Presentation of Attorney General Denise George Committee on Homeland - - PDF document

Presentation of Attorney General Denise George Committee on Homeland Security, Justice, Public Safety and Veterans’ Affairs Thirty-Third Legislature of the Virgin Islands Wednesday, July 10, 2019

Good morning Chairman Steven Payne, Senators on the Committee on Homeland Security, Justice, Public Safety and Veterans’ Affairs, legislative staff, and to those of you in the listening and viewing audience. My name is Denise George, and I am the Virgin Islands Attorney General. I am honored to be here today at the Chairman’s invitation to offer statements on proposed Bill

• No. 33-0011. The purpose of today’s measure is to update and strengthen the Territory’s loitering

law by amending the language contained in 14 V.I.C. § 1191. The history of such laws date back to medieval Europe and were introduced on this continent with the establishment of the American colonies.1 Following the birth of this nation, those same laws were adopted from the British and continued to be enforced without serious challenge until late in the twentieth century.2 “The constitutionality of [these] vagrancy and loitering laws remained virtually unchallenged for most of this country's history for two reasons. First, poor defendants could rarely afford legal counsel to prosecute an appeal. And second, the lengthy appeals process was usually barely begun before defendants had finished serving their typically short sentences.”3 Then, the landscape of loitering laws began to evolve and face challenges following two U.S. Supreme Court cases. The first, Gideon v. Wainwright,4 resulted

1 See generally, William Trosch, COMMENT: The Third Generation of Loitering Laws Goes to Court: Do Laws

That Criminalize “Loitering With the Intent to Sell Drugs” Pass Constitutional Muster?, 71 N.C. Rev. 513, 515 (1993).

2 See id. 3 Joel D. Berg, NOTES: THE TROUBLED CONSTITUTIONALITY OF ANTIGANG LOITERING LAWS, 69

Chi.-Kent L. Rev. 461, 463 (1993).

4 Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963).

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in the guarantee of legal representation for indigent people charged with felonies; and the second case, Papachristou v. City of Jacksonville,5 in which the Court struck down that city’s loitering

• rdinance for being unconstitutionally vague. Since these decisions, loitering and vagrancy laws

have faced numerous challenges under a number of different legal theories. The most common of these are the void-for-vagueness doctrine; the overbreadth doctrine; and Fourth Amendment jurisprudence. The void-for-vagueness doctrine derives from the Fifth and Fourteenth Amendment’s due process requirements. The United States Supreme Court has stated that "[a] vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application."6 To satisfy the due process requirement, statutes must “be both sufficiently clear to provide people notice of what the state commands or forbids and provide minimal guidelines to harness the discretion of those who enforce the laws.”7 Under the notice requirement, a statute will be struck down if it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute."8 There are a number of ways in which the “minimum guidelines” requirement may be met. “The most obvious way is to include an intent requirement in the statute and to delineate what circumstances or conduct the police and the courts may consider when arresting and convicting people for loitering.”9 In short, any contemplated loitering law, in order to pass constitutional muster under the void-for-vagueness doctrine, should incorporate both an intent element, as well as minimum guidelines to inform police, juries, and

5 Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839 (1972). 6 Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). 7 Berg, supra, at 468. 8 United States v. Harriss, 347 U.S. 612, 617 (1954). 9 Berg, supra, at 472.

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judges of the conduct that may be considered in order to prevent arbitrary and discriminatory enforcement. The overbreadth doctrine is derived from the First Amendment “and invalidates statutes that substantially infringe upon constitutionally protected activities, regardless of whether or not the statutes may be legitimately applied in a particular case.”10 Loitering laws are often struck down on this basis because they encroach on an individual’s freedom of association, freedom to assemble, and even freedom of thought.11 The overbreadth doctrine has two dimensions relating to it. First, there is a substantive component that prohibits government officials from enforcing laws that infringe on constitutional freedoms. Courts will apply a two-prong test when conducting this analysis. “First, the law is read in light of any limiting constructions the state's courts have placed on the statute. Second, the courts determine the degree to which the statute as applied will infringe on protected activities.”12 Even if a law may be legitimately applied in certain circumstances, if it substantially infringes on constitutionally-protected activities it will be struck down. The procedural dimension to the overbreadth doctrine is simply an exception to the normal standing rule that prohibits third parties from bringing challenges on behalf of others. The purpose behind this is that law-abiding citizens may choose to simply follow the law rather than face arrest. When First Amendment freedoms are at stake, it is better to allow third parties the right to bring a challenge without having to actually break the law.

10 Vanessa Wheeler, ARTICLE: Discrimination Lurking on the Books: Examining the Constitutionality of the

Minneapolis Lurking Ordinance, 26 Law & Ineq. 467, 473 (2008).

11 See id. at 477. 12 Berg, supra, at 473.

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The final area of law that most challenges the loitering laws arise rests upon the Fourth

• Amendment. That amendment guarantees that "no warrants shall issue, but upon probable

cause."13 However, the Supreme Court has carved out several exceptions to the warrant

• requirement. In Terry v. Ohio, the Supreme Court created the reasonable suspicion exception in

upholding a police officer’s right to frisk a suspect where probable cause did not exist. The high Court created a balancing test in which the government’s interest in conducting the search

• utweighs the privacy interests of the individual subject to it. However, before the subject may be

frisked the officer must have a reasonable suspicion, supported by articulable facts, to believe that criminal activity is afoot and that the individual may pose a threat. In Papachristou, the court reasoned that vaguely written vagrancy and loitering statutes give too much broad discretion to the police in violation of the principles outlined in Terry. The Court stated: We allow our police to make arrests only on "probable cause," a Fourth and Fourteenth Amendment standard applicable to the States as well as to the Federal

• Government. Arresting a person on suspicion, like arresting a person for

investigation, is foreign to our system. . . . A direction by a legislature to the police to arrest all "suspicious" persons would not pass constitutional muster. 14 “By giving law enforcement universal probable cause, either with a vague law or by permitting arrest on suspicion alone, loitering laws circumvent the Fourth Amendment.”15 In short, an officer still must have probable cause that a crime has, or is about to be, committed in

• rder to make a valid arrest under the Fourth Amendment. While reasonable suspicion may

warrant further investigation, it alone, is insufficient to justify an arrest.

13 U.S. Const. amend. IV. 14 Papachristou v. City of Jacksonville, 405 U.S. 156, 169 (1972). 15 Trosch, supra, at 560.

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Having provided a brief background on loitering laws in general, I would now like to turn to the specific statute contemplated today. First, it is recommended that a definitions section be included that would define what “loitering” actually is. Regarding the definition of loitering, it is suggested that language be included that states the following: The word ‘loiter’ means to be dilatory, to stand idly around, to linger, delay, or wander about, or to remain, abide, or tarry in a public place and in doing so, engages in one of the below-enumerated unlawful activities. This type of language would be more likely to prevent people from randomly being stopped by the police without reasonable suspicion,

• r probable cause, because it would tie loitering to an underlying crime.

It is further suggested that subsections (a)(1)-(a)(5) of the proposed loitering statute actually reference the criminal provisions to which they apply. For example, subsection (a)(1) refers to gambling. As such, language should be included that references 14 V.I.C. § 1224. This section makes it illegal for anyone that “deals, plays, carries on, opens or conducts, either as owner

• r employee, either for hire or nor, any game of chance played with dice[] [or] cards. . . and shall

be fined not more than $200 or imprisoned not more than 180 days, or both.” Similarly, subsection (a)(2) should reference 14 V.I.C. § 1749,16 which prohibits presence on school property without lawful purpose or authority; (a)(3) should be tied to 14 V.I.C. § 1622;17 subsection (a)(4) should

16 This section states, in part: “(a) Whoever is present on the premises of any public or private school at any time,

whether on the school grounds or in a school building, without lawful purpose or authority, shall be fined not less than $300 nor more than $1,000 and be imprisoned for a mandatory minimum term of six months. A sentence for conviction

• n any other count for the same incident of unauthorized presence, such as vandalism, theft or assault, shall be served

consecutively rather than concurrently. Notwithstanding any other provision of law with respect to any person sixteen years of age or over who is found to have violated this section, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for parole prior to serving the mandatory minimum term of imprisonment prescribed by this section.”

17 That statute states:

Whoever— (1) engages in prostitution, lewdness or assignation;

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be linked with 19 V.I.C. § 604, et seq.; and subsection (a)(5) should be connected to 14 V.I.C. § 485 which relates to minors and alcohol. Subsections (a)(3), (a)(4), and (a)(5) each tend to touch on laws relating to the inchoate crimes of attempt, solicitation, and conspiracy. Attempt laws enable police to intervene at a particular moment in time prior to a crime being fully realized. However, “[a] basic tenet of attempt law, as is true in all criminal law, is that bad thoughts alone do not rise to the level of a

• crime. While courts differ as to what act is required to make out a charge for attempt, they agree

that ‘more than an act of preparation must occur.’"18 On the other hand, “[b]oth solicitation and conspiracy laws help prevent the fruition of criminal activity by giving law enforcement officers a tool, which they may use to intervene at the earliest stages of a plan to commit a crime, allowing them to act once the intent to commit the crime has been communicated.”19 Because today’s proposed measure seeks to tie loitering to another underlying crime, which may include solicitation, attempt or conspiracy, it would likely

(2) procures or solicits, or offers to procure or solicit, for the purpose of prostitution, lewdness or assignation; (3) keeps, sets up or maintains any place, structure, building or conveyance for the purpose of prostitution, lewdness or assignation; (4) permits any place, structure, building or conveyance owned by him, or under his control, to be used for the purpose of prostitution, lewdness or assignation with knowledge or reasonable cause to know that the same is, or is to be, used for such purpose; (5) receives, or offers or agrees to receive, any person into any place, structure, building or conveyance for the purpose of prostitution, lewdness or assignation, or permits any person to remain there for such purpose; (6) directs, takes or transports, or offers or agrees to take or transport, any person to any place, structure or building, or to any other person with knowledge or reasonable cause to know that the purpose of such directing, taking or transporting is prostitution, lewdness or assignation; or (7) resides in, enters or remains in any place, structure or building, or enters or remains in any conveyance for the purpose of prostitution, lewdness or assignation— shall be fined not more than $100 or imprisoned not more than 180 days, or both.

18 Jordan Berns, COMMENT: Is There Something Suspicious About the Constitutionality of Loitering Laws?, 50

Ohio St. L.J. 717, 720 (1989)(citing, W. LAFAVE & A. SCOTT, JR., CRIMINAL LAW 498, 504 (2d ed. 1986)).

19 Id. at 721.

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survive judicial challenge; however the statute should provide guidelines to officers should one of the inchoate crimes be suspected. Further, under subsection (b), three factors may be considered by police to determine whether an individual may be loitering with criminal intent. However, the second factor may not be used standing alone. This factor relates to an individual who refuses to identify himself to

• police. It must be remembered that individuals have a legal right to refuse to identify themselves

while walking the streets. This is clear from the holding in Brown v. Tex., 443 U.S. 47, 99 S. Ct. 2637 (1979), in which the U.S. Supreme Court found that Tex. Penal Code Ann. § 38.02(a)(1974), which made it a crime for a person to refuse to give his name and address to an officer who had lawfully stopped him and requested the information, violated the Fourth Amendment. The Court stated: In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference. The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow

• it. When such a stop is not based on objective criteria, the risk of arbitrary and

abusive police practices exceeds tolerable limits. Brown, 443 U.S. at 52. Keeping this in mind, I would encourage the Legislature to reconsider the language in subsection (b)(2). The Department would also like to recommend that statutory language be included that would command police to only make an arrest for loitering if there is probable cause for the

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underlying crime. The fact remains that a lawful arrest can only be effectuated for criminal

• ffenses in which probable cause exists.

Again, the aim in including the above-mentioned suggestions is to ensure that people’s constitutional rights are preserved, while giving the police some minimum guidelines in ascertaining whether a crime has or is about to occur. As such, the Department of Justice recommends that this Committee reconsiders Bill No. 33-0011, consistent with the foregoing

• recommendations. This concludes my formal testimony, and I am now available for any questions

the members may have.