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Barnwell County Council has passed a loitering ordinance that contains sections that could violate the first amendment, according to a civil liberties expert The People-Sentinel spoke with.
“Loitering and vagrancy laws have an unfortunate history of violating our rights to free speech, assembly, and equal protection under the law,” said Paul Bowers, communications director for the American Civil Liberties Union (ACLU) S.C.
At their August 8 meeting, the council approved the first draft of an ordinance pertaining to loitering by title only. The ordinance was approved on the second reading at the council’s September 12 meeting and passed on the third reading on October 10.
The draft was created at the request of Barnwell County Sheriff Steve Griffith after a July 20 incident outside the Barnwell County Courthouse resulting in the arrest of one individual.
According to Sheriff Griffith, the ordinance draft is more precautionary and gives deputies legal ground/support if similar events occur.
The ordinance defines loitering as “an individual 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.’”
In the first draft, the ordinance defined loitering as “remaining idle in essentially one location, spending time idly, loafing or walking around aimlessly in a public place without a lawful purpose in such a manner as to…”
The final ordinance uses different language from the version that passed, however the subject matter has not changed significantly.
“What does it mean to spend time ‘idly?’ Whose definition of ‘usual’ applies when enforcing a rule against acting ‘in a manner not usual for law-abiding individuals’? And how can it be a crime to refuse to identify oneself?” said Bowers, regarding the phrasing of the first draft.
Reasons that may warrant alarm include fleeing upon the sight of law enforcement, refusal to identify oneself, or act to conceal oneself or objects. However, law enforcement officers are required to “afford the actor an opportunity to dispel any alarm,” allowing an individual to identify and explain themselves.
“Among the circumstances which may be considered in determining whether such alarm is warranted is the fact that the actor takes flight upon appearance of a law enforcement officer, refuses to identify himself or manifestly endeavors to conceal himself or any object,” states the ordinance.
“This latest example in Barnwell County poses just such a threat due to its vague language and appeals to arbitrary standards,” said Bowers.
According to the ordinance, a person cannot be convicted of violating this ordinance if a law enforcement officer did not give them an opportunity to identify and explain.
“No person shall be convicted of violating this subsection if the law enforcement officer did not comply with the preceding sentence,” states the ordinance.
The ordinance lists several public locations where loitering laws may be enforced upon unlawful intent. Residences, public restrooms, places where children congregate, public and private buildings, restaurants (after being asked to leave), and parking lots are all included.
The ordinance requires a person being asked for identification pursuant to this section to provide their name and address either verbally or producing identifying documents to law enforcement officers.
A person convicted of violating this ordinance may face up to 30 days in jail and/or a fine. Each day a violation of this section occurs it will constitute a separate offense.
If convicted, or even arrested, an individual can also be barred from returning to a specific area. If they do return to said area and are arrested, bond may be revoked and the person will be incarcerated until trial.
Historically vague language in enforcement procedure regarding loitering has led to similar legislation being brought before the Supreme Court.
A 2016 study titled ‘Public Safety or Social Exclusion? Constitutional Challenges to the Enforcement of Loitering Ordinances’ by the DePaul Journal for Social Justice by Eileen Divringi explores how loitering ordinances “encompass a range of regulations designed to limit the presence or behavior of certain individuals in certain public spaces.”
Divringi explains loitering ordinances regulating the use of public space became more widespread in the late 1980s and 1990s as a crime reduction effort. They originated from feudalism-era vagrancy laws aimed at making unemployment illegal, according to Divringi.
“As a result, in addition to crime prevention, vagrancy laws served an economic rationale that sought to punish individuals of lower socioeconomic classes who refused to participate in the feudal economy,” said Divringi, who notes many of these early laws violated the constitutional rights of all Americans.
Divringi finds there are common themes in loitering ordinances that have more recently entered federal courts in regard to the amount of discretion given to officers. This includes vagueness, being too broad or overbreadth, and challenges of equal protection.
While most prominent on the municipal level, some loitering-related cases have reached the Supreme Court. In the 1972 case of Papachristou v. Jacksonville, eight defendants had been convicted of violating an ordinance that criminalized vagrancy, loitering, and related activity. First deemed constitutional at a Florida circuit court, the case then went to the Supreme Court where it was found to be unconstitutionally vague.
Loitering ordinances have also garnered state response in South Carolina. In 2010, current Gov. Henry McMaster, who was serving as attorney general at the time, wrote a letter to Chief Sam White of the City of Union Public Safety Department in Union County, South Carolina regarding a loitering ordinance.
McMaster writes in this letter that the ordinance set forth by the department, while can only be deemed unconstitutional by a court, “does not provide sufficiently specific limits on the unfettered enforcement discretion of police officers in order to meet constitutional standards for “definiteness and clarity.’”
“As a result, in the opinion of this office the ordinance would be susceptible to overbreadth and vagueness challenges on the grounds that it does not provide the type of notice that would allow ordinary citizens an understanding as to what type of conduct is specifically prohibited and may allow arbitrary and discriminatory enforcement. Also, there are not sufficient minimal guidelines to instruct law enforcement in the enforcement of the ordinance,” states the letter.
