting to engage passersby in conversation, repeatedly stopping vehicles), the statute “require[d] proof of specific criminal intent, the missing element in unconstitutional ‘status’ offenses such as simple loitering.”

Contrary to the statute at issue in Evans, the present Ordinance does not require proof of intent to violate a drug law, but imposes liability solely for conduct that “manifests” such purpose…. [Footnote: We note during defendant’s trial the jury was not instructed that defendant was required to have the intent or purpose to violate the Controlled Substances Act to be found guilty of loitering for the purpose of drug-related activity.] The Ordinance lists seven types of actions, each of which, by definition, is “conduct that manifests a purpose” to violate a drug law.

Because the Ordinance fails to require proof of intent, it attempts to curb drug activity by criminalizing constitutionally permissible conduct. Under the Ordinance, anyone who engages in the conduct listed in Ordinance § 38-29(b)(1)-(7) is deemed to possess the requisite intent to engage in drug-related activity, regardless of his or her actual purpose. A law which criminalizes a substantial amount of constitutionally permissible conduct is unconstitutionally overbroad.

Thus, the Ordinance permits the police to arrest a person who socializes at a community event for “repeatedly attempting to engage passersby in conversation[.]” Anyone who attempts to flag down taxicabs violates the Ordinance by “[r]epeatedly stopping or attempting to stop motor vehicles[.]” If an individual stops people on the sidewalk to conduct a public survey, he is “repeatedly interfering with the free passage of other persons[.]” Somebody who hands out fliers in public or collects donations is “repeatedly passing to or receiving from passersby … money or objects[.]” A person who walks in the opposite direction of a police officer that he observes could be considered to be “taking flight upon the approach or appearance of a police officer[.]” A person who is present in an area where drug arrests have occurred or drug-dealers have visited, can be arrested for “being at a location frequented by persons who use, possess or sell drugs.” Accordingly, we hold the Ordinance to be unconstitutionally overbroad.

[UPDATE: I added the following paragraphs to the quote some time after putting up the post.]

[From the separate discussion of vagueness: -EV] It is unreasonable to expect an average citizen to predict what conduct is considered to be “behaving in such a manner as to
raise a reasonable suspicion that he is about to engage in or is engaged in an unlawful drug-related activity.” The Ordinance, here, fails to define what type of conduct violates this provision, and leaves ordinary persons uncertain on how to adhere to the law.

Furthermore, a reasonable suspicion of illegal activity is not sufficient to justify an arrest, as the Fourth Amendment requires the police to have probable cause before making an arrest. Arresting a person on suspicion alone is prohibited by our Constitution. In accordance with these principles, we hold § 38-29(b)(4) of the Ordinance to be unconstitutionally vague, as it fails to clarify what behavior this provision governs.

Note that, in its overbreadth discussion, the court is listing both behavior that is (1) protected by the First Amendment (such as handing out fliers, or taking a survey) and behavior that (2) probably isn’t constitutionally protected — for instance, trying to flag down a taxicab, which possibly might be outlawed if the city really wanted to — but that is generally seen as itself entirely innocent, and that no legislature wants to categorically ban. Generally speaking, federal overbreadth doctrine focuses only on the overbroad inclusion of constitutionally protected speech (category 1 in the preceding sentence), and allows prophylactic laws that ban a good deal of otherwise innocent but not constitutionally protected behavior. But I’ve seen other state cases that also treat laws as overbroad when they cover a lot of conduct that is broadly seen as innocent even if it isn’t constitutionally protected (category 2).