What Constitutes Loitering in New York City?
Reading through New York’s criminal code, a clear definition of loitering is difficult to find. The law states that loitering can be "having no apparent purpose" while in a public place. In practice, this means that the police must have a reasonable suspicion that any persons in a public place are loitering. This type of vague term leaves a considerable amount of room for discretion . However, loitering can still be concealed in a number of different behaviors and circumstances, including:
In a real sense, this definition can mean any number of things. For instance, this law means that something like inviting a person over to have a chat could fall under the definition of "loitering." While such a situation may not involve any criminal activity, it technically falls into this definition of loitering in NYC.
A Brief History of Loitering Laws
For much of the 20th century, loitering laws were a prominent tool in New York City’s efforts to govern the city’s behavior. Currently enshrined in Administrative Code § 10-202, the law allows police to arrest individuals found blocking Broadway or other busy streets without giving any reason as to why their mere presence violates the law. The law generated significant controversy in the early 1970s when police targeted loiterers associated with the LGBTQ community in and around the Stonewall neighborhood.
Loitering laws Brooklyn criminal lawyers know were part of what was perceived to be a "tough-on-crime" agenda, including New York’s infamous "Stop-and-Frisk" policy. The goal was to effectively "clean up" the city and restore public order. In a 1962 case involving the Rosenberg Library in Brooklyn, Justice Harry Goodman suggested that anti-loitering laws should be based on the United States Supreme Court’s Perez decision, which upheld the Florida loitering law:
"I think that the law should be that people who are congregating for the purpose of committing a crime, or allowing themselves to be in the position where they may be committing a crime, should not be allowed to congregate."
As a state law, this rule prohibited "loitering about any building or enclosure used in connection with the transaction of business by the state or subdivision or agency thereof." It was applied hand in hand with a "disorderly conduct" statute "which forbids ‘conduct which creates a public annoyance or alarm.’"
In effect, these laws gave police officers almost unfettered discretion to arrest individuals about whom they had suspicions. These laws persisted throughout the second half of the 20th century, but were eventually challenged in the courts. Subsequent rulings called into question the practicality, constitutionality and equity of such broad anti-loitering laws.
As one New York judge put it in 1981,
"Where a section, although perhaps seemingly innocuous on its face, has acquired an overbreadth through being used in a fashion which seems driven by caprice, or worse, (i.e., personal prejudice), it seems self evident that the section has become unconstitutionally vague…"
Penalties Associated with Loitering Offenses
The penalties for charges under these laws range from fines to jail time, although the legal repercussions vary depending upon whether you’re charged with a violation or a crime. At the least severe end of the spectrum for a violation, the fine can be up to $1,000 and/or you could be given up to 90 days in jail. For a misdemeanor charge, however, the penalty can range from a fine of up to $250 to up to 15 days in jail. If you are convicted of a felony, you could be facing a fine of up to $5,000 and up to 2 years in prison. As is true elsewhere, a conviction of any kind can be more severe if you have any prior criminal convictions on your record. Sentencing after a conviction also depends in large measure upon the severity of the crime for which you are being sentenced, of course.
Even if you are not convicted of a crime, there are several other penalties that could apply to a loitering charge. If you simply plead guilty or are even found guilty, your driver’s license could be suspended, which would have implications for your ability to get to work or school. The severity of the sentence could also affect your ability to obtain housing if you are renting or buying a home.
A charge of loitering in New York City could potentially have many ramifications that could affect you for years to come based on your conviction. There are varying degrees of loitering charges in New York City, and those charges do not have to exist separately. Loitering charges could potentially be stacked, or combined, with other crimes and charges, including drug and sex offenses. In short, loitering charges can have a serious impact upon your quality of life, and it’s essential that you have an experienced and skilled New York loitering defense lawyer on your side.
How to Defend Yourself Against Loitering Accusations
In defending against a loitering charge, several legal defenses can be employed, including the argument that the defendant was not in a loitering posture. For example, in People v. Cahill (1985), the Court of Appeals held that the defendant was not standing around when police observed him on a street corner in New York City. The defendant was not merely waiting for a bus or cab (or simply passing through) but rather was looking in windows and into parked cars. This behavior, the court said, gave police cause to stop the defendant for questioning.
In another New York case, People v. Mejia (1989), the court stated that it is permissible to look at what someone is doing in order to see whether something is going on that would permit law enforcement to stop a person and question that person. Police may engage in surveillance of a specific area to determine if there is any criminal activity in that area. But, it cannot be said that the presence of persons on street corners, at intersections, and in other pedestrian areas, standing there doing nothing, is in itself suspicious criminal activity. Mere presence standing around on street corners, at intersections, in playgrounds, in parks, and in other similarly public places is not enough for police to stop and question people, although if police are able to establish a "pattern of behavior involving a person’s prior loitering" on a street corner for drug sales or other illegal activity, police could lawfully detain such a person suspected of being involved in illegal activity. See, People v. Reyes (1993); People v. Berrios (2002). In Reyes, the court noted that area residents had complained about loitering drug dealers, and police had observed physical observations corroborating the residents’ citizens’ complaints . Specifically, the court mentioned that the defendant had been seen "micro-handling" drugs, indicating that he was actually selling drugs on the street. Also see, People v. McDermott (1988).
In a third New York case, People v. Hough (1995), the court stated that a defendant cannot be charged with loitering in the first degree if a police officer fails to issue an appearance ticket at the time loitering is alleged to have been taking place. Even though the defendant did not receive a ticket, the court nonetheless found him guilty of loitering in the second degree as a person who was just waiting to buy drugs, and later raised the level of his loitering to that of first degree loitering upon his arrest later that day. The court concluded that, because the defendant had been seen earlier that day "huddling suspiciously" with other similarly "suspicious" individuals, the defendant had ample opportunity to receive a ticket before his later arrest. The defendant’s later arrest constituted his first crime.
In Wachala v. New York (2001), the Supreme Court in Albany held that an arrest without probable cause is not a due process violation unless a "police factor" caused plaintiff’s arrest. But in this case, the court went on to state if a plaintiff is asserting a state constitutional claim, then the state’s Constitution of 1777 (art I, sec 4) is the controlling authority. Similar to this is the finding in Clay v. Roper (2006), where the court determined that a former employee of the department of human services was subjected to a four-day suspension without due process in violation of due process as guaranteed by the state and federal Constitution and as codified in the Civil Service Law.
How the Loitering Laws Affect New York Communities
The social implications of loitering laws continue to evolve as societal issues surrounding public safety and homelessness are addressed at the legislative level. In New York City, neighborhoods that have been most affected by loitering legislation include poor and rehabilitating neighborhoods that have been plagued by violence and shootings. Supporters argue that loitering laws in these areas help to pave the way for economic revitalization activities while detractors claim that loitering laws are part and parcel of a larger agenda to gentrify these impoverished communities.
Prior to the repeal of the 2014 loitering law, comprised largely of individuals experiencing homelessness, individuals under the influence of drugs or alcohol, and sex workers engaged in open-air prostitution, were particularly impacted by the law. No longer charged with the crime of loitering for the purpose of engaging or advancing prostitution, many individuals remain at risk of arrest and prosecution for disorderly conduct, a charge that allows law enforcement officers to remove alleged "loiterers" from the area without criminal charges being filed against them.
Recent Amendments and Latest Debates
In 2011, the Court of Appeals found the New York statute on loitering for the purpose of engaging in a prostitution offense unconstitutional. It cited a lack of definition and noticed lack of enforcement in accord with its "inherent vagueness," as well as a lack of knowledge on the subject. What is defined in law as a "prostitution offense" is essentially an offense-bill of indictment against selling sex for money.
After that, loitering itself as a concept became a point of contention. Some lawmakers like New York State Senator Gustavo Rivera felt that the statute on New York loitering needed an overhaul so it could be used to jail sex workers and prosecutors like District Attorney Cy Vance were keen on enforcement. Civil liberties groups like ACLU felt the opposite; that it was being overly enforced on the wrong kinds of people and condemned its lack of due process and over-application. The statute has since been rewritten and distinguishing factors like age have been added to the offense-bill of indictment.
In 2017, New York City Council passed laws that repealed the "unconstitutional provision." However , there are still other statutes on "loitering for the purpose of engaging in a drug-related trade or criminal sale of a firearm" that were not repealed. One, New York’s Vehicle and Traffic Law 1202-A prohibits standing or stopping a vehicle on any street outside the theater district between 6 P.M. and 4 A.M. A driver who allows such action can be fined no less than $50.
Whether this is a judge’s mandate, a community-oriented policy or loitering, inactionable bans and reactive ordinances still work as a deterrent for loitering where evasion is inevitable. Still, some courts uphold the idea that license plates and monitoring of them are too much as a target and tip-off to the violation of loitering. In some areas of New York City where drug problems have arisen, certain injunctions allow for more police involvement. Some also feel that loiterer "sweeps" – an action by law enforcement wherein a cluster of people are kicked out of an area on suspicion of an act that encourages or promotes crime – are too much. In conclusion, NYC loitering laws are borderline subjective, and there are some current ongoing debates about how effective they really are.