(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.

Violation was punished as a low-level misdemeanor, so there were few opportunities to appeal.

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”?)

Oren: I’m all for drafting a law that effectively criminalizes drug dealers girl scouts when they harass passersby and I love to hear about the correct way a town could do so.

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

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.

wm13: I’m speaking somewhat hypothetically, of course, because there isn’t any drug trafficking in my neighborhood. The doormen wouldn’t allow it.

Unless the residences in your neighborhood are panopticons run by the doormen, I have some doubt about that.

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.

I’m speaking somewhat hypothetically, of course, because there isn’t any drug trafficking in my neighborhood.

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).

It would be infinitely more reasonable to take all the [anti-drug law enforcement] resources and focus them solely on high level individuals.

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.

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.

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

Good thing the Dallas Cowboys don’t play in Winston-Salem.

Nick

Nick

On a different note, why we don’t legalize prostitution so that we can regulate and clean it up is beyond me.

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

I follow your reasoning except for the “Maybe I’m too cynical” part…

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.

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

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.

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.

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.