Anti-Loitering Law: No Harm, No Foul?

Mr. Preis is an attorney.

On Jan. 14, the police department designated part of the Corner Forum neighborhood (roughly from 13th to 14th, and between E and F Streets) a drug free zone for a period of five days. Under a drug free zone designation, a police officer who "reasonably believes" that two or more people are congregating for the "use, purchase, or sale of illegal drugs" may order the order the individuals to disperse. Individuals failing to disperse may be arrested and incarcerated for as long as six months.

In considering whether drug activity is afoot but not yet actually happening, the officer is to chiefly consider whether the loiterer (1) is engaging in behavior typical of drug dealers (such as exchanging packages, flagging down cars and warning others of the police), (2) is known by the officer (whether personally or via a trustworthy informant) to be involved in the drug trade, and (3) "has no other apparent lawful reason for congregating, . . . such as waiting for a bus or being near one's own residence."

In passing this law — the District's only anti-loitering provision — the District joined a growing number of municipalities looking for new ways to combat the elusive drug trade. From a law enforcement perspective, urban drug dealing is similar to prostitution — it is easy to identify the perpetrators as they walk the streets, but it is much harder to catch them in the act of actually committing the crime. Thus, these anti-loitering laws are an attempt to fight crime before it has matured into an actual crime.

In this way, anti-loitering laws brush dangerously close to basic civil liberties, such as the right to walk the public streets. In a much-discussed 1999 decision, the U.S. Supreme Court recognized that an "individual's decision to remain in a public place is . . . part of his liberty . . . [and thus] `a part of our heritage.' " In that case, the Supreme Court struck down a Chicago law that made it unlawful for known gang members to remain in a public place "with no apparent purpose." The Court objected to the law in that it granted police a tremendous amount of discretion in enforcement and also failed to inform the public of what behavior was lawful — i.e. what it meant to have "no apparent purpose."

The District's loitering law differs from that in the Chicago case because it is a "targeted" loitering law. It seeks to suppress not mere loitering, but loitering with the purpose of participating in the drug trade. Several federal appeals courts and state supreme courts have considered these types of statutes, and while several notable statutes have been struck down, the majority of courts have found them constitutional. Courts approving such laws generally reason that targeted loitering laws only infringe incidentally on the right to be in a public place and that the enumerated factors officers are to consider in determining whether the person is involved in the drug trade help keep police officers from wielding too much discretion.

Still, the District's law is troubling in several respects. Consider a case quite possible in our neighborhood: On a warm summer evening during a period when the neighborhood has been designated a drug free zone, a police officer notices three men talking in front of Excello and N-A Minit. He recognizes one as a known drug dealer. The men speak for a while, and then one of the men opens his wallet and hands the known drug dealer some money. The officer then approaches the men and instructs them to disperse. They refuse, claiming that they are just hanging out on warm night, making little noise and bothering nobody at all. The officer then arrests all three.

At trial, the jury would consider not whether any drug trade was occurring, but only whether the police officer acted reasonably in inferring that a deal was going down. Thus, although the one man may only have been paying the dealer $20 as repayment of a personal loan completely unrelated to drugs, the men would still be imprisoned for up to six months if the officer's actions seemed reasonable to the jury.

The message of this hypothetical is not that it's illegal to hang out in front of Excello and N-A Minit and deal drugs, but that it's illegal to hang out and look like you might be dealing in drugs. Be careful who you talk to, who you borrow money from, and who exchange packages with, the law advises.

Despite this troubling result, Police Chief Charles Ramsey, when queried by this reporter on a WTOP radio show, stated that he believed the law was entirely constitutional, but that his officers were nonetheless mindful of respecting people's personal liberties. His defense of the law was more pragmatic than legal; he stated simply that the police department is trying to return neighborhoods to those who live there-those who often cannot even leave their home for fear of the drug trade.

This pragmatic perspective was echoed by Kevin Morrison, spokesman for the Metropolitan Police Department. He stated that citizens are thankful for the increased police presence in drug free zones and that a decrease in drug trade has been seen in the drug free zones. He stated that he had no information on how often officers ordered citizens to disperse, but he did state that arrests under the law were few. More often, officers arrested individuals for actual drug violations, and not loitering with the appearance of drug dealing. Regarding any dispute over the statute's constitutionality, Officer Morrison stated that he was unaware of any legal challenge to the law and that the District waited several years before enforcing it, to determine whether it was within constitutional bounds.

Indeed, after a search of the District's criminal case law, no case was uncovered that even mentioned the Anti-Loitering statute. This objective tally suggests that the statute's overall effect — whether helpful to the police or harmful to the public — is likely de minimis.

The minimal impact of the law is probably due to three factors. First, the prohibition on drug-related loitering only remains in effect for 120 hours, a very short time. Second, the statute applies only to congregations of two or more persons. In other words, one is free look like a drug dealer all day and all night as long as one does so alone. Third, District police officers are much more focused on prosecuting actual drug crimes. An officer seeing conduct suggestive of drug dealing is more likely to wait until such behavior matures into an actual drug crime. An order by an officer to disperse is tantamount to a free warning for the drug dealer and a lost arrest.

Thus, although the law has the potential to yield some quite troubling results, its overall effect appears minimal. Its recent effect, if any, in our neighborhood is unknown. While some may argue that a statute which is relatively unused ought to be repealed, others, like Officer Morrison, defend it as another tool that officers can use in their pursuit of drug crimes.

As long as the scourge of drugs continue to trouble our city, and as long as the District enforces the law with considerable reason and discretion, the law is likely to remain a minor yet necessary intrusion into our civil liberties. §