Loitering is the act of remaining in a particular public place for a protracted time, without any apparent purpose. In some jurisdictions, the definition of loitering may include indoor littering, and wearing of masks or disguises in public, such as New York.
While the laws regarding loitering have been challenged and changed over time, loitering is still illegal in various jurisdictions and in specific circumstances.
Prohibition and history
Loitering has historically been treated as an inherent preceding offense to other forms of public crime and disorder, such as prostitution, begging, public drunkenness, dealing in stolen goods, drug dealing, scams, organised crime, robbery, harassment/mobbing, etc.
Loitering provides a lesser offense that can be used by police to confront and deter suspect individuals from lingering in a high-crime area, especially when criminal intent is suspected, but not observed.
Local areas vary on the degree to which police are empowered to arrest or disperse loiterers; limitations on their power are sometimes made over concerns regarding racial profiling and unnecessary use of police force. The offense remains highly subjective: in many places, loitering is a crime in and of itself, while in others it is not, and serious criminal activity must be observed before police can confront any suspect.
The Vagrancy Act 1824 was designed to prevent suspected persons and reputed thieves lingering about certain places. This was modified slightly by 34 & 35 Vict. c.112, the Prevention of Crimes Act 1871, and by 54 & 55 Vict. c.69, the Penal Servitude Act 1891. A Vagrancy Act 1898 was passed only to be repealed by the Sexual Offences Act 2003, and completely eliminated from the archive.
The Vagrancy Act 1824 permits in section 6 "any person whatsoever" to apprehend offenders and to bring them directly before a Justice of the Peace. The same section creates a duty on "any Constable or other Peace Officer" to apprehend and bring them before a justice of the peace, or be charged with "Neglect of Duty", punishable in section 11 by a fine of five Pounds or three months in jail. The same Act provides disbursements from the general funds of Council for expenses of Prosecutors and Witnesses. Classes of persons this Act was designed to dissuade, on penalty of three months at hard labour, include:
- unlicensed salesmen;
- common prostitutes;
- beggars and alms gatherers, or those procuring children to do so;
- fortune tellers;
- palm readers;
- obscenity mongers;
- fraudulent Charity gatherers;
- promoters and players of Games of Chance;
- persons with instruments of assault;
- persons with instruments of robbery and break-in;
- persons found in or upon real property;
- and others besides.
The law was also used to criminalize men who were found in areas where men picked each other up for sex.
In several jurisdictions, persons required to register as a sex offender are prohibited from loitering within a defined distance of schools, parks or other places where children may congregate.
In 1992, the city of Chicago adopted an anti-loitering law aimed at restricting gang related activity, especially violent crime and drug trafficking. The law, which defined loitering as "remain[ing] in any one place with no apparent purpose", gave police officers a right to disperse such persons and in case of disobedience, provided for a punishment by fine, imprisonment and/or community service. It was ruled unlawful by the Supreme Court of the United States (Chicago v. Morales, 527 U.S. 41 (1999)) as unacceptably vague and not giving citizens clear guidelines on what the acceptable conduct was. In 2000, the city adopted a revised version of the ordinance, in an attempt to eliminate the unconstitutional elements. Loitering was then defined as "remaining in any one place under circumstances that would warrant a reasonable person to believe that the purpose or effect of that behavior is to enable a criminal street gang to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities."
- that an offence has been, or is about to be, committed by the person or by others in the vicinity (as more usually happens);
- that a breach of the peace has occurred, is occurring, or is about to occur, in the vicinity of the person or group;
- that there is, or is about to be, an obstruction to pedestrians or traffic caused by the presence of the person or of others in the vicinity;
- that the safety of a person in the vicinity is in danger.
Loitering laws no longer exist in Sweden (as the loitering law expired in 1981), but "The Public Order Act" regulates what one can and cannot do in public. The municipality decides what rules apply. For example, it is prohibited to drink alcohol in some designated public places. Loitering can be prohibited under particular circumstances.
The police in Germany have the right of "Platzverweis" / expulsion of a person from a place. This is an oral act and can not be objected. If a person does not follow the order then an arrest will follow immediately. There are a number of laws restricting the police measure, for example at an approved event including demonstrations. Most of the legislation limits the time to 24 hours as a maximum. If the police wants to have a person displaced for a longer time then an "Aufenthaltsverbot" / prohibition of entry is imposed. This is a written order which can be challenged.
These common measures have the character of limiting the rights of a person alone. There are only a few laws that limit the rights of usage in respect to a place in general. This can be the administrative definition of a "Gefahrengebiet" / insecure area when police statistics show a high amount of crime occurring. It allows to stop and search any person in that area without prior observation of a crime. Many central stations fall under this act. Additionally, government areas may be part of a "Bannmeile" / safe precinct limiting the rights of expression in that zone.
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