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A Dream Denied:
The Criminalization of Homelessness in U.S. Cities

III. Challenges to Vagrancy, Loitering, and Curfew Laws

A. Federal Cases

City of Chicago v. Morales, 527 U.S. 41 (1999).
The city of Chicago challenged the Supreme Court of Illinois’ decision that a Gang Congregation Ordinance violated the due process clause of the Fourteenth Amendment of the U.S. Constitution for impermissible vagueness -- lack of notice of proscribed conduct and failure to govern law enforcement.  The ordinance prohibited criminal street gang members from loitering in a public place.  The ordinance allowed a police officer to order persons to disperse if the officer observed any person loitering that the officer reasonably believed to be a gang member. The Supreme Court affirmed the judgment of the Illinois Supreme Court and ruled the ordinance unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.  Specifically, the court ruled that the ordinance violated the requirement that a legislature establish guidelines to govern law enforcement.  Additionally, the ordinance failed to give the ordinary citizen adequate notice of what constituted the prohibited conduct – loitering.  The ordinance defined “loitering” as “to remain in any one place with no apparent purpose.”   The vagueness the Court found was not uncertainty as to the normal meaning of “loitering” but to the ordinance’s definition of that term.  The court reasoned that the ordinary person would find it difficult to state an “apparent purpose” for why they were standing in a public place with a group of people.   “Freedom to loiter for innocent purposes,” the court reiterated, is part of the liberty protected by the due process clause of the fourteenth amendment.  

Gaffney v. City of Allentown, 1997 U.S. Dist. LEXIS 14565 (D. Pa. 1997).
Plaintiffs challenged a juvenile curfew ordinance on due process and equal protection grounds.  The court applied strict scrutiny and found the ordinance unconstitutional.  The court held that the statute burdened a minor’s right to move freely and that the case did not present factors justifying differential treatment of minors that would allow the court to employ a lesser standard of review.  Although the parties agreed that the city had a compelling interest in passing the ordinance, i.e., the protection of minors from nighttime crime and the prevention of the same, it nevertheless failed because it was not narrowly tailored to advance that interest.  The statistical evidence the city presented to the court showed no correlation between the passage of the ordinance and the incidence of juvenile crime, and the city did not present evidence that comparatively more juveniles were victims of nighttime crime.

Hodgkins v. Peterson, 355 F.3d 1048 (7th Cir. 2004).
A parent and her minor children brought a class action to seek a preliminary injunction against the enforcement of Indiana’s juvenile curfew ordinance on First Amendment and due process grounds.   The district court maintained that a First Amendment exception was necessary in a juvenile curfew ordinance to ensure that it was not overly broad.  The plaintiffs argued that since a minor arrested under the ordinance could use the First Amendment only as an affirmative defense, the ordinance unduly chilled a minor’s First Amendment rights.  The district court found no evidence, however, that the threat of arrest actually chilled minors’ exercise of their First Amendment rights.  The court also found that the ordinance left ample alternative channels for minors’ communication.  The court went on to find that the right of a parent to allow her minor children to be in public during curfew hours was not a fundamental right, and accordingly applied intermediate scrutiny to the statute.  The ordinance survived intermediate scrutiny, because of its limited hours of operation and numerous exceptions.

The plaintiffs appealed, and the Seventh Circuit reversed.  While the court recognized that the curfew ordinance did not have a disproportionate impact on First Amendment rights, it did regulate the ability of minors to participate in a range of traditionally protected forms of speech and expression, including political rallies and various evening religious services.   Applying the “no more restrictive than necessary” standard, the court found that even with the First Amendment affirmative defense, whereby arrest is avoided based on the facts and circumstances in a police officer’s actual knowledge, the ordinance did not pass intermediate scrutiny because it violated minors’ free expression rights.

Hutchins v. District of Columbia, 188 F.3d 531 (D.C. Cir. 1999).
The district court granted summary judgment to plaintiff’s challenge of a juvenile curfew ordinance and found it unconstitutional on due process and vagueness grounds.  A divided panel of the D.C. Circuit initially affirmed, but upon a rehearing en banc, the ordinance was upheld.  The court refused to recognize a fundamental right for juveniles to be in a public place without adult supervision during curfew hours, nor was it willing to acknowledge a fundamental right for parents to allow their children to be in public places at night.  The court applied intermediate scrutiny to the ordinance and held that the District had adequate factual bases to support its passage of the ordinance.  In addition, the court found the ordinance enhanced parental authority as opposed to challenging it, owing to the ordinance’s exceptions for activities where parents were supervising their children.  The court dismissed plaintiffs’ vagueness and Fourth Amendment claims.

Johnson v. City of Cincinnati, 310 F.3d 484, 2002 WL 31119105 (6th Cir. 2002).
Two plaintiffs, including a homeless man, successfully challenged a Cincinnati ordinance creating “drug-exclusion zones.”  The ordinance prohibited an individual from entering a drug-exclusion zone for up to ninety days if the individual was arrested or taken into custody within such a zone for any number of enumerated drug offenses.  If the individual was thereafter convicted of the offense, the ordinance extended the exclusion to a year.  People who violated the ordinance could be prosecuted for criminal trespass.  The ordinance empowered the chief of police to grant variances to individuals who were bona fide residents of the zone, or whose occupation was located in the zone. The homeless plaintiff claimed that he had been prohibited from entering the drug-exclusion zone in question for four years for drug-related offenses and spent four hundred days in jail for violating the ordinance.  He regularly sought food, clothing, and shelter from organizations located in the zone, and his attorney’s office was located in the zone.

The district court held the ordinance unconstitutional on its face and as applied to the plaintiffs, finding that it violated their rights to free association, to travel within a state, and, as to the homeless plaintiff, to be free from double jeopardy. 

The Sixth Circuit affirmed.   The court held that the ordinance burdened the plaintiffs’ fundamental right to intrastate travel and the homeless plaintiff’s First Amendment associational right to see his attorney.  Applying strict scrutiny, the court found the ordinance was not narrowly tailored to advance the compelling state interest in enhancing the quality of life of its citizens.  The ordinance swept too broadly as it forbade innocent conduct within the zones.  In addition, it did not provide for any particularized finding that an individual was likely to engage in recidivist drug activity within the zones.  Nor had the city adequately demonstrated that there were no less restrictive alternatives to the ordinance. 

In discussing the homeless plaintiff’s interest in his relationship with his attorney, the court noted that since he was homeless he had “no readily available, realistic alternative to communicate with his attorney” other than meeting him at his office in the drug-exclusion zone.   His attorney could not visit him anywhere, and he had no phone available for a private conversation.  “An urban street corner simply does not provide a sufficient guarantee of privacy and a realistically effective guard against disclosure of privileged and confidential information to be considered a viable alternative. … [the plaintiff] is a homeless man, existing at the margin of our society, where he is uniquely vulnerable and in particular need of unobstructed access to legal representation and a buffer against the power of the State.”

Justin v. City of Los Angeles, No. CV-00-12352 LGB, 2000 U.S. Dist. LEXIS 17881 (C.D. Cal. Dec. 5, 2000).

  1. Plaintiffs, a group of homeless people living on the streets and in shelters of Los Angeles, filed suit alleging a violation of their First and Fourth Amendment rights and then filed for a temporary restraining order (TRO) in federal district court.  Plaintiffs were ultimately seeking only injunctive relief.  Plaintiffs sought the TRO to stop defendants from using two anti-loitering statutes, California Penal Code § 647(e) and Los Angeles Municipal Code § 41.18(a), to harass plaintiffs.  The court denied the TRO as to preventing the authorities from using the codes to ask homeless individuals to “move along.”  However, the court granted the TRO as to all other acts because plaintiffs established that they had shown a substantial likelihood of prevailing on the merits, would suffer irreparable harm if the TRO was not granted, and that the balance of equities tipped in their favor.  
  3. The case has now been settled and a permanent injunction is in force for 48 months with the possibility of a court-granted extension for up to an additional 48 months.  Defendants did not admit liability but were “enjoined as follows with respect to all members of the Class, when such Class members are in the Skid Row area described in plaintiffs’ complaint: (1) Officers will not conduct detentions or ‘Terry’ stops without reasonable suspicion.  However, officers may continue to engage in consensual encounters with persons in the Skid Row area, including members of the Class; (2) Officers will not demand identification upon threat of arrest or arrest individuals solely due to their failure to produce identification in circumstances where there is no reasonable suspicion to stop or probable cause to arrest; (3) Officers will not conduct searches without probable cause to do so, except by consent or for officer safety reasons as permitted by law; (4) Officers will not order individuals to move from their position on the sidewalk on the basis of loitering unless they are obstructing or unreasonably interfering with the free passage of pedestrians on the sidewalk or ‘loitering’ for a legally independent unlawful purpose as specified in California Penal Code section 647; (5) Defendants will not confiscate personal property that does not appear abandoned and destroy it without notice.  However, defendants may continue to clean streets and sidewalks, remove trash and debris from them, and immediately dispose of such trash and debris.  Where applicable, defendants will give notice in compliance with the temporary restraining order issued in Bennion v. City of Los Angeles (C637718).  Any personal property that does not appear intentionally abandoned collected by defendants will be retained for 90 days as provided by California Civil Code section 2080.2; (6) Officers will not cite individuals for violation of either Penal Code section 647(e) (loitering) or that portion of Los Angeles Municipal Code section 41.18 which makes it unlawful to “annoy or molest” a pedestrian on any sidewalk.  However, officers may cite for obstructing or unreasonably interfering with the free passage of pedestrians on the sidewalk.”

Kolender v. Lawson, 461 U.S. 352 (1983).
Plaintiff challenged the constitutionality of a California state statute that required persons who loiter or wander on the streets to provide “credible and reliable” identification and account for their presence when asked to do so by a police officer.   The Supreme Court found that the statute failed to adequately explain what a suspect must do to satisfy its requirements, and thus vested complete discretion in the hands of the police officers enforcing it, encouraging arbitrary enforcement.  The court held that the statute was unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment.
Leal v. Town of Cicero, 2000 WL 343232 (N.D. Ill. 2000).
The plaintiff was arrested for violating a Cicero ordinance prohibiting loitering on a street corner after a police officer has made a request that the individual move on.  The officer had observed the plaintiff doing no more than remaining in a certain area for a short period of time.  The plaintiff challenged the ordinance on vagueness grounds, and the court agreed that the law was unconstitutionally vague.  The fact that the ordinance made the police officer’s request to move on the basis for any potential arrest, as opposed to the loitering per se, did not save it from constitutional scrutiny.  As in City of Chicago v. Morales, 527 U.S. 41 (1999), if the loitering is harmless or justified, then the dispersal order itself is an unjustified impairment of liberty.  Additionally, the ordinance invited uneven police enforcement, as it contained no guidelines for the exercise of official discretion. 

NAACP Anne Arundel County Branch v. City of Annapolis, 133 F.Supp.2d 795 (D. Md. 2001).
The NAACP brought a facial challenge on federal and state constitutional grounds to an Annapolis ordinance prohibiting loitering within certain posted drug-loitering free zones.  The ordinance made it a misdemeanor for a person observed, inter alia, “making hand signals associated with drug related activity” or “engaging in a pattern of any other conduct normally associated by law enforcement with the illegal distribution, purchase or possession of drugs” within a designated drug-loitering free zone to disobey the order of a police officer to move on.   After finding that both the individual members of the NAACP and the NAACP itself had standing to bring the lawsuit, the district court ruled that the ordinance was unconstitutionally vague and overbroad.  The court held that the plain language of the ordinance contained no mens rea requirement, and that, as it was interpreting a state law, the court had no authority to read a specific intent requirement into the ordinance.  Without the narrowing device of the mens rea requirement, the ordinance was void for vagueness since it failed to provide adequate warning to the ordinary citizen to enable her to conform her conduct to the law and it vested unbridled discretion in police officers enforcing the ordinance.  The ordinance was also unconstitutionally overbroad since without the specific intent requirement it reached a host of activities ordinarily protected by the constitution, such as selling lawful goods, communicating to motorists, and soliciting contributions.  

Nunez by Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997).
Minors and parents brought an appeal challenging constitutionality of San Diego’s juvenile curfew ordinance.  The Court of Appeals for the Ninth Circuit held that the statute was unconstitutionally vague, that it violated the First and Fourteenth Amendments, and that it violated the right of parents to rear their children.  The phrase “loiter, idle, wander, stroll or play” did not provide reasonable notice of what conduct was illegal and allowed the police excessive discretion in stopping and arresting juveniles.   While the court found that the city had a compelling interest in protecting children and preventing crime, the city failed to provide exceptions in the statute allowing for the rights of free movement and expression, and thus struck down the statute as not narrowly tailored to meet the city’s interest.

Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).
Eight individuals convicted under Jacksonville’s vagrancy ordinance challenged the constitutionality of the law.  The Supreme Court overturned the decision of the Florida Circuit Court and found that the ordinance was void for vagueness under the Due Process Clause of the Fourteenth Amendment on the ground that the ordinance “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute” and “encourages arbitrary and erratic arrests and convictions.”

Qutb v. Strauss, 11 F.3d 488 (5th Cir. 1993), cert. denied, 511 U.S. 1127 (1994).
The district court permanently enjoined the operation of a juvenile curfew ordinance on grounds that it violated the First Amendment and the equal protection clause.  The Fifth Circuit reversed.  The court assumed that the ordinance burdened a fundamental right of minors to travel, and applied strict scrutiny.  The statute survived because the city provided sufficient data to establish that the ordinance was narrowly tailored and the defenses in the ordinance ensured that it employed the least restrictive means available.  The court also relied on the defenses in rejecting the parental plaintiffs’ argument that it burdened their fundamental right to make decisions concerning their children.

Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2003).
Plaintiffs sought a preliminary injunction against the enforcement of Vernon, Connecticut’s juvenile curfew ordinance on First Amendment, Fourth Amendment, equal protection, vagueness, due process, and state constitutional grounds.  The district court denied the injunction.   The court found that the ordinance’s exception for First Amendment activities saved it from an overbreadth challenge.  The ordinance did not authorize unconstitutional searches and seizures.  In analyzing the equal protection claim, the court applied intermediate scrutiny to the statute and found that the history and perception of crime in Vernon and some evidence that the ordinance was effective indicated that it was substantially related to its goals. Further, the ordinance adequately described the conduct it prohibited, and provided police with reasonable guidelines for its enforcement.  Finally, since the ordinance contained an exception for minors accompanied by their parents, it did not unduly burden parents’ liberty interest in raising their children.  The court certified the state constitutional claims to the Connecticut Supreme Court.  

Plaintiffs appealed, and the Second Circuit reversed, applying intermediate scrutiny to hold that the city ordinance infringes on minors’ equal protection rights.  The court noted that although the curfew ordinance sought to reduce night-time juvenile crime and victimization, the city did not consider night-time aspects of the ordinance in its drafting process.  Furthermore, the ordinance’s age limit is not targeted at those who were likely to cause trouble or to be victimized.  Indeed, one of the city’s expert witnesses stated that “the adoption of the curfew itself probably could be considered a knee jerk reaction.” 

Richard v. Nevada, No. CV-S-90-51 (D. Nev. Apr. 25, 1991).
Four Franciscan clergymen and four homeless individuals challenged Nevada’s statute prohibiting criminal loitering and vagrancy and related provisions of the Las Vegas Municipal Code alleging that they were unconstitutionally vague and/or overbroad.  The U.S. District Court for the District of Nevada held that the section of the Nevada statute defining vagrancy was unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment.  However, the court abstained from making a decision on the other challenged section of the Nevada statute or sections of the Las Vegas Municipal Code.   The court certified those matters to the Nevada Supreme Court, which subsequently held that both provisions were unconstitutionally vague.

Schleifer v. City of Charlottesville, 159 F.3d 843 (4th Cir. 1998), cert. denied, 1999 U.S. LEXIS 1908 (1999).
Plaintiffs challenged a juvenile curfew ordinance on due process and equal protection grounds.  The district court upheld the ordinance, and the Fourth Circuit affirmed.  Recognizing the greater state latitude in regulating the conduct of minors, the court applied intermediate scrutiny to the statute.  The ordinance sought to advance compelling state interests, i.e., the reduction of juvenile crime, the protection of juveniles from crime, and the strengthening of parental responsibility for children.  The court found that the ordinance was substantially related to these interests, as the city had before it adequate information that the ordinance would create a safer community and protect juveniles from crime.  Further, the court found the ordinance narrow enough to survive strict scrutiny, were it to be applied.  Nor did the ordinance burden parents’ privacy interests in raising their children.  The Fourth Circuit also rejected the plaintiffs’ vagueness claim, citing the ordinance’s exceptions for First Amendment activities.

B. State Court Cases

City of Salida v. Edelstein, Case No. 97CR62 (Colo. Dist. Ct. 1998).
Defendants were arrested for violating a Salida ordinance prohibiting anyone from loitering in one place for more than five minutes after 11:00 PM at night.  One defendant had been speaking with friends on the sidewalk outside his home, while another defendant had been observing a police officer issue loitering citations to other individuals.  The defendants challenged the ordinance on First Amendment, due process, and vagueness grounds.  The municipal court found the ordinance unconstitutional, and the district court affirmed.  The court held that the ordinance interfered with citizens’ fundamental rights to stand and walk about in public places.  The ordinance was not narrowly drawn to regulate that right, and the city failed to convince the court that any plausible safety concerns existed to justify the ordinance.  Additionally, the court found the ordinance void for vagueness, since it failed to provide law enforcement with proper standards to prevent its arbitrary and discriminatory enforcement.      

Commonwealth v. Asamoah, 2002 Pa. Super. LEXIS 2896 (Pa. Super. Ct. 2002).
The defendant was convicted for loitering pursuant to a York, Pennsylvania ordinance.  Police observed Asamoah near a man they believed to be carrying drugs, although Asamoah himself did no more than stand on the sidewalk with money in one of his hands.  Police arrested him for violating that part of the ordinance forbidding “acts that demonstrate an intent or desire to enter into a drug transaction.”   The Superior Court overturned his conviction, finding the ordinance was unconstitutionally vague and overbroad.  The ordinance’s language provided inadequate guidance as to what constituted illegal behavior and left police free to enforce it in an ad hoc and subjective manner.  The ordinance also proscribed and punished protected activities such as “hanging around” and “sauntering.”    

Johnson v. Athens - Clarke County, 529 S.E.2d 613 (Ga. 2000).
Plaintiff was arrested for violating an Athens municipal ordinance prohibiting loitering or prowling.  A policeman had observed Johnson at a particular intersection four times over a two-day period.  At trial, the policeman testified that the location where he arrested Johnson was a known drug area, although the state presented no evidence of drug activity.  The Georgia Supreme Court found the ordinance void for vagueness, since there was nothing in the ordinance’s language that would put an innocent person on notice that particular behavior was forbidden.  There was no way a person of average intelligence could be aware of what locations were known drug areas and what innocent-seeming conduct could seem to be drug-related in the opinion of a police officer.  The ordinance also failed scrutiny because it did not provide adequate safeguards against arbitrary or discriminatory enforcement.

State v. Burnett, 755 N.E.2d 857 (Ohio 2001) .
The defendant successfully challenged a Cincinnati ordinance creating “drug-exclusion zones.”   The defendant was arrested for one of the designated drug offenses and given a ninety-day exclusion notice from the Over-the-Rhine exclusion zone, which the city extended to one year.  He was subsequently arrested for criminal trespass for being present in the zone.

The Ohio Supreme Court denied the defendant’s freedom of association claim, but found that the ordinance impermissibly burdened his fundamental right to travel and that it violated the Ohio state constitution.  As to the first amendment claim, the court found that the ordinance did not, on its face, interfere with the defendant’s fundamental, personal relationships.  However, the court went on to hold that the due process clause of the federal constitution included the fundamental right to intrastate travel.  Under the required compelling interest analysis, the ordinance failed because it was not narrowly tailored to serve Ohio’s compelling interest in protecting the health, safety, and welfare of its citizens. The ordinance reached a host of innocent conduct, including visiting an attorney, attending church, and receiving emergency medical care.  Finally, the court found the ordinance violated the Ohio state constitutional provision forbidding municipalities from adopting laws that conflicted with the “general laws” because it added a criminal penalty for a drug offense that was not imposed by a court or authorized by a statute.   

527 U.S. at 51 n. 14.

Id. at 56.

Id. at 53.

The district court had struck down a previous version of the Indianapolis juvenile curfew ordinance on overbreadth grounds because it lacked an exception for First Amendment activities.  See Hodgkins v. Peterson, 2000 U.S. Dist. LEXIS 11801 (S.D. Ind. 2000), amended by2000 U.S. Dist. LEXIS 11758 (S.D. Ind. 2000).  Subsequently, the plaintiff challenged an amended version of the ordinance on grounds that it violated her liberty interest in raising her children without undue government interference.  The court denied a preliminary injunction on those grounds. See Hodgkins v. Peterson, 2000 U.S. Dist. LEXIS 20850 (S. D. Ind. 2000).

The Sixth Circuit agreed to hear the appeal even though the Ohio Supreme Court had already found that the ordinance violated both the state and federal constitutions.  See State v. Burnett, 93 Ohio St.3d 419 (2001) infra.

2002 WL 31119105 at *18.


Justin v. City of Los Angeles, No. CV 00-12352 LGB (AIJx) (C.D. Cal. Nov. 5, 2001).

461 U.S. at 355.

133 F.Supp.2d at 797-98.

114 F.3d at 942.

Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972)(citations omitted).

48 F. Supp. 2d 176 (D. Conn. 1999).

The Connecticut Supreme Court upheld the ordinance against each of the plaintiffs’ state constitutional claims. SeeRamos v. Town of Vernon, 254 Conn. 799 (2000).

Richard v. Nevada, No. CV-S-90-51 (Apr. 25, 1991).

State v. Richard, 108 Nev. 626, 836  P.2d 622 (Nev. 1992).

2002 Pa. Super. LEXIS 2896 at **10.

Id. at **11.

See Johnson v. City of Cincinnati, -- F.3d --, 2002 WL 31119105 (6th Cir. 2002), supra.