AGO 10-447.

• Case Date: January 28, 2010
• Court: South Carolina

South Carolina Attorney General Opinion 2010. AGO 10-447. 10-447HENRY MCMASTER ATTORNEY GENERALJanuary 28, 2010Chiefs. W.White City of Union PubUc Safety Department 215 Thompson Boulevard Union, South Carolina 29379Dear Chief White: In a letter to this office you requested an opinion regarding the constitutionality of your city's ordinance concerning loitering. Such ordinance reads as follows: Sec. 16-52.1 Loitering-Definitions.

As used in section 16-52.1:

(a) Loitering shall remain remaining idle in essentially one location and shall include the concept of spending time idly to be dilatory; to linger; to stay; to delay; to stand around and shall also include the colloquial expression "hanging around."

(b) Public place shall mean any place to which the general public has access and a right to resort for business, entertainment, or other lawful purpose, but does not necessarily mean a place devoted solely to the uses of the public. It shall also include the front or immediate area of any store, shop, restaurant, tavern or other place of business and also public grounds, areas or parks. (Ord. of 4-15-86).

Sec. 16-52.2. Same-Police order to disperse; penalty.

(a) It shall be unlawftil for any person to loiter, loaf, wander, stand or remain idle either alone and/or in consort with others in a public place in such maimer so as to:

(1) Obstruct any public street, public highway, public sidewalk or any other public place or building by hindering or impeding or tending to hinder or impede the free and uninterrupted passage of vehicles, traffic or pedestrians.

(2) Commit in or upon any public street, public highway, public sidewalk or any other public place or building any act or thing which is an obstruction or interference to the free and uninterrupted use of property or with any business lawfully conducted by anyone in or upon or facing or fronting on any such public street, public highway, public sidewalk or any other public place or building, all of which prevents the free and uninterrupted ingress, egress, and regress, therein, thereon and thereto.

(b) When any person causes or commits any of the conditions enumerated in subsection (a) herein, a police officer or any law enforcement officer shall order that person to stop causing or committing such conditions and to move on or disperse. Any person who fails or refiises to obey such orders shall be guilty of a violation of section 16-52.2.

(c) Any person who violates any of the provisions of this section shall be subject to punishment as prescribed in section 1-7. Any such violation shall constitute a separate offense on each successive day continued. (Ord. of 4-15-86)

As stated in an opinion of this office dated January 7, 2008, this office recognizes that a municipal ordinance carries with it a presumption of validity. As stated in a prior opinion of this Office dated December 14, 2006,

... an ordinance is a legislative enactment and therefore, is presumed constitutional. Town of Scranton v. Willoughbv, 306 S.C. 421, 422, 412 S.E.2d 424, 425 (1991). Our Supreme Court "has held that a duly enacted ordinance is presumed constitutional; the party attacking the ordinance bears the burden of proving its unconstitutionality beyond a reasonable doubt. City of Beaufort v. Baker, 315 S.C. 146,153,432 S.E.2d 470,474 (1993). Moreover, "[w]hile this office may comment upon constitutional problems, it is solely within the province of the courts of this State to declare an act unconstitutional.

This office in prior opinions has dealt with the issue of the constitutionality of ordinances dealing with loitering. See: Ops. Atty. Gen. dated January 7, 2008; September 28, 2006; July 26, 2006; December 17, 2003. The July, 2006 opinion dealt with the decision of the United States Supreme Court in City of Chicago v. Morales, 527U.S. 41 (1999) which declared as unconstitutional a Chicago ordinance which was designed to deter gang congregation and loitering. That opinion noted that

[c]onstitutional attacks upon ordinances of the type described in your letter have been made with some frequency over the years. For example, a vagrancy ordinance 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 modem 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 '"fi-om 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 fi-eedom 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 fi-eedom of movement inside fi-ontiers 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

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