AGO 06-134.

• Case Date: July 26, 2006
• Court: South Carolina

South Carolina Attorney General Opinions 2006. AGO 06-134. OPINION NO. 06-134July 26, 2006The Honorable Henry B. Fishbume, Jr.The Honorable Jimmy S. Gallant, III The Honorable Robert M. Mitchell The Honorable James Lewis, Jr. Members, Charleston City Council Post Office Box 913 Charleston, South Carolina 29402 Dear Council Members: You are seeking an opinion regarding a proposed municipal ordinance. By way of background, you provide the following information:

[t]he problem involves the Eastside neighborhood in the City of Charleston which is plagued by crime, particularly crime related to the sale of illegal drugs. Groups of individuals regularly gather on street corners. They sell drugs and intimidate residents. There have been numerous incidents of violence in the neighborhood directly related to this activity including muggings, fights, shootings and murders.

The City has tried to address these problems with drug busts and neighborhood cleanup programs but the problems persist.

The undersigned members of City Council have had several discussions in City Council meetings and outside of them with the City legal staff to try to find a way to address the loitering or "hanging out" on street corners. We have been told that the City does not have a loitering ordinance and can not have one because constitutional law prohibits it.

We respectfully request that your office look into this problem and give us and the City attorney any guidance or opinions you feel appropriate.

Law / Analysis Constitutional attacks upon ordinances of the type described in your letter have been made with some frequency over the years. For cxamplc, a vagrancy ordinancc which employed language, characterized by the Untied States Supreme Court as "archaic," was struck down on vagueness grounds in Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). The Court concluded that the "Jacksonville ordinance makes criminal activities which by modern standards are normally innocent," such as "nightwalking." 405 U.S. at 163. Moreover, the Court found that the ordinance placed "unfettered discretion ... in the hands of the Jacksonville police." Id. at 169. The ordinance was thus struck down as unconstitutional. Subsequently, the Supreme Court addressed the constitutional validity of an anti-loitering statute in Kolander v. Lawson, 461 U.S. 352 (1983). There, the Court concluded that the statute, requiring persons who loiter or wander on the streets to provide "credible and reliable" identification, and to account for their presence when requested by a police officer under circumstances justifying a "stop" under Terry v. Ohio, 392 U.S. 1 (1968), was constitutionally infirm on vagueness grounds. The Supreme Court noted that the test for vagueness. rested upon two prongs - actual notice to citizens and the requirement that the law not encourage arbitrary enforcement. According -to the Court, however, "the more important aspect of the vagueness doctrine `is not actual notice, but the other principal element of the doctrine - the requirement that a legislature establish minimal guidelines to govern law enforcement."' Id. at 358. See also, Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965). With respect to what constituted "credible and reliable" identification, the Kolander Court found that "... the State fails to establish standards by which the officers may determine whether the suspect has complied with the subsequent identification requirement." Id. at 361. In the Court's mind, the statute "encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute." Id. In 1999, the Supreme Court again invalidated a loitering ordinance in City of Chicago v. Morales, 527 U.S. 41(1999). Once more, the Court focused upon the unfettered discretion bestowed upon law enforcement officers by the ordinance in question. In Morales, the Court reviewed an ordinance which required a police officer, upon observing a person whom he reasonably believed to be a criminal street gang member loitering in any public place with one or more persons, to order such persons to disperse. Failure to obey such order was deemed a criminal violation. More specifically, the ordinance was summarized by the Supreme Court as follows:

[f]irst, the police officer must reasonably believe that at least one of the two or more persons present in a "`public place"' is a "`criminal street gang membe[r]. "' Second, the persons must be "`loitering,"' which the ordinance defines as "remain[ing] in any one place with no apparent purpose." Third, the officer must then order "`all"' of the persons to disperse and remove themselves "`from the area."' Fourth, a person must disobey the officer's order. If any person, whether a gang member or not, disobeys the officer's order, that person is guilty of violating the ordinance ....

527 U.S. at 47. The Ordinance was attacked on a number of constitutional grounds. In the view of the Illinois Appellate Court, "the ordinance impaired the freedom of assembly of nongang members in violation of the First Amendment to the Federal Constitution and Article I of the Illinois Constitution, that it was unconstitutionally vague, that it improperly criminalized status rather than conduct, and that it jeopardized rights guaranteed under the Fourth Amendment." Id. At 50. In a plurality opinion, the United States Supreme Court concluded that "... like the Illinois courts [we] conclude that the ordinance is invalid on its face ... " The Court noted that two constitutional doctrines existed pursuant to which the ordinance could be attacked upon its face -overbreadth and vagueness. With respect to overbreadth, the Court noted that such doctrine "permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when `judged in relation to the statute's plainly legitimate sweep."' In terms of the question of vagueness, the Court recognized that "... even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests" Id. at 51. The Morales Court chose not to "rely on the overbreadth doctrine." Speech was not involved, concluded the Court. However, in this same regard, the Court also emphasized that "the freedom to loiter for innocent purposes is part of the `liberty' protected by the Due Process Clause of the Fourteenth Amendment." Remaining in a public place of one's choice is, noted the Court, as much a part of his liberty as the freedom of movement inside frontiers that `is a part of our heritage."' Id. at 53-54. Nevertheless, in the Court's view, there was no need to consider the facial constitutionality of the ordinance pursuant to the overbreadth doctrine because 'it is clear that the vagueness of this enactment makes a facial challenge appropriate." Id. at 55: The fact the ordinance was not one which simply regulated business behavior, not contained a scienter or mens rea requirement, yet was also one which infringed upon constitutionally protected rights, made it particularly susceptible to a vagueness challenge. Such a vagueness challenge, the Court...