You asked whether Hartford's loitering ordinance is constitutional.

Our office is not authorized to give legal opinions and this report should not be construed as one.

SUMMARY

Hartford's loitering ordinance prohibits anyone from loitering in a way that blocks or interferes with another person's use of the area. Connecticut courts have not interpreted the constitutionality of this ordinance or any other loitering ordinance. But, a Connecticut case concerning a Vernon curfew ordinance for minors addresses some of the constitutional issues that a Connecticut court would most likely address in a loitering case. Additionally, loitering ordinances have been at issue in cases before the U. S. Supreme Court and in other jurisdictions. While the decisions in the other jurisdictions have no bearing in Connecticut, Connecticut courts would likely look to them for guidance. U. S. Supreme Court decisions, on the other hand, are controlling in Connecticut.

Generally, loitering laws in other states have been challenged on two constitutional grounds-vagueness and unreasonable restraint on personal liberty. The vagueness issue seems to be the most common. The basic test in vagueness challenges is whether the ordinance clearly defines loitering and whether it provides explicit enforcement guidelines, that is whether it limits arbitrary enforcement. If undefined, loitering could apply to activities such as window shopping.

Courts have found loitering legislation unconstitutional because it created an unreasonable restraint upon personal liberties, such as the freedom of association. In these cases, local governments argue that the adoption and subsequent enforcement of these ordinances were clear exercises of the police powers inherent to all bodies of government.

If anyone were to challenge Hartford's ordinance on either of these two grounds, a court would likely find that it narrowly and specifically identifies the conduct that it seeks to prohibit; thus, it would not be seen as vague or overly broad. In other words, it provides the public with notice of the prohibited conduct.

A court would also likely find that the ordinance is a clear and legitimate exercise of the police powers that the state has granted to each of its 169 towns and not a violation of individual liberties.

Anyone, for example, who argues that the ordinance interferes with his right to travel would probably lose because this right is primarily recognized as guaranteeing a right to move freely from state to state, not around town. (Although not specifically mentioned in the federal or state constitution, courts recognize the right to travel as a constitutional right. )

The other possible liberty interest at stake is the right to freely associate guaranteed by the 1^st Amendment to the U. S. Constitution and Article First, Section 14 of the Connecticut Constitution. However, this is primarily a protection of freedom to associate for political reasons and is not often successfully used to attack the constitutionality of loitering statutes.

HARTFORD LOITERING ORDINANCE

State law permits municipalities to keep streets, sidewalks, and public places free from undue noise and nuisances, and to prohibit loitering (CGS § 7-148(c)(7)(F)). Hartford enacted Ordinance 25-8 under the authority of this statute. Ordinance 25-8 defines "loitering" as standing around, moving slowly about, spending time idly, sauntering, delaying, lingering, or lagging behind. The ordinance prohibits:

any person from loitering on streets, sidewalks, crosswalks, walks in public parks or any other public area so as to impede and interfere with the use of the street, sidewalk, crosswalk, walk in a public area by any other person.

Under the ordinance, any police officer may order violators to cease

and desist the prohibited conduct.

VAGUENESS

A statute is unconstitutionally vague if it (1) does not provide adequate notice for ordinary people to understand the activity that is prohibited or (2) authorizes or encourages arbitrary and discriminatory enforcement.

Applying this test, the U. S. Supreme Court struck down a Chicago ordinance designed to prevent loitering by gang members. Justice Stevens, writing for the majority, declared the ordinance unconstitutionally vague because of (1) its broad sweep, (2) the lack of notice to citizens, and (3) the vast discretion it gave to police regarding enforcement.

The Chicago City Council adopted the Gang Congregation Ordinance in 1992. Under the law, (1) a police officer must reasonably believe that at least one person in a group present in a public place is a criminal street gang member, (2) the person must be loitering by remaining in one place with no apparent purpose, and (3) the officer must order the group to disperse and leave the area. Anyone who disobeys the order is subject to a fine of $ 100 to $ 500, up to six months in prison, up to 120 hours of community service, or all three. It is a defense that no person in the group was actually a gang member (City of Chicago v. Morales, 527 U. S. 41 (1999)).

The federal District Court applied this same test when deciding the constitutionality of a Connecticut curfew ordinance. In Ramos v. Town of Vernon, 48 F. Supp. 2d 176 (1999), the Court found that a Vernon ordinance that established an 11 p. m. week night and 12: 01 a. m. weekend curfew for minors was not unconstitutionally vague under the federal constitution. First, the court noted that no reasonable person could argue that he does not know that the ordinance prohibits minors from being outside after curfew. Second, the court found that the exceptions to the ordinance (involving emergencies, job related duties, among other things) did not give police officers arbitrary or discriminatory enforcement. On certification of state issues raised by the plaintiffs, the Connecticut Supreme Court found that with respect to vagueness, the state constitution does not grant Connecticut citizens more rights than the federal constitution; thus, it found that the ordinance was not vague (Ramos v. Town of Vernon, 254 Conn. 799 (2000)).

When applying the vagueness test to the Hartford ordinance, a court would likely find that it is not unconstitutionally vague. It identifies the prohibited activity (i. e. , interfering with someone else's enjoyment of a public place) and restricts police activity to cases where interference has occurred. And, the ordinance applies to everyone, not segments of society; thus, reducing chances of arbitrary enforcement.

PERSONAL LIBERTY

The 1^st Amendment to the federal constitution and Article First, Section 14 of the state constitution guarantee freedom of association. The right to travel, although not specifically mentioned in the constitution, is recognized by courts as a constitutional right (see for example, Shipiro v. Thompson, 394 U. S. 618 (1969)). Citizens might argue that a loitering ordinance violates these provisions. A California court found that a county ordinance that prohibited loitering in any area with one or more persons where drug use occurred was unconstitutionally overbroad. The ordinance, according to the court, prohibited conduct that was protected under the 1^st Amendment's guarantee of freedom of association (Sawyer v. Sandstrom, 615 F. 2d 311 (1980)). In New Hampshire, a loitering ordinance that prohibited a person from loitering on sidewalks in front of businesses, public buildings, or houses of worship, after being warned by a police officer, violated the right of personal liberty under the 14^th Amendment (State v. Hudson, 274 A. 2d 878).

When these liberty arguments are raised, municipalities and states almost always argue that their actions (adopting and enforcing laws and ordinances) are reasonable given their broad police powers.

The police powers for municipalities in Connecticut is found under CGS § 148-7(c). This statute is broad and has many categories, including traffic regulation, public health and safety, and the environment. The Connecticut Supreme Court has noted that "any regulation enacted pursuant to the police power must be reasonably calculated to achieve that purpose; it must have a rational relationship to its objective . . . [and] courts can interfere only in those extreme cases where the action is unreasonable, discriminatory, or arbitrary . . . . [e]very intendment is to be made in favor of the validity of an ordinance and it is the duty of the court to sustain the ordinance unless its validity is established beyond a reasonable doubt " (Modern Cigarette, Inc. v. Town of Orange, et al. , 256 Conn. 105, 118 (2001) quoting Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 22-23, (1987)).

In a challenge to its loitering ordinance, Hartford would have to show that it had a rational basis for creating the ordinance and that the ordinance is reasonably tailored to meet this goal. This is the lowest form of constitutional scrutiny and it is likely that the Hartford ordinance would be able to survive a constitutional challenge. Hartford could argue that its rational reason for creating the ordinance was an interest in protecting the people from others interfering in their use of public areas. Next, it could argue that the ordinance is reasonably tailored to meet this goal since it only restricts people from interfering with the use of public areas and nothing more. Therefore, under the low scrutiny of the rational basis test, the Hartford ordinance will most likely withstand a police powers constitutional attack.

Other Jurisdictions

Loitering ordinances have been overturned as unconstitutionally overbroad uses of the police power where they failed to except people invited onto private property by the owner (Ruff v. Marshall, 438 F. Supp. 303 (1977)), where constitutionally protected conduct was not distinguished from unprotected conduct (Johnson v. Carson, 569 F. Supp. 974 (1983)), and where the police power to order dispersal is based solely on the presence of youth on a street corner (City of Chicago v. Youkhana, 660 NE 2d 34 (1995)).

JKM: eh