Aarian Marshall is a transportation reporter at WIRED and former CityLab contributor. She lives in San Francisco.
The law protects your right to loiter, but the line between "hanging out" and "committing a crime" is blurry.
I spent most of my 13th year of life doing but a few things: hating myself, wearing the same light-pink baseball tee every other day, and loitering. On the mean streets of Brooklyn, we loitered everywhere—in nearby Prospect Park, on the stoops of grand brownstones that did not belong to us, in grease-soaked pizza joints. School had teachers, home had parents, but the streets were lawless.
In fact, a large number of towns and cities have laws and ordinances on the books preventing teenagers (and others) from loitering under certain conditions. “The facts are so local that it’s extremely difficult to generalize about loitering laws,” says Lawrence Rosenthal, who teaches constitutional law at the Fowler School of Law and who has argued loitering cases before the Supreme Court.
But as a harmless-enough loiterer, there are steps you can take to make sure you’re hanging out inside the bounds of the law. Here’s a handy list:
Know that you have a right to loiter
Loitering is protected, first and foremost, by the 14th Amendment. The courts have generally recognized that the right to due process includes the liberty to “remove from one place to another according to inclination,” in the words of a 1900 decision. The right to loiter has also faced two substantial recent challenges. In 1972, Margaret Papachristou challenged a vagrancy ordinance in Jacksonville, Florida, on the grounds that it was too vague; she won. The court found the ordinance encouraged arbitrary and erratic arrests, placing “almost unfettered discretion in the hands of the police.”
Twenty-five years later, the Chicago v. Morales case challenged a 1990 city ordinance banning gang members from loitering. Though the ordinance had support from some members of Chicago's minority communities, the defendant, with backing from the ACLU, won. "[T]he vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of 'loitering,'" then Justice John Paul Stevens wrote in his majority opinion. (In the words of another Supreme Court justice, you know it when you see it). "[B]ut rather, [it is] about what loitering is covered by the ordinance." If a reasonable person is unable to determine when she is breaking the law—do I look like I’m idling without apparent purpose right now? How about now?—then that law, the court decided, cannot be enforced.
Put more simply, it’s been affirmed again and again that you have the right to “stroll around from place to place without lawful purpose or object,” in the words of the Jacksonville ordinance invalidated by the court.
Read the signs
Often, private homes, institutions, or businesses will post signs stating their preference that you not hang around. These places don't always have the right to enforce this. But posted signs are a good test if you’re hoping to avoid confrontation with the police. “If there are signs up, you’re a risk,” Rosenthal says.
Don’t break the law
While loitering itself is generally A-OK, a number of towns and cities have “loitering plus” laws. These ordinances are “aimed to deal with very specific kinds of behavior that are deemed to be part of criminal activity—not just hanging out in public,” says Michael Scott, the director of the Center for Problem-Oriented Policing and a former Lauderhill, Florida, chief of police. Police don’t have an objection to loitering on its own, Scott says. But when that loafing is paired with “certain types of disruptive behavior”—intimidating passersby, panhandling, sexually harassing people, drug dealing or use, prostitution, obstructing a public way—there is a chance you’re breaking the law.
Don’t be intimidating, loud or obnoxious
This gets tricky, because, as Scott points out, it’s not always easy to gauge how intimidating you are to other people. But to guarantee that you’ll stay clear of the police, you might try avoiding yelling and cursing while loitering. That sort of behavior strays into “disorderly conduct” territory, and that’s an arrestable offense.
Of course, being intimidating, loud, or obnoxious is sometimes the point of loitering. You’re 15, you’re wandering the streets with a pack of friends, and you’ve claimed this pizza place as your own. “It’s a little show of defiance, a little public show,” says Scott. And that’s when good police work comes in. “That kind of stuff, you’re much better off if the police officer tries to work it out in a friendly way,” he says. “The police officer can say, ‘Hey, I don’t want to come harass you every day. You've got a right to hang out—work with me.’”
Be where people expect you to be
There are a number of places where loitering is expected—even encouraged. The most obvious places are public parks or squares, where urban designers often install features—benches, tables, water fountains—intended to encourage people to hang. But there are also private businesses that want your money and your time. In shopping malls, mall managers sometimes purposefully locate food courts or video arcades away from entrances, so that other mall-goers don’t have to pass by crowds of teenagers (and other loiterers) as they go about their shopping business. Fusty Chinese food and pizza joints often hinge their business models on crowds of people with a little pocket change and nowhere to go.
Police forces have also been known to work out loitering arrangements with repeat offenders. In Joliet, Illinois, police officers forged and agreement between a band of noisy teenagers and a local stadium owner, who agreed to let the kids congregate in a section of the parking lot. “Many police officers negotiate informal agreements with youth—for example, exchanging a degree of tolerance of rowdy behavior for keeping noise and litter under control,” Scott wrote in a 2001 handbook for policing “disorderly youth in public places.”
Don’t hang out on a stoop that’s not your own
This can be hard to resist: Such a large expanse of unused concrete surely deserves some company. The good news is that police officers often won’t hassle you until they’ve had a complaint from the stoop owner. But once that happens, all bets are off—because at that point, you’re not loitering, you’re trespassing. Owners have also been known to sign affidavits that turn the authority to enforce their trespassing rights over to the police. If your favorite abandoned house’s owner has this kind of formal agreement with the police, then officers are allowed to shoo you off the property whenever they’d like.
Understand loitering from the police perspective—but be aware of profiling
To hear Scott tell it, police don’t actually want to get into confrontations with loiterers. And yet, things get complicated, especially in places with historically rocky police relations. “There’s a very, very fine line between just hanging out for innocent purposes and just hanging out and engaging in illegal activity,” Scott says. “That’s why this is such a tricky thing to enforce.”
The fact of the matter is that drug dealing, petty theft and, intimidation—real crimes that often go along with loitering—are difficult to stamp out. Criminals can simply wait until police pass by to resume a drug deal or pick some pockets. And once a crime is committed, investigations are difficult. With gangs, especially, victims know that asking for police intervention means much worse retaliation later. As a well-meaning loiterer, try to understand that policing is a difficult task. Loiter accordingly.
But there are limits to understanding, and it’s true that you’re much more likely to be hassled if you’re a minority, you’re young, or you look (or are) homeless. Nancy La Vigne, director of the Justice Policy Center at the Urban Institute, acknowledges that race especially plays into shoddy enforcement of loitering ordinances. “One person could be standing in place for a long time and look like they’re loitering and another person could not—and that could be defined by color," she says. By that dint, the ACLU has been a historic opponent of anti-loitering laws on the grounds that they’re often used to target minority populations. When the Supreme Court struck down Morales in the late 1990s, the organization’s Illinois branch called it “a meaningful victory for young men of color in Chicago and across the nation.”
Hassling a loiterer just because she looks like a gang member (whatever criteria define that), Scott says, is lazy police work. Often, if an officer receives a complaint that’s clearly based on prejudice, it’s the officer’s job to educate rather than enforce. “If you know these kids are not causing any serious danger … it’s the role of the police to say to complainants, ‘I’m sorry if it offends you, but these people have rights and they’re not breaking the law,’” he says.