AGO 06-176.

• Case Date: September 28, 2006
• Court: South Carolina

South Carolina Attorney General Opinions 2006. AGO 06-176. OPINION NO. 06-176September 28, 2006The Honorable Henry B. Fishburne, 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 have asked that we follow up with respect to our Opinion issued to you, dated July 26, 2006 regarding the constitutional problems encountered by a loitering ordinance. In that Opinion, we examined in detail the United States Supreme Court decision of City of Chicago v. Morales, 527 U.S. 41 (1999) which struck down as facially unconstitutional an Ordinance of the City of Chicago designed to deter gang congregation and loitering. The various opinions constituting the Morales majority found that the Ordinance in question - which allowed the police to arrest any group of two or more people who remained in a public place "with no apparent purpose" if the police "reasonably believe[d]" the group included a gang member and if the loiterers failed to disperse - was constitutionally infirm. See, Strosnider, "Anti-Gang Ordinances after City of Chicago v. Morales: The Intersection of Race, Vagueness Doctrine, and Equal Protection In The Criminal Law," 39 Am. Crim. L. Rev. 101 (Winter, 2002). The principal basis for the Morales majority's conclusion of facial unconstitutionality was the unfettered discretion provided the police to determine whether the Ordinance had been violated. In the Supreme Court's view, the Ordinance "applies to everyone in the city who may remain in one place with one suspected gang member as long as their purpose is not apparent to an officer observing them." 527 U.S. at 62. The constitutional infirmity of the ordinance in question was that it did not "... provide sufficiently specific limits on the enforcement discretion of the police `to meet constitutional standards for definiteness and clarity."' In other words, the ordinance "affords too much discretion to the police and too little notice to citizens who wish to use the public streets." Id. at 64. In her concurring Opinion, Justice O'Connor offered suggestions as to how a municipal ordinance aimed at gang congregation might survive constitutional scrutiny. If the ordinance in question "applied only to persons reasonably believed to be gang members ....," such would be significant, according to Justice O'Connor. In addition, Justice O'Connor suggested that a constitutional definition of "loiter," one which employed a requirement of scienter or "harmful purpose" could be enacted along the following lines: "`to remain in any one place with no apparent purpose other than to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities." Id. at 68. Likewise, Justice Breyer, in his concurring opinion, compared the Chicago ordinance to one which might pass constitutional muster, quoting from the Court's earlier opinion in Coates v. Cincinnati, 402 U.S. 611, 614 (1971) as follows:

[t]he city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults or engaging in countless other forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited ....

527 U.S. at 72. Further, Judge Raggi, in his concurrence in the judgment in United States v. Rybicki, 354 F.3d 124 (2d Cir. 2003) commented concerning the various majority opinions in Morales as follows:

[i]dentifying "majority" views among the four opinions of the six justices who ruled the Chicago ordinance facially invalid is sometimes a difficult task. I agree that the threat to innocent conduct - whether or not specifically protected by the Constitution - was a critical issue in Morales, but I understand this concern to be inextricably linked to the law's failure to require proof of harmful intent. Indeed, the six justices in the Morales "majority" joined in concluding that the vagueness challenge in that case would have failed if the Chicago ordinance had been limited "to loitering that had an apparently harmful purpose." City of Chicago Chicago v. Morales, 527 U.S. at 62,119 S.Ct. 1849 (Stevens, J. writing for the Court in part V); see also id. at 67, 119 S.Ct. 1849 (O'Connor, J., concurring in part and concurring in the judgment) (emphasizing that "the Court properly and expressly distinguishes the ordinance from laws that require loiterers to have a `harmful purpose' ") . ... Their conclusion accords with the established "doctrine that a scienter argument may save a statute which might otherwise have to be condemned for vagueness." United States v. Curcio, 712 F.2d 1532, 1543 (2d Cir.1983) (Friendly, J.); cf. Colautti v. Franklin, 439 U.S. 379, 395, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (and cases cited therein) (recognizing that "the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea ").

In Morales, Justice O'Connor offered examples of how the loitering ordinance could be construed to include an intent requirement, thereby eliminating vagueness concerns. See City of Chicago v. Morales, 527 U.S. at 68,119 S.Ct. 1849 (O'Connor, J., concurring in part and concurring in the judgment) ("The term `loiter' might possibly be construed in a more limited fashion to mean `to remain in any one place with no apparent purpose other than to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities.' "). The difficulty, as the six justices recognized, was that the Illinois Supreme Court had expressly declined to limit the statute in this way, see id. at 50-51, 119 S.Ct. 1849 (Stevens, J., writing for the Court in part II), and the United States Supreme Court was bound by that interpretation of state law, see id. at 61, 119 S.Ct. 1849 (Stevens, J., writing for the Court at part V); id. at 68, 119 S.Ct. 1849 (OConnor, J., concurring in part and concurring in the judgment) (questioning state court interpretation of ordinance while recognizing its binding effect); see also id. at 69, 119 S.Ct. 1849 (Kennedy, J., concurring in part and concurring in the judgment); id. at 73, 119 S.Ct. 1849 (Breyer, J., concurring in part and concurring in the judgment). Because the Supreme Court was thus powerless to construe the ordinance more narrowly as applied to any case, a majority concluded that it was obliged to declare the law unconstitutionally vague in all applications. See

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