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Wednesday, April 16, 2014

Loitering is in the Air

As the weather grows warmer, municipalities can expect to see an age-old problem re-emerge - loitering. Concerns about crime, public order, and property rights have prompted municipalities throughout the country to pass ordinances taking action against loitering. Many of these ordinances, however, have not passed constitutional muster, as courts have found them to violate constitutional rights. An ordinance passed in Winter Park, Florida, met such a fate. 

The Winter Park City Council passed an ordinance in 2012 to address picketing targeted specifically against an individual residing in a single family home. The City noted that this targeted picketing had become an increasing problem. This ordinance allowed residents to post a “no loitering” sign on their property that prevented anyone from remaining in a “public area,” which included a park, sidewalk, street, or public right-of-way, within fifty feet of that residence. The ordinance also gave property owners the right to call the police to order people to leave the fifty foot zone around their property.

In Bell v. City of Winter Park, the 11th Circuit Court of Appeals found that this part of the ordinance violated the First Amendment. The court explained that citizens have a right to free speech in “traditional public fora,” public spaces like parks, streets, sidewalks, etc. While this speech can be regulated by content-neutral restrictions that pertain to the time, place, and manner that speech may occur, these laws must be applied equally to each person. Speech cannot be arbitrarily regulated for no articulated purpose. The court noted that the ordinance permitted private citizens to control the speech of other private citizens by calling the police to disperse anyone “loitering” on public property within fifty feet of their residence. No justification needed to be provided for this dispersal. In fact, the ordinance did not even define how long a person needed to remain in one place to be considered loitering. “Five minutes? One minute?” the court asked. “Citizens are left to wonder.” 

The court did uphold a second part of the ordinance that banned picketing or protesting within fifty feet of any residence, and made it illegal to picket or protest in any public space if this activity interfered with the rights of others to travel safely in these areas. The court found it served a significant government interest, the right of a property owner to be secure in his residence, and was narrowly tailored to achieve that interest. The court pointed to a Supreme Court decision that upheld an ordinance prohibiting picketing in front of someone’s residence because the government has a significant interest in “protecting the well-being, tranquility, and privacy of a home.” The government is allowed to prohibit picketing if it is not targeted at disseminating a message, but instead harasses and intrudes upon a particular individual’s rights. The ordinance must not discriminate against a particular viewpoint, and must leave open alternative channels of communication.  Here, picketers had alternative means to disseminate their message; they could do so standing fifty-one feet from a property. The ordinance did not favor a particular point-of-view, and it applied equally to everyone. Its primary purpose was to protect a resident from harassment, a significant interest worth protecting.  Therefore, at least that portion of the ordinance was constitutional.

Municipalities can take away a few lessons from Winter Park’s experience. First, while municipalities must tread lightly when passing anti-loitering ordinances, they can do so if they have a good reason for the ordinance. Ordinances seeking to uphold property rights and public order are purposes favored by courts. Second, anti-loitering ordinances must not be enforced arbitrarily. In Winter Park, the court took exception to the fact that private citizens could choose when to enforce the anti-loitering ordinance without providing any justification for doing so. Third, the terms of an anti-loitering ordinance must be clearly defined. The vague definition of “loitering” made Winter Park’s ordinance unconstitutionally broad. Any anti-loitering ordinance must define all potentially ambiguous terms. 

As the weather warms up and people return to the streets, municipalities need not fear loiterers. With clear goals and a well-drafted anti-loitering ordinance, a municipality can still keep control of its streets.

Post Authored by Matt DiCianni, Ancel Glink


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