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).
Oren says:
Not exactly related, but has any legislator (or related person) ever called you up and asked how to draft these statutes in non-facially-defective ways? Do they call any lawyers at all?
I’m all for drafting a law that effectively criminalizes drug dealers when they harass passersby and I love to hear about the correct way a town could do so.
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November 6, 2009, 1:02 pmTriangle Man says:
...about to engage in or is engaged in an unlawful drug-related activity;
Oh, I see the problem:
...fixing to engage in or is engaged in an unlawful drug-related activity;
There, that should pass constitutional muster now.
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November 6, 2009, 1:07 pmSoronel Haetir says:
This post reminds me so much of various COPS episodes with officers flat telling people not to come to city parks or they will get arrested on drug charges.
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November 6, 2009, 1:10 pmRailroad Gin says:
I guess it would be a felony to pass the Grey Poupon.
There’s no way that anyone reading that statute would not see the constitutional flaws; certainly not a legislative body that is receiving legal advice during the process.
Maybe I’m too cynical, but I think a lot of legislators intentionally draft these laws to be unconstitutional. It keeps the issue alive. They can show voters they’re tough on drugs, child porn, etc. Then when the law is predictably struck down by the courts, they can show how tough they are once more by voting for another law.
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November 6, 2009, 1:12 pmEinhverfr says:
Given that a large number of state legislators are lawyers, I would agree that this sort of law is one that is intended to be struck down.
I notice here something I didn’t see in the court’s reasoning, that mere suspicion of a crime is not enough for guilt, and yet this statute criminalizes behavior that merely arouses reasonable suspicion. It seems to me (and IANAL) there are two elements here that are worth considering:
1) Nobody has fair warning what sort of behaviors would be covered under this law. Instead, it is a crime to be the subject of a police officer’s arguable suspicion that you are about to violate a law. That seems to be almost a textbook example of a law that should be struck down on vagueness grounds.
2) Even if we don’t assume this is too vague, it still criminalizes being the subject of mere suspicion. This essentially adopts a “guilty until proven innocent” framework which is an anathema to our Constitutional sytem.
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November 6, 2009, 1:38 pmOff Kilter says:
“Maybe I’m too cynical, but I think a lot of legislators intentionally draft these laws to be unconstitutional. It keeps the issue alive. They can show voters they’re tough on drugs, child porn, etc. Then when the law is predictably struck down by the courts, they can show how tough they are once more by voting for another law.”
I follow your reasoning except for the “Maybe I’m too cynical” part...
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November 6, 2009, 1:41 pmsk says:
“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.””
Perhaps a minor quibble, but doesn’t this statement really invalidate the law against loitering rather than justify it? IF the law against loitering requires proof of criminal intent, well couldn’t the individual just be charged with that particular crime (attempted mugging, attempted prostitution, or whatever the crime behind the ‘criminal intent’ was). And if you have enough proof to arrest someone for that, you don’t need the law against loitering???
I assume laws against loitering are written because ‘criminal intent’ is so difficult to prove (i.e. talking to drivers in cars doesn’t ‘prove’ you are a prostitute-maybe you just like to talk...). If, they require proof of criminal intent to be constitutionally valid, then they are either prohibitively difficult to prove (just like the original law against prostitution) or irrelevant (because the loiterer can be safely charged with prostitution).
Sk
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November 6, 2009, 2:11 pmYankev says:
A particularly perverse result: an outreach social worker or minister trying to keep at risk teens from using drugs would probably violate #1, 3, 5 & 7 at least.
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November 6, 2009, 2:24 pmJay says:
Einhverfr, Off Kilter:
Perhaps, but this was a city ordinance, not a state law, so the sophistication level of the drafters is probably a bit lower. Also, I think semi-elite lawyers and law students, or at least those who have an interest in higher level con-law questions as evidenced by commenting here, often vastly overestimate the extent to which the average member of the bar understands or cares about such things.
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November 6, 2009, 2:33 pmNick says:
More proof that we need to rethink our drug policies. The craziest laws and judicial decisions always seem to arise from drug related cases. Going after the person buying drugs or even the street level dealer is the small fish in a large pond. It would be infinitely more reasonable to take all the resources and focus them solely on high level individuals.
On a different note, why we don’t legalize prostitution so that we can regulate and clean it up is beyond me.
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November 6, 2009, 2:42 pmNickM says:
Isn’t flagging down a taxicab commercial speech and symbolic speech, deserving of some constitutional protection?
Nick
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November 6, 2009, 2:42 pmNickM says:
Good thing the Dallas Cowboys don’t play in Winston-Salem.
Nick
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November 6, 2009, 2:44 pmBryan Gates says:
I am a Winston-Salem criminal defense lawyer. The offense is a local ordinance, it was passed by a city council, not the state legislature. It was patterned after a state law prohibiting loitering for purposes of prostitution. However the prostitution statute required proof of intent to engage in prostitution. The drug loitering ordinance did not.
I, along with others, have long argued that the ordinance was unconstitutional. The arguments fell on deaf (more likely shut) ears. Violation was punished as a low-level misdemeanor, so there were few opportunities to appeal. In this case, the loitering charge was joined with some other more serious charges, so there was finally some serious appellate review.
A friend of mine was the trial attorney.
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November 6, 2009, 2:56 pmwm13 says:
I disagree. People don’t care what happens in Colombia or secret meth labs. It’s the drug trafficking in their own neighborhood that they want stopped.
I’m speaking somewhat hypothetically, of course, because there isn’t any drug trafficking in my neighborhood. The doormen wouldn’t allow it. I realize that life is harder for people without doormen or gatehouse guards or campus security or whatever. Tough luck for them.
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November 6, 2009, 2:59 pmOren says:
Nonsense. There’s no street drug trafficking (which is a menace unto itself) but I’m sure people are buying and selling drugs in private (where it belongs).
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November 6, 2009, 4:02 pmHey says:
Doormen building tend to have the most drug trafficking — at least by weight. Cities with doormen are cities with dealers who deliver and won’t raise questions from said doormen.
As to the loitering vs attempted point — as far as I’m aware attempted burglary and other attempted crimes are punished under “possession of tools” or “loitering for the purpose of” statues specifically because it is exceptionally hard to prove an attempt in these situations “we’re just sitting here officer, we weren’t going to rob that house, no sir...”. Attempted murder is typically much easier (you shoot someone, or shoot at someone along with evidence of intent). Interestingly some crimes can only be prosecuted as attempts and not if they succeed (or only rarely if they succeed) — treason, suicide, bribery, extortion. Wiretaps and other investigations tend to be the source for charges of the latter two crimes.
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November 6, 2009, 4:27 pmFub says:
Unless the residences in your neighborhood are panopticons run by the doormen, I have some doubt about that.
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November 6, 2009, 4:32 pmLaura(southernxyl) says:
Wow. There have been times when I wished I had a constitutional right to, for instance, leave my car and walk into a drugstore in the process of going about my lawful business, without people getting in my face about something.
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November 6, 2009, 6:34 pmtarheel says:
You know what they say about the blind squirrel and the nut . . . glad to see the N.C. Court of Appeals finally got one right. Never has there been such a set of B-grade lawyers wearing black robes. If you doubt me, read this doozy of an opinion from earlier this week, wherein the court affirms 12(b)(6) by reference, in part, to the defendant’s answer.
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November 6, 2009, 7:39 pmSuperSkeptic says:
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November 6, 2009, 8:21 pmcorneille1640 says:
Does this mean that the people so punished simply decided it wasn’t worth the money and time to contest the charge?
This speaks to a question I have about this ordinance: how many people were punished for violating this unconstitutional measure before it was finally invalidated? Do these people have any retroactive recourse, say, by having it expunged from their record? (Or are “low-level misdemeanors” not included on a person’s “record”?)
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November 7, 2009, 11:17 amBoom Boom says:
Oregon has a frequenting law too:
167.222 Frequenting a place where controlled substances are used. (1) A person commits the offense of frequenting a place where controlled substances are used if the person keeps, maintains, frequents, or remains at a place, while knowingly permitting persons to use controlled substances in such place or to keep or sell them in violation of ORS 475.005 to 475.285 and 475.840 to 475.980.
(2) Frequenting a place where controlled substances are used is a Class A misdemeanor.
(3) Notwithstanding subsection (2) of this section, if the conviction is for knowingly maintaining, frequenting or remaining at a place where less than one avoirdupois ounce of the dried leaves, stems, and flowers of the plant Cannabis family Moraceae is found at the time of the offense under this section, frequenting a place where controlled substances are used is a Class D violation.
(4) As used in this section, “frequents” means repeatedly or habitually visits, goes to or resorts to.
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November 7, 2009, 6:44 pm