Agenda Item 11
December 6,2011
WorksessionlAction
MEMORANDUM
TO:
FROM:
SUBJECT:
Public Safety Committee
Robert H. Drummer, Senior Legislative Attorney
fuCj
WorksessionlAction:
Bill 35-11, Offenses
Loitering or Prowling Established
Public Safety Committee recommends disapproval (2-1, Councilmember Andrews
recommending approval).
Expedited Bill 35-11, Offenses - Loitering or Prowling - Established, sponsored by
Councilmembers Andrews, Leventhal, and Rice was introduced on October 25,2011. A public
hearing was held on November 15, and Public Safety Committee worksessions were held on
November 17 and December
1.
Background
Bi1135-11 would prohibit certain loitering and prowling, provide for certain defenses, and
provide enforcement procedures and penalties. Under the Bill, "loitering and prowling means to
remain in a public place or establishment at a time or in a manner not usual for law-abiding
persons under circumstances that warrant a justifiable and reasonable alarm or immediate
concern for the safety of persons or property in the vicinity." Councilmember Phil Andrews
explained that he sponsored the Bill as an alternative to the curfew proposed by the Executive in
Bill 25-11 in an October 19 memorandum at ©5-6.
The Executive's Frequently Asked Questions about the County Executive's Youth
Curfew Proposal
l
states:
Police would confront teens called to their attention due to suspected suspicious,
menacing, potentially violent, or violent behavior. The police would not be
involved in routinely rounding up minors for the sake of enforcing the curfew
law, but the curfew would instead be a tool when encountering suspicious or
dangerous behavior either on patrol or when dispatched to a complaint from a
citizen. Those individuals would be asked to give their age and purpose for being
in a public place or establishment.
The Bill would provide the police with a more focused tool to respond to the situations described
by the Executive as the target of the curfew without being limited to minors or certain times of
the day.
i
A complete copy of the document is at ©9-14.
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Fiscal and Economic Impact
OMB could not determine the fiscal or economic impact of the Bill because the Police
Department could not estimate the potential number of arrests or citations that would result from
the Bill. See ©68-71.
Public Hearing
There were 8 speakers at the November 15 Public Safety Committee hearing on the Bill.
Assistant CAO Kathleen Boucher, testifying on behalf of the Executive, opposed the Bill as
"constitutionally questionable and practically unenforceable." See ©43-44. Max Etin, reading
the testimony of Delegate KirillReznik, expressed "muted support" for the Bill as a better
alternative to the youth curfew. See ©45. James Zepp, speaking on behalf of the Montgomery
County Civic Federation (at
©46-47i,
and Rebecca Smondrowski (at ©48) supported the Bill as
a more focused alternative to the youth curfew. Mike Mage, speaking on behalf of the
Montgomery County ACLU (at ©49-50) and Thomas Nephew, speaking on behalf of the
Montgomery County Civil Rights Coalition (at ©51-52) opposed the Bill as an unconstitutional
measure.
Darian Unger (at ©53) and Fred Evans (at ©54) each opposed the youth curfew that
would be established by Bill 25-11 without speaking directly about the merits of this Bill.
Finally, Paul Bessel (at ©55-57) and Edward
A.
Clarke (at ©58-59) submitted written testimony
in support of the Bill without appearing at the hearing.
November 17 Worksession
The Committee discussed the Bill at a worksession on November 17. Police Chief
Thomas Manger, Assistant Chief Wayne Jerman,
Lt.
David Anderson represented the Executive
Branch. Edward Lattner, Chief, Division of Human Resources and Appeals, Office of the
County Attorney, also answered questions. Bob Drummer, Senior Legislative Attorney,
represented Council Staff The Committee discussed the Bill, including the potential for a
successful constitutional challenge to the Bill, but did not make any recommendations.
December 1 Worksession
The Committee discussed the Bill at a worksession on December 1. Police Chief Thomas
Manger, Assistant Chief Wayne Jerman, and Assistant CAO Kathleen Boucher represented the
Executive Branch. Edward Lattner, Chief, Division of Human Resources and Appeals, Office of
the County Attorney, also answered questions. Senior Legislative Attorneys Mike Faden and
Bob Drummer and Legislative Attorney Amanda Mihill represented Council Staff. The
Committee discussed the Bill, including the potential for a successful constitutional challenge to
the Bill if the penalty was changed to a civil violation. The Committee recommended an
amendment to change the penalty to a Class B Civil Violation and to delete the requirement that
2
The Montgomery County Civic Federation fonnally voted to support Bi1l35-11 and oppose Bill 25-11 after the
hearing. See ©60-61.
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a police officer give a warning before issuing a citation. The Committee recommended
disapproval of the Bill (2-1, Councilmember Andrews supported the Bill as amended).
Issues
1.
Is the Bill unconstitutional on its face?
Questions have been raised concerning the constitutionality of Bill 35-11. In
Chicago
v.
Morales,
527 U.S. 41 (1999), the U.S. Supreme Court held that a Chicago law prohibiting
loitering in a public place together with a criminal street gang member was impermissibly vague
in violation of the Due Process Clause of the 14th Amendment to the U.S. Constitution.
However, the Chicago "gang congregation" ordinance struck down in
Morales
is distinguishable
from Bill 35-11.
Bill 35-11 is based upon the American Law Institute's Model Penal Code, §250.6. A
copy of the Model Penal Code, §250.6 is at ©7-8. Although ALI drafted this section of the
Model Penal Code in 1962, ALI has not updated or modified it since. Council staff contacted
ALI and learned that ALI is currently working on updates to other sections of the Model Penal
Code, but has no immediate plans to update §250.6. ALI describes itself in its website as:
The American Law Institute is the leading independent organization in the United
States producing scholarly work to clarify, modernize, and otherwise improve the
law. The Institute (made up of 4000 lawyers, judges, and law professors of the
highest qualifications) drafts, discusses, revises, and publishes Restatements of
the Law, model statutes, and principles of law that are enormously influential in
the courts and legislatures, as well as in legal scholarship and education. ALI has
long been influential internationally and, in recent years, more of its work has
become international in scope.
By participating in the Institute's work, its distinguished members have the
opportunity to influence the development of the law in both existing and emerging
areas, to work with other eminent lawyers, judges, and academics, to give back to
a profession to which they are deeply dedicated, and to contribute to the public
good.
ALI is a 501 (c)(3) nonprofit organization incorporated in the District of
Columbia.
In its 1980 Commentary to the Model Penal Code, ALI described the purpose of §250.6
as follows:
All in all, the Model code provision states an offense vastly different from the
traditional crime of loitering or vagrancy. Liability is based not on a status
derived from past behavior
eg.,
common drunkard - but on present conduct of
an unusual sort. Furthermore, the offense is not made out simply by the fact of
loitering but requires circumstances such that the actor's behavior justifies alarm
for the safety of persons or property. This formulation limits the offense to its
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essential law enforcement rationale of justifying intervention to prevent incipient
crime and avoids the extension of liability to persons who are simply socially
undesirable. Finally, Section 250.6 includes a special safeguard in the required
opportunity to dispel otherwise warranted alarm by identification and explanation
of one's presence and conduct.
Model Penal Code and Commentaries,
1980, p.
391.
Similar laws based upon the Model Penal Code have been upheld in Georgia,3 Florida,4 and
Wisconsin. s The Supreme Court of Georgia upheld the Georgia loitering law in
Bell v. State,
252 Ga. 267, 313 S.E.2d 678 (1984). The Supreme Court of Florida upheld the Florida loitering
law in
Watts v. State,
463 So.2d 205 (Fla. 1985). The Supreme Court of Wisconsin upheld the
Milwaukee loitering and prowling ordinance in
Milwaukee v. Nelson,
149 Wis. 2d 434; 439
N.W.2d 562 (1989). Despite the 1999 Supreme Court decision in
Morales,
convictions under the
loitering laws in Florida and Georgia were subsequently upheld in
B.J. v. State ofFlorida, 951
So.2d 100 (Fla. App. 2007) and
O'Hara v. State,
241 Ga. App. 855, 528 S.E.2d 296 (2000).
The Supreme Court of Georgia, in
Bell v. State,
described the test to decide if a statute is
unconstitutionally void for vagueness as:
The statute, when read as a whole, passes constitutional muster in advising
persons of ordinary intelligence of the conduct sought to be prohibited ... [and]
the statute also defines the offense in terms which discourage arbitrary
enforcement." 313 S.E.2d at 681.
Although applying the same test to a similar
loiterin~
and prowling law based upon the
Model Penal Code, §250.6, appellate courts in Washington, Oregon/ and IdahoS held that the
law was unconstitutionally void for vagueness. A similar Omaha, Nebraska ordinance was
declared unconstitutionally vague by the United States Court of Appeals for the 8
th
Circuit in
Fields v. Omaha,
810 F.2d 830 (8
th
Cir. 1987). The courts striking down these laws concluded
that the law provided too much discretion for a police officer to decide if an individual is
violating the law and is therefore susceptible to arbitrary or discriminatory enforcement.
It
is
important to note that a court could use the same theory to conclude that the Executive's
proposed enforcement plan for the youth curfew is susceptible to arbitrary or discriminatory
enforcement. We could not find any Maryland appellate court decisions reviewing a similar
loitering and prowling law for vagueness.
The County Attorney provided a thoughtful legal opinion on Bill 35-11 attached at ©34­
38. The County Attorney reviewed the conflicting court decisions in other States, and after
conceding that the constitutionality of the Bill is "open to reasonable debate," concluded that the
Maryland Court of Appeals would likely hold that the Bill is unconstitutionally void for
3
4
o.c.G.A.
§
16-11-36 (2011)
Fla. Stat.
§
856.021
(2011)
5
Milwaukee City Ordinance
§
106-31
6
Bellevue v. Miller,
85 Wn.2d 539; 536 F.2d 603 (1975)
7
Portland v. White,
9 Ore. App. 239; 495 F.2d 778 (1972)
8
State v. Bitt,
118 Idaho 584; 798 F.2d 43 (1990)
4
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vagueness.
9
The County Attorney predicted that the Maryland Court of Appeals would "find the
reasoning of the Idaho Supreme Court sounder than the opinion of the Florida Supreme Court."
Council staff is less certain of this prediction.
In
State
v.
Bitt,
the Idaho Supreme Court struck down the loitering or prowling law in a 3
to 2 decision with the Chief Justice dissenting. The decision of the Florida Supreme Court
upholding the loitering or prowling law in
Watts
v.
State
was 6 to 1 with the Chief Justice
dissenting. This was a contentious issue even in the States that have ruled on the issue. The
decision of the Oregon Court of Appeals in
City of Portland
v.
White
is not a decision by the
highest court in the State. The Oregon Supreme Court, in
City ofPortland
v.
James,
251
Or. 8,
12, 444
P2d
554 (1968), struck down a loitering law that was not based upon the Model Penal
Code, §250.6, but pointed out that the Court was not expressing an opinion as to the
constitutionality of a loitering or prowling law based upon the Model Penal Code. The decision
of the US Court of Appeals for the 8
th
Circuit striking down a loitering or prowling law in
Fields
v.
City of Omaha
is based upon facts that do not support any reasonable application of the law.
In
Fields,
a police officer noticed 2 women walking in the median strip of a divided highway and
asked them to stop walking in the street. They initially ignored the officer who then told them to
walk over to his vehicle. The 2 women complied. The officer asked them for identification.
One woman complied, the other refused. The officer arrested the woman who refused to identify
herself for loitering. The Court noted that walking down the median strip of a divided highway
and refusing to provide identification was not sufficient to satisfy any possible interpretation of
the loitering or prowling law.
In
Schleifer
v.
City of Charlottesville,
159 F.3d 843 (4
th
Cir. 1998), the Court upheld a
youth curfew adopted by the City of Charlottesville and expressly held that the statutory
exception for exercising First Amendment rights was not unconstitutionally void for vagueness.
The Court explained:
Striking down ordinances (or exceptions to the same) as facially void for
vagueness is a disfavored judicial exercise. Nullification of a law in the abstract
involves a far more aggressive use of judicial power than striking down a discrete
and particularized application of it. Of course there will be hard cases under any
law. And of course all the particular applications of any general standard will not
be immediately apparent. That is no reason, however, for courts to scrap
altogether the efforts of the legislative branch.
It
is preferable for courts to
demonstrate restraint by entertaining challenges to applications of a law as those
challenges arise. 159 F.3d at 853.
Although the Maryland Court of Appeals has not reviewed the constitutionality of a
loitering law based upon the Model Penal Code, the Court has applied the "void for vagueness"
test to uphold a challenge to a law prohibiting harassment and stalking in
Galloway
v.
State, 365
Md. 599 (2001). In
Galloway,
the Court started its analysis by pointing out the basic rule that a
statute is presumed valid. The Court reviewed conflicting decisions across the Country
It
is interesting to note that the County Attorney relies, in part, on the decision of the Court of Appeals in
Ashton
v.
Brown,
339 Md. 70 (1995), which struck down a juvenile curfew in Frederick City due to the vagueness of one of
the exceptions.
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considering whether a harassment statute was unconstitutionally vague and decided to follow the
jurisdictions upholding harassment statutes. The Court explained:
lO
Although ultimately we shall not follow those jurisdictions that have found
harassment statutes to be unconstitutionally vague, we briefly identify now the
reasons that tip our analysis in the other direction and to which reasons we shall
return later in our discussion for amplification. In short, even if arguably
otherwise deficient,
§
123 is salvageable because we shall employ a limiting
construction to the statute to ensure that it provides a standard of conduct and
indicates whose sensibilities are to be offended.
See, e.g., Schochet v. State, 320
Md. 714, 729, 580 A.2d 176, 183 (1990) (stating that"general statutes ..., which,
if given their broadest and most encompassing meaning, give rise to constitutional
questions, have regularly been the subject of narrowing constructions so as to
avoid the constitutional issues" and providing examples of such cases). Moreover,
§
123 has inherent limitations. The statute requires a reasonable warning to desist,
does not apply to "any peaceable activity intended to express political views or
provide information to others," and mandates that there be no "legal purpose" for
the activity.
Cf
Boychuk,
supra,
at 791-92 (contending that providing an
exemption of constitutionally protected activity or a court's assuming that a state
legislature did not intend to prohibit any constitutionally protected conduct
remedies vagueness problems (citing Richard H. Fallon, Jr.,
Making Sense of
Over breadth,
100 YALE L.J. 853, 862 (1991»). Lastly,
§
123 requires specific
intent on the part of the offender, which assists in alleviating vagueness
difficulties.
See, e.g., Williams,
329 Md. at 9,616 A.2d at 1279.
As the County Attorney pointed out at ©36-37, the Florida Supreme Court interpreted the
loitering or prowling law to require the officer to reasonably believe that the defendant's conduct
creates an imminent breach of the peace or an imminent threat to public safety. The underlying
facts supporting the decisions of the various State courts upholding the law met this standard. A
description of the facts by the Court for each case upholding the law is attached at ©39-42.
Council staff agrees with this interpretation of the Model Penal Code, §250.6 and Bill 35-11.
In conclusion, Council staff agrees with the County Attorney's assessment that the
constitutionality of Bill 35-11 is open to reasonable debate. However, the decision of the
Maryland Court of Appeals in
Galloway
to join those jurisdictions upholding harassment statutes
indicates a reasonable likelihood that the Maryland Court of Appeals would resolve this conflict
between the jurisdictions similarly and uphold the Model Penal Code. For this reason, Council
staff recommends that the Committee make its decision on this Bill on policy grounds rather than
legal predictions.
The Committee requested Council staff to draft an amendment to incorporate the
interpretation of the Model Penal Code, §250.6 by the Florida courts that upheld the law. See the
Staff Amendment at ©67.
10
365 Md. at 618-619.
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2. How would the Bill be enforced?
To detennine whether a person is loitering or prowling under the Bill, a police officer
may
consider if the person:
(A)
(B)
(C)
takes flight after the appearance of the officer;
refuses to identify himself or herself; or
attempts to conceal himself or herself or any object.
Unless impracticable, a police officer must give the person the opportunity to dispel the
officer's "reasonable alarm or immediate concern for the safety of persons or property in the
vicinity" by requesting the person identify himself or herself and explain his or her presence and
conduct. In order to issue a citation or make an arrest, a police officer must reasonably believe
that the person's conduct justifies alarm or immediate concern for the safety of persons or
property in the vicinity. Finally, the officer must first warn the person and the person must fail
or refuse to cease the conduct.
The Bill would also provide certain defenses.
It
would not be a violation if the arresting
officer fails to provide the opportunity to explain the conduct or if the explanation given to the
officer was true and would have dispelled the alarm or immediate concern.
3. How is Bill 35-11 different from the County's prior loitering law?
Prior to 2006, the County Code prohibited certain loitering. However, the prior loitering
law was not based upon the Model Penal Code, §250.6. Under the former version of Code §32­
13, loitering was defined as:
To circulate, stand around or remain or to park, or remain parked in a motor
vehicle at a public place or place open to the public and to engage in any conduct
prohibited under this law. Loiter also means to collect, gather, congregate or to
be a member of a group or a crowd of people who are gathered together in any
public place or place open to the public and to engage in any conduct prohibited
under this law.
Bill 15-06, enacted on July 11, 2006, deleted the tenn "loitering" from the Code and
replaced
it
with the current provision prohibiting certain "disturbing the public peace or
disorderly conduct." The legislative history for Bill 15-06 does not indicate that the former
loitering law was challenged in court. The deletion of the term "loitering" was made by the
Council at the suggestion of the ACLU. See the Council Action packet at ©15-33. County Code
§32-14 currently provides:
Sec.
32-14.
Disturbing the public peace or disorderly conduct-Prohibited
conduct.
An individual must not at, on, or in a public place or place open to the
pUblic:
(a) interfere with or hinder the free passage of pedestrian or vehicular
traffic; or
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(b)
incite unlawful conduct, by words or intentional conduct, which is
likely to produce imminent unlawful conduct.
Although some behavior may violate both Section 32-14 and the proposed loitering or prowling
offense that would be established by Bill 35-11, the removal of the term "loitering" by Bill 15-06
does not affect the legal sufficiency of Bill 35-11.
4. Should the Bill be amended to remove the requirement that the officer fIrst warn the
person of the possible violation?
The County Attorney also pointed out a potential conflict between the requirement in
subsection (c) that the officer give the person the opportunity to dispel the officer's alarm unless
the person flees the scene and the requirement in subsection (e) that the person first warn the
person of a possible violation. As the County Attorney points out, an officer may arrest a person
who flees, but may not be able to charge that person because no warning was given. We agree
with the County Attorney's analysis and recommend that subsection (e) be modified to eliminate
the required warning. This would make the law consistent with the Model Penal Code, §250.6.
Committee recommendation (2-1, Councilmember Eirich opposed):
delete lines 50-53 ofthe
Bill at ©3.
5. Should the penalty be reduced to a civil citation?
All of the cases striking down a loitering or prowling law based upon the Model Penal
. Code, §250.6 as unconstitutionally void for vagueness rely upon protection against a criminal
penalty.
An
alternative would be to amend the Bill to reduce the penalty to a Class B Civil
Violation subject to a maximum fine of $100 for the first offense and $150 for subsequent
offenses. This is the same penalty proposed by the Executive's amendments for curfew
violations under Bill 25-11. This would eliminate a potential civil rights suit for false arrest, but
would also eliminate the ability of the police to take an offender into custody.
The U.S. Supreme Court, in
Hoffman Estates
v.
The Flip Side,
455 U.S. 489 (1982), held
that an Illinois municipal ordinance requiring a business license to sell drug paraphernalia with a
civil penalty for non-compliance was not void for vagueness. The Court distinguished the need
for clarity of a law with a civil penalty from a law with a criminal penalty in the following
statement:
The Court has also expressed greater tolerance of enactments with civil rather
than criminal penalties because the consequences of imprecision are qualitatively
less severe. 455 U.S. at 498-499.
In
Hoffman Estates,
the Court held that in the absence of a restriction on 1
st
Amendment rights, a
civil penalty law can survive a facial attack on vagueness unless the plaintiff can "demonstrate
that the law is impermissibly vague in all of its applications." (455 U.S. at 497)
At the November 17 worksession, the Committee requested the County Attorney to
provide an opinion on the constitutionality of the Bill if the penalty was reduced to a civil
violation with no criminal penalty. The County Attorney, in a November 28 legal opinion (©62­
66), concluded that although
it
is open to reasonable debate:
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Amending Bill 35-11 to make the offense ofloitering and prowling enforceable as
a civil infraction only would remove the void for vagueness and Fourth
Amendment concerns identified in our November 14, 2011, memorandum.
Nonetheless, we believe that it is more likely than not that the Bill continues to be
unconstitutional because the Bill imposes, in an overly broad manner, an
infringement on an individual's right to travel.
The County Attorney concluded that the Bill's restriction on the right to travel would be
struck down under the Supreme Court's application of the strict scrutiny test. As the County
Attorney pointed out, courts have differed on whether an infringement of the right to travel is a
fundamental right subject to the strict scrutiny test that is almost always fatal or the more lenient
intermediate scrutiny test. The County Attorney predicted that the Maryland Court of Appeals
would apply the strict scrutiny test to this Bill and conclude that it was not narrowly tailored to
remedy the County's compelling governmental interest in preventing crime. Once again,
although Council staff agrees that this question is open to reasonable debate, we do not agree
with the County Attorney's prediction.
First, as the County Attorney pointed out
in
a footnote, the decision of the Idaho Supreme
Court striking down a criminal statute based upon the Model Penal Code, §250.6 did not find
that the same law unconstitutionally infringed on the right to travel. The Idaho Supreme Court,
in
State
v.
Bitt,
798 P.2d 43,48, concluded that the Model Penal Code, §250.6 does not regulate
a significant amount of the right to free movement. The County Attorney also pointed out in a
footnote that the Court in
Lutz
v.
City of York,
899 F.2d 255, 271
(3f.d
Cir. 1990) applied
intermediate scrutiny to uphold a challenge to the right to travel posed by a law prohibiting
repeated cruising around a congested city block in an automobile.
Finally, the County Attorney relied on the Supreme Court decisions in
Aptheker
v.
Secretary of State,
378 U.s. 500 (1964) and
City of Chicago
v.
Morales,
527 U.S. 41 (1999) to
conclude that the freedom to travel is a fundamental right requiring strict scrutiny similar to the
1
51
Amendment rights of free speech and association. However, the criminal law struck down in
Aptheker
infringed on the 1
st
Amendment right of association by prohibiting a member of the
Communist
Party
from applying for a passport and traveling outside the country. The criminal
law struck down in
Morales
also infringed upon the 1
st
Amendment right of association by
prohibiting loitering in public with a known gang member. Bill 35-11 does not infringe upon the
1
st
Amendment right of association because it does not limit enforcement against a person based
upon membership in a group.
In conclusion, amending Bill 35-11 to remove criminal penalties would enhance its
ability to survive legal challenges, but whether it would survive a facial attack as an
unconstitutional infringement on the right to travel remains open to reasonable debate.
Committee recommendation (2-1, Councilmember EIrich opposed):
amend the penalty to a
Class B Civil Violation. See lines 48-49 at ©3.
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This packet contains:
Bill 35-11
Legislative Request Report
October 19, 2011 Andrews Memorandum
Model Penal Code, §250.6
Executive's FAQ for the Curfew
Council staff packet for Bill 15-06
County Attorney Opinion dated November 14
Facts underlying decisions to uphold law
Testimony
Kathleen Boucher
Delegate Kirill Reznik
James Zepp
Rebecca Smondrowski
Mike Mage
Thomas Nephew
Darian Unger
Fred Evans
Paul Bessel
Edward Clarke
MCCF Letter of November 21
County Attorney Opinion dated November 28
Staff Amendment
Fiscal and Economic Impact Statement
Circle
#
1
4
5
7
9
15
34
39
43
45
46
48
49
51
53
54
55
58
60
62
67
68
F:\LAw\BILLS\I135 Loitering
&
Prowiing\Action Memo. Doc
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Bill No.
35-11
Concerning: Offenses - Loitering or
Prowling - Established
Revised: December 1, 2011 Draft No.
~
Introduced:
October 25, 2011
Expires:
April 25, 2013
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _--:-:_ _ _ _ _ _ __
Sunset Date: .....:,N.:.;:o"'-:'n=e_--::_ _ __
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Councilmembers Andrews, Leventhal and Rice
AN
ACT to:
(1)
(2)
(3)
(4)
prohibit certain loitering or prowling;
provide for certain defenses;
establish enforcement procedures and penalties; and
generally amend County law relating to offenses.
By adding
Montgomery County Code
Chapter 32, Offenses
Section 32-23B
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface bracketsD
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original hill.
Added by amendment.
Deleted/rom existing law or the hill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
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BILL
No.
35-11
1
Sec
1.
Sections 32-23B is added as follows:
32-23B. Loitering or Prowling.
(ill
2
3
4
5
Definitions.
As used in this Section:
Establishment
means any privately-owned place of business to which
6
the public is invited, including any place of amusement or
entertainment.
[[Loitering or prowlingl1 Loiter or prowl
means to remain in
£!
public
7
8
9
place or establishment at
£!
time or in
£!
manner not usual for law-
abiding persons under circumstances that warrant
£!
justifiable and
reasonable alarm or immediate concern for the safety of persons or
property in the vicinity.
Public place
means any place to which the public, or
£!
substantial
10
11
12
13
14
group of the public, has access.
Public place
includes any street,
highway, and common area of
£!
school, hospital, apartment house,
office building, transport facility, or shop.
Remain
means to linger, stay, or fail to leave
£!
public place or
15
16
17
18
19
establishment when requested to do so
Qy
£!
police officer or the
owner, operator, or other person in control of the public place or
establishment.
(Q}
20
21
Prohibitions.
22
23
ill
ill
A person must not loiter or prowl in any public place or
establishment in the County.
In determining whether
£!
person is violating this Section,
£!
police officer may consider if the person:
(A)
takes flight after the appearance of the officer;
refuses to identify himself or herself; or
2
F:\Law\Bills\1135 Loitering
&
Prowling\Bill 3.Doc
24
25
26
27
.an
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BILL
No. 35-11
28
29
!£}
attempts to conceal himself or herself or any object.
W
Enforcement Procedure.
30
31
32
ill
Unless flight
Qy
the person or other circumstances make
i!
impracticable,
f!
police officer must, prior to any arrest for
f!
violation of this Section, give the person an opportunity to
dispel any alarm or immediate concern which would otherwise
be warranted
Qy
requesting the person:
(A)
.all
to identify himself or herself; and
to explain his or her presence and conduct.
33
34
35
36
37
38
39
40
ill
The police officer must not issue
f!
citation or make an arrest
under this Section unless the officer reasonably believes that the
person's conduct justifies alarm or immediate concern for the
safety of persons or property in the vicinity.
41
42
43
44
45
@
Defenses.
[[ill]]
It
is not
f!
violation of this Section if:
the
arresting
officer
did
not
comply
with
the
[[(A)]] ill
[[.all]]
ill
requirements of subsection
(£t
or
the explanation given to the police officer
Qy
the person
was true and would have dispelled the alarm or immediate
concern.
46
47
W
Penalties.
48
49
50
51
52
[[ill]]A person who violates this Section has committed
f!
Class B
civil violation.
[[ill
A person must not be charged with
f!
violation of this Section
unless the arresting officer has first warned the person of the
violation and the person has failed or refused to stop the
violation.]]
53
3
F:\Law\Bilis\1135 Loitering & Prowling\Bi1l3.Doc
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LEGISLATIVE REQUEST REPORT
Bill 35-11
Offenses
-
Loitering or Prowling
-
Established
DESCRIPTION:
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIP ALITIES:
PENALTIES:
Bill 35-11 would prohibit certain loitering and prowling, provide for
certain defenses, and provide enforcement procedures and penalties.
This Bill is an alternative to the youth curfew that would be
established by Bill 25-11,
Offenses - Curfew - Established.
The Bill would provide the Police with a more focused tool to
prevent problems that may occur as a result of people gathering for
.
the purpose of causing trouble.
Police, County Attorney
To be requested.
To be requested.
To be requested.
Similar laws have been enacted in Florida and Georgia. The Bill is
based upon the American Law Institute Model Penal Code, §250.6.
Robert H. Drummer, Senior Legislative Attorney
To be researched.
Class B Violation
F:\LAW\BILLS\llxx Loitering
&
Prowling\Legislative Request Report.Doc
(j)
f:\law\bills\1135 loitering
&
prowling\legislative request report.doc
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MEMORANDUM
October 19,2011
TO:
FROM:
SUBJECT:
Councilmem bers
Phil Andrews, Chair Public Safety Committee
~
A better approach than a youth curfew to addressing crime
Many community members and organizations have voiced opposition or concerns about
the County Executive's proposed youth curfew. Regardless of what you think about the
County Executive's proposal, there is a better path for the Council to take and a better tool
to give County Police to address the same concerns that the County Executive says he
wants to address.
The Executive's document "Frequently Asked Questions about the County Executive's
Youth Curfew Proposal", states, "Current laws are not adequate to manage large groups of
teens that gather for the purpose of causing trouble." The document also says "Police would
confront teens called to their attention due to suspected suspicious, menacing, potentially
violent, or violent behavior ...." and that" ... the curfew would be
(fa
tool when
encountering suspicious or dangerous behavior either on patrol or when dispatched to a
complaint from a citizen. Those individuals would be asked to give their age and purpose
for being in a public place or establishment."
A far better approach than a youth curfew to address the behavior that the Executive
Branch wants to address - behavior that can occur anytime by people of any age -- would
be a law prohibiting lOitering and prowling modeled after a long-standing and recently
upheld state law in Florida. Unlike a youth curfew, a lOitering and prowling law wouldn't
discriminate based on age, wouldn't be limited to late-night hours whena small percentage
of youth crime and overall crime occurs, and would target criminally suspicious behavior
by anyone, rather than making it illegal (with exceptions) for certain people (youth) to be
out in public after certain hours. LOitering laws can be drafted to withstand a court
challenge. In fact, the Florida law prohibiting lOitering/prowling recently withstood one.
The draft law would enable police to take action if the person moved along but continued
the suspicious behavior while lingering in a public place, including any place to which the
public has access, including a street. The Class B violations proposed in the law can be civil
($100 for first offense) or criminal, as circumstances warrant.
It is encouraging that crime by youth in our County has steadily declined since 2007, from
3,844 that year to 3,104 incidents in 2010. Gang-related incidents declined by 50% from
2008 to 2010, and youth arrests during the proposed curfew declined 18% from 2009 to
2010 (while increaSing significantly during non-curfew hours). In addition, since the
Council approved additional police officers for the Third District -- a proven approach to
reducing crime -- robberies and aggravated assaults have declined dramatically in the
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Silver Spring Central Business District from an average of six per month to an average of
1.5 this August and September, as have robberies and residential burglaries in the Rt. 29
corridor (the Ida sector). Credit is due to the fine work done by County police, as well as to
County and non-profit personnel who administer and run our positive youth development
programs. But more needs to be done to prevent and suppress crime, including expanding
organized activities for youth, helping youth get out of gangs, and increasing police
presence in targeted areas.
I invite you to co-sponsor the attached bill prohibiting loitering and prowling. The measure
would provide County Police with an effective tool to address suspicious behavior by
people of any age and any time of the day. Please let me or Lisa Mandel-Trupp know if you
would like to sign on to the bill or have any questions or suggestions. I am hopeful that this
is an approach that the Council can unite behind. Thanks for your consideration.
Attachment: Draft bill on loitering and prowling
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Page I
LexisNexis®
Model Penal Code
Copyright 1962, American Law Institute
P ART II. DEFINITION OF SPECIFIC CRIMES
OFFENSES AGAINST PUBLIC ORDER AND DECENCY
ARTICLE 250. RIOT, DISORDERLY CONDUCT, AND RELATED OFFENSES
Model Penal Code
§
250.6
§
250.6. Loitering or Prowling.
A person commits a violation if he loiters or prowls in a place, at a time, or
in
a manner not usual for law-abiding indi­
viduals under circumstances that warrant alarm for the safety of persons or property
in
the vicinity. Among the circum­
stances which may be considered in determining whether such alarm is warranted is the fact that the actor takes flight
upon appearance of a peace officer, refuses to identify himself, or manifestly endeavors to conceal himself or any ob­
ject. Unless flight by the actor or other circumstance makes it impracticable, a peace officer shall prior to any arrest for
an offense under this section afford the actor an opportunity to dispel any alarm which would otherwise be warranted,
by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense
under this Section if the peace officer did not comply with the preceding sentence, or if it appears at trial that the expla­
nation given by the actor was true and, if believed by the peace officer at the time, would have dispelled the alarm.
NOTES:
Explanatory Note for Sections 250.1-250.12
Article 250 covers riot, disorderly conduct, and related offenses. This article deals with a vast area of penal law,
which, at the time the Model Code was drafted, had received little systematic consideration by legislators, judges, or
scholars. The penalties involved were generally minor, the defendants usually came from the lower social and economic
levels, and appeals were consequently infrequent. For these reasons, pressures for legislative reform were minimaL Yet,
disorderly conduct and related offenses form a critically important area of the criminal justice system. Offenses in this
category affect a large number of defendants, involve a great proportion of public activity, and powerfully influence the
view of public justice held by millions of people.
The purposes of Article 250 are the following:
(1) to systematize the chaotic provisions of prior law penalizing a wide variety of petty misbehavior
under such vague headings as "disorderly conduct" or "vagrancy";
(2) to provide a rational grading of penalties and especially to limit the discretion of the minor judi­
ciary to impose substantial imprisonment for petty infractions;
(3) to safeguard civil liberty by careful definition of offenses so that they do not cover, for example,
arguing with a policeman, peaceful picketing, or disseminating religious or political views;
(4) to minimize the overlap of disorderly conduct offenses and offenses dealt with by more specific
provisions of the Model Code so that policies embodied in other offenses will not be disregarded by
prosecuting the same behavior as disorderly conduct;
(5) to eliminate obsolete or unconstitutional provisions frequently found in prior law, e.g., against
blasphemy, or creating "status crimes," such as being a common scold, common prostitute, common
gambler, or common drunkard;
(j)
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Page 2
Model Penal Code § 250.6
(6) to extend the penal law to new areas of misbehavior involving public or aggravated assault on
the feelings of individuals and groups, e.g., by false bomb scares, harassing telephone calls, illegal wire­
tapping, and other invasion of privacy; and
(7) to improve criminal statistics by requiring prosecuting and reporting agencies to distinguish the
widely differing forms of misbehavior often lumped together under the common heading "disorderly
conduct."
Section 250.1 defines the offense of riot, which is the only felony in this article, and a subsidiary offense of failure
of disorderly persons to disperse upon official order. The objectives of this offense are to provide aggravated penalties
for disorderly conduct where the number of participants makes the behavior especially alarming or dangerous and to
establish penal sanctions for persons who disobey lawful police orders directing a disorderly crowd to disperse.
Section 250.2 covers the offense of disorderly conduct, which is defined in ways significantly different from prior
law. Perhaps most notably, Section 250.2 prohibits only conduct that is itself disorderly and does not punish lawful be­
havior that prompts others to respond in a disorderly manner. Another significant innovation in the law of disorderly
conduct is the reduction of the offense to a violation, which does not authorize imprisonment, unless the actor's purpose
is to cause substantial harm or serious inconvenience or unless he persists in disorderly conduct after reasonable warn­
ing or request to desist, in which case the offense is a petty misdemeanor.
The next six sections of Article 250 deal with special cases of conduct that is disorderly or otherwise constitutes a
public nuisance. Section 250.3 punishes false public alarms as a misdemeanor. Section 250.4 defines the petty misde­
meanor of harassment. This offense covers a variety of harassing events, including making a telephone call without pur­
pose of legitimate communication, insulting another in a manner likely to provoke violent response, making repeated
communications anonymously or at extremely inconvenient hours or in offensively coarse language, and engaging in
any other course of harmful conduct serving no legitimate purpose of the actor. Section 250.5 states the Model Code
offense of public drunkenness and drug incapacitation.
It
differs from prior law principally in requiring that the person
be under the influence of alcohol or other drug "to the degree that he may endanger himself or other persons or property,
or annoy persons in his vicinity." Additionally, Section 250.5 departs from earlier practice in punishing public drunken­
ness as a violation unless the actor has been convicted twice before within a period of one year, in which case the crime
is a petty misdemeanor.
Section 250.6 defines the crime of loitering or prowling. This offense replaces the extremely broad vagrancy laws
typical of an earlier time with an offense carefully designed to nip incipient crime in the bud. Specifically, Section 250.6
punishes a person who loiters or prowls "under circumstances that warrant alarm for the safety of persons or property in
the vicinity.
II
The section further requires that, save where impracticable, the police officer shall, before making an ar­
rest for this offense, afford the actor an opportunity to dispel alarm for persons or property by identifying himself and
explaining his presence and conduct. Section 250.7 punishes the obstruction of highways and other public passages and
deals particularly with police control over a person whose speech or other lawful behavior attracts an obstructing audi­
ence. Section 250.8 covers disrupting meetings and processions. This offense is distinct from the general provision
against disorderly conduct in that it reaches some instances of behavior not in itself disorderly but calculated to outrage
the sensibilities of the group involved.
Finally, Article 250 includes several offenses addressed to disparate kinds of conduct that, although not likely to
generate disorder, are widely recognized as instances of public nuisance. For example, Section 250.9 punishes the pur­
poseful desecration of venerated objects, including most notably the national flag. Section 250.10 deals with abuse of
corpse. Section 250.11 punishes cruelty to animals, and Section 250.12 covers violation of property in a variety of dif­
ferent contexts.
Two comments of a more general nature should also be made at this point. First,
it
should be noted that regulariza­
tion of the state penal code will not suffice to bring reform to this area of the law.
It
will also be necessary to suppress or
align innumerable local ordinances under which much prosecution of disorderly conduct and related offenses takes
place. Second, the constitutional background of these offenses
has
changed significantly since promulgation of the
Model Code in 1962. In general, judicial concern with the vagueness of penal legislation has increased; and expanding
concepts of liberties protected under the first amendment have withdrawn many areas of expressive activity from legis­
lative competence. The various constitutional questions raised by the offenses in Article 250 are discussed in the Com­
ments to specific sections.
For detailed Comment to 250.6,
see
MPC Part II Commentaries, vol. 3, at 383.
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Frequently Asked
Questions about the
County Executive's
Youth Curfew Proposal
From the Montgomery County Office of Public Information
..... Why is Montgomery County considering a curfew?
Simply put, ayouth curfew will help protect young people. The County is
considering a limited youth curfew as an additional method to improve the safety of
juveniles, the safety of residents and visitors to our increasingly urbanized communities,
and to reduce juvenile-related crimes. In the past several months police have seen gang
members and other young adults coming from neighboring areas that have curfews and engaging
in unlawful or violent activities - at times including county youth or directed at them. Current laws are not
adequate to manage large groups of teens that gather for the purpose of causing trouble. Ayouth curfew would complement
already existing public safety activities and positive youth development programs to protect underage youth from being the victims
of crime or being involved in crime.
..... What could a curfew accomplish?
A limited curfew could help prevent our youth, other residents, and businesses from becoming victims of unlawful behavior close
to and during the curfew hours. It would give the Montgomery County POlice Department the same tool that Prince George's
County and Washington D. C.'s Metropolitan Police have to prevent unlawful behavior and victimization. It would help manage the
influx of youth coming from other curfew-regulated jurisdictions who engage in criminal activity. A by-product could be assisting
parents and guardians who have difficulty getting their teens to adhere to family-established curfews. A curfew is a management
tool that pOlice could use to disperse large groups of juveniles, such as the approximately 25-member group who participated in
the August mass theft at a 7-Eleven store in Germantown just before 2:00 a.m.
..... What does the curfew law include?
The curfew basically restricts youths under the age of 18 from gathering and remaining in public places between 11 :00 p.m. and
5:00 a.m. Sunday through Thursday and between midnight and 5:00 a.m. on Friday and Saturday. Its purpose is to prevent
unlawful behavior and safeguard law-abiding teens. It includes a list of exemptions for which it would not restrict minors during a
portion of or all of the curfew hours.
..... Which other jurisdictions have curfews?
According to a survey by the United States Conference of Mayors, more than 500 U.S. jurisdictions have youth curfews, including
84 percent of cities with populations over 180,000.
In our area, two of the largest urban areas, the District of Columbia and Prince George's County have curfew laws. So does
Baltimore. Virginia state law allows local jurisdictions the authority to establish curfews for minors between the hours of 10:00 p.m.
and 6:00 a.m. In 1996, President Bill Clinton recommended a 9:00 p.m. youth curfew to protect young people from becoming
victims. Over 70 cities have daytime youth curfew laws to hold parents accountable and keep kids in school. Montgomery County
has revitalized or developed urban centers in Bethesda, Clarksburg, Germantown, Rockville, Silver Spring, and Wheaton, so it would
make sense to have a
county-wide
curfew.
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.... How will
it
work?
Police would confront teens called to their attention due to suspected suspicious, menacing, potentially violent, or violent behavior.
The police would not be involved in routinely rounding up minors for the sake of enforcing the curfew law, but the curfew would
instead be atool when encountering suspicious or dangerous behavior either on patrol or when dispatched to a complaint from a
citizen. Those individuals would be asked to give their age and purpose for being in a public place or establishment.
If they are 17 or younger and their purpose for being out does not fall within the exemptions, the minor would be advised of the
curfew law and directed to return home. If the minor leaves, no further action would be taken. If the minor refuses to leave, the
minor would be issued acivil citation. If the minor still refuses to leave, he could be "failing to obey the lawful order of a law
enforcement officer to prevent adisturbance of the public peace" and could be taken into custody.
The now "juvenile defendant" would be transported to a Police District station and processed for that misdemeanor charge. The
defendant's parents and/or guardian would be notified to come and take custody of the minor. If the appropriate adult responds,
the juvenile is released to that person pending any follow-up action by the Department of Juvenile Services (DJS).
If
the parentI
guardian or their deSignee refuses or is unable to respond to take custody, the DJS is contacted by the arresting officer. The DJS
has its own protocols that determine if the juvenile will be placed in afacility pending action the following day. Youth who are
repeat offenders and who appear to lack adult supervision and support may be brought to the attention of Montgomery County's
Department of Health and Human Services so that some follow up or assessment may be completed and the needs of the youth
may be addressed .
.... What are the penalties?
Acurfew violation would be acivil violation punishable by afine of $100 for the first offense and $150 for asecond offense
according to amendments the County Executive is proposing to the original bill. As amended, minors would not be ordered to
perform up to 25 hours of community service. If arrest authority is needed a juvenile offender could be charged with "failure to
obey an order made by a police officer to prevent adisturbance of the public peace."
The penalty for the criminal offense of "failure to obey" is up to 60 days in jail and/or up to a$500 fine.
Aparent of a minor commits an offense if he or she knowingly permits, or allows, a minor to remain in any public place during
curfew hours. Parents would also be liable for afine of $100 for the first offense and $150 for asecond offense. Parents of a minor
cited under the law would not be required to attend parenting classes.
An owner or operator of an establishment commits an offense if he or she knowingly allows a minor to remain on the premises of
the establishment within curfew hours.
Any owner or operator of an establishment not exempted under the curfew - after being given awarning - is subject to afine of
$100 for the first offense and $150 for asecond offense.
.... When is a juvenile exempt from the curfew?
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
When accompanied by a parent or guardian.
When accompanied by another adult authorized by the parent or guardian to accompany the juvenile for a designated
purpose and period of time.
When on an errand at the direction of the parent or guardian without any detour or stop until 12:30 a.m.
When in a motor vehicle, train, or bus in interstate travel through the County or starting or ending in the Cou nty.
When going to, engaged in or returning home from employment without any detour or stop.
Responding to an emergency.
When on the property where the minor lives,
On the sidewalk next to the minor's residence or the next-door neighbor's residence if the neighbor does not complain to
police about the minor's presence.
When attending, or returning from an official school, religious, or other type of recreational activity sponsored by the
County, acivic organization, or another similar entity that takes responsibility for the minor at the event.
When exercising First Amendment rights protected by the U.S. Constitution, including free exercise of religion, freedom of
speech, and the right of assembly.
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~
What additional exemptions are being considered?
The County Executive has proposed an additional exemption when a minor is attending and/or returning from a movie, concert,
play, or sporting event.
~
How can you ensure that a curfew will not cause police to engage in racial and age profiling?
Police would be asked to respond to groups of young people and particular situations that appear threatening or where trouble has
erupted. The response would be based on activity, not race. Officers would not be stopping someone solely based on their race or
potential juvenile status. There would need to be probable cause to believe that trouble would occur. Montgomery County Police
have consistantly been vigilant about not engaging in profiling. There is no reason to believe that a new law would cause that to
change. Prevention of any type of profiling is based on hiring the right caliber of officers, giving officers appropriate and continuing
training, and having consequences in place for failure to perform to defined standards.
~
Curfews fail to address the causes of juvenile delinquency. Why doesn't the County put more efforts into prevention
programs which would target the offenders, not the law-abiding teens?
The County has invested and does invest in prevention and suppression programs. The County has spent over $8 million in
prevention-based programming over tile past four years as part of the County Executive's "Positive Youth Development" initiative
which includes out-of-school -time programs across the County. Programs are offered throughout the year at both the middle
school and high school levels with the goal of providing youth with safe, supervised and constructive activities that prevent negative
behavior. Tile Police, Health
&
Human Services and Recreation Departments join together with other agencies in efforts to educate
about, intervene to prevent, and suppress gang activity in the County.
The youth curfew would complement these and other efforts by government and community and non-profit groups and organizations.
The problem of youth violence and victimization needs immediate attention by police who are in need of another means to control unruly
groups of minors. The curfew in not meant to take the place of other types of assistance to at-risk teens and their parents.
~
Why don't you take the money you would spend on administering a curfew and spend
it
on youth programs to help
prevent violence?"
The cost to administer a curfew would be low and offset by the prevention of situations that would tax Police resources even more.
The County is already investing in a broad range of positive youth programs.
~
The crime statistics posted on the police website show that crime is down in the county and that there is a decrease
in "youth offenses." Why a curfew when youth crime is down?
Total crime has been on a downward trend in the County for the past four years. That's good news. However, the "juvenile offenses"
category of statistics under the Uniform Crime Reporting standards refers only to "runaways, "out of control youth", and
"runaways-other jurisdictions" which are exclusive to juveniles. It is not a measure of such crimes as robberies, assaults, sexual
offenses, etc. that may be committed by either juveniles or adults.
Still, existing County data shows that the total number of youth arrests increased from 1,548 in 2006 to 2,626 in 2010. Juvenile
arrests as a percentage of all arrests increased from 12 percent in 2006 to 21 percent in 2010.
The curfew proposal did not come after a study of statistics that showed a dramatic increase in crimes committed by juveniles.
Rather, it came as a proactive measure to address an emerging potentially dangerous situation and to better protect young people
from being Victims of crime or being involved in criminal activity.
~
Why not limit curfews to, say, the Central Business Districts in the County?
That would Simply cause the problem to shift across the street, just outside the business districts or to other parts of the County.
Not all juvenile-related crimes and juvenile victimization occur in Central Business Districts.
~
Do curfews really cut down on youth crime?
If you do some research you'll find that there are valid studies that say they don't and others that say they do. However, one of
the benefits of a curfew is that it can act as adeterrent to crime; and that aspect of a curfew - what doesn't happen - can't be
statistically measured.
We do know for certain that serious traffic crashes involving our youngest drivers have dropped significantly since Maryland
tightened teen driving laws. According to preliminary state data released in June of this year, teen fatalities dropped 25 percent
from 48 deaths in 2009 to 36 in 2010. Teen injuries fell by 17 percent, from 5,479 in 2009 to 4,543 in
2010.
Teen drivers can't
obtain a license without restrictions, including driving between midnight and 5:00 a.m., until they are 18 years old. The curfew
would apply the same types of restrictions to teens who are on foot or who use mass transit.
(fj)
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... If you are basing the need for a curfew on actual crimes being committed by young people during the overnight
hours, why am I not seeing that reflected in the crimes listed in the Recent Crime Summaries that are posted on
the police website on each District's webpage?
The Recent Crime summaries are not a listing of every crime reported in the county. The summaries provide asampling of trends
of crimes reported to police. There is no suspect description for the majority of the crimes listed, so the age of a suspect is not
known at that phase of reporting Because of that, reviewing what is printed in the crime summaries would not be a means of
determining how many crimes are committed by juveniles and/or how many crimes are committed during proposed curfew hours.
Those crime listings do not include calls for service that come through the police computer-aided dispatch system. Some of those
calls for service do not require that a report be written but still mandate a police response. An example might be afight in progress
or a disorderly conduct incident.
... What data do you have on juvenile crime and victimization occurring in the COllnty?
A recent analysis of reported crime regarding juveniles revealed:
• The percentage of juvenile arrests (out of total arrests) increased from 12% in 2006 to 21% in 2010.
• For each year from 2008 through 2010, juvenile victims accounted for approximately 4% of all victims reporting incidents
in the county.
• The percentage of robberies occurring between 11 :00 p.m. and 5:00 a.m. with any juvenile arrest has increased steadily
since 2008. However, the percentage of robberies in that same time period with any juvenile victim has decreased.
• The percentage of assaults occurring between the above hours with any juvenile arrest has increased steadily since 2008,
and the percentage of assaults occurring between those hours with ajuvenile victim has increased.
• The percentage of weapon offenses occurring between the above hours with any juvenile arrest has increased since 2008.
... Don't you think the curfew will cause a loss of revenue to local businesses?
No. Business owners know that groups of rowdy and intimating teens keep their adult customers (who typically spend more) away.
Many adults have expressed fear in the presence of groups of young people who speak loudly and act in athreatening manner.
Businesses in Prince George's County and in the District of Columbia have been supportive of the youth curfews there, according to
the police chiefs in those jurisdictions. Some Montgomery County Chambers of Commerce have already provided their supportive
feedback for the curfew.
... What about other municipalities like Gaithersburg, Rockville, and Takoma Park - are they going along with the
curfew proposal?"
Some municipalities adopt legislation enacted by the County. The governing body of each muniCipality will likely examine the final
proposal and after discussion with their jurisdiGtion's police department make the determination if they will accept the curfew
legislation. Any jurisdiction that does not accept acurfew law may open itself up to becoming a haven for those juveniles who are
seeking a gathering place to cause trouble.
From young people affected by the curfew:
... The curfew doesn't seem fair, why penalize the majority of good teens because of the actions of a few?"
"
We know that the vast majority of our teens are responsible members of our community. That's why with a list of exemptions to
the curfew and the manner in which it will be enforced, the curfew is designed to have a minimum impact on our young people who
aren't causing any trouble. The curfew's purpose is to protect you and adults from becoming victims of crime, as well as to provide
atool for police to prevent crimes committed by minors who are posing athreat to public safety.
As Police Chief Tom Manger said in his testimony before the County Council: "As a parent and a Police Chief, I do not want to limit
the legitimate opportunities for entertainment and interaction for our young people. Nor do I want to stand idly by and not have at
oLir disposal atool which can help us manage situations before they turn ugly."
... Will teens be able to work past the curfew hours?"
"
Yes. If you have a job that requires you to work past curfew hours you are exempt from the curfew law. However, when your work
shift ends, you would be expected to return directly home without making any other stops along the way.
@
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.... "Will kids still be able to go to late-night movies?"
Yes, if the movie begins before the curfew hour. It does not have to end before curfew. The current proposal was never meant to
be the final product. It was presented to get the process started. Input from members of the County Council and the community,
especially our young adult community members, is welcomed as afinal drafting of the law is in process.
The County Executive has proposed an amendment to the bill that would exempt minors attending and/or returning from movies,
concerts, plays, and sporting events.
.... "Will kids be able to stop by an open establishment on their way to a Metro or bus stop after curfew hours?"
The goal
is
compliance with the curfew so try to get what needs to be done prior to the curfew hours. If there is avery particular
reason that causes you to need to make astop on the way home, chances are that will not arouse concern. If you are stopped and
asked your age and purpose of being out past curfew, you just need to comply with an officer's or business owner's direction that
you are in violation of the curfew and continue home.
.... "Why does the curfew law apply to youth under age 18?"
One of the goals of the curfew is to provide police with an additional tool to prevent criminal activity committed by juveniles. A
juvenile does not legally become an adult until age 18. That's why there are restrictions on the sale of alcohol and the purchase of
tobacco products to underage individuals. So it makes sense for the curfew to cover those 17 and under. Once you are 18, adult
laws apply to the offender.
.... "Why can't the County police use the existing laws such as loitering, disorderly conduct, and trespassing,
instead of creating a new curfew law?"
LOitering laws are now strictly drawn to comply with recent court decisions. Loitering is now defined only as blocking an entrance
or exit to a place or area. Disorderly conduct must be observed by the reponding officer. Trespassing laws are not applicable to
public spaces unless that space is explicitly posted as closed between certain hours (such as County parks). The youth curfew is
designed to apply to situations where none of these laws are options.
.... "Don't you think a curfew will foster distrust of police and government by youth?"
No. Young people are providing their input to the proposal; they will have a voice in the final product. Once everyone understands
that the curfew is important to improve everyone's safety, and that its enforcement wilillave little impact on minors who aren't
breaking the law, there should be greater acceptance.
.... "According to the Youth Rights Association, statistical studies don't show a correlation between curfew
enforcement and decreased juvenile crime. So why have a curfew
if
it isn't going to be effective?"
The curfew wasn't proposed based on statistics, it was based on what police are seeing as an emerging concern. We could sit back
and wait until the situation gets worse, but the County Executive didn't want to hold back if there was something that could be more
quickly done that could make everyone safer.
There are avariety of studies on the subject and studies can be found to both support and that disprove the effectiveness of
curfews.
According to a survey by the United States Conference of Mayors, more than 500 U.S. jurisdictions have youth curfews, including
84 percent of cities with populations over 180,000.
A survey by the group of 347 cities with populations over 30,000 found the following:
90 percent of jurisdictions with curfews said that enforcing acurfew was agood use of Police time.
93 percent said a nighttime curfew was a useful tool for police officers.
88 percent said curfews helped make their streets safer for residents.
83 percent said curfews helped to curb gang violence.
While comparisons and cause-and-effect can be difficult, San Antonio saw victimization of youth drop 53 percent after enactment of
a curfew. The rate in Dallas fell 17 percent. In San Diego, violent crime by juveniles dropped by 20 percent and violent crimes
against juveniles fell by 40 percent.
.
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In our region, two of the largest urban areas, the District of Columbia and Prince George's County have curfew laws. So does Baltimore.
Virginia state law allows local jurisdictions the authority to establish curfews for minors between the hours of 10:00 p.m. and 6:00 a.m.
The District of Columbia experienced a50 percent reduction in juvenile victims of violent crime and a 43 percent reduction in
juveniles arrested during curfew hours when a10:00 p.m. curfew was in effect during a2006 crime emergency.
In 2010, the District of Columbia police had 4,326 cases of curfew violations; Prince George's County had 78 cases. In both
jurisdictions this represents only those underage who have refused to go home. Obviously, hundreds and thousands have been told
to go home and complied - and/or complied in the first place by not being out after curfew. Those much larger numbers are not
reflected in the statistics.
The County Executive and Police Chief Tom Manger spoke directly to Washington D.C.'s Metropolitan Police Chief Cathy Lanier
and Prince George's Police Chief Mark Magaw who believe that the youth curfew has been an effective tool in their jurisdictions for
protecting young people. Though, as in Montgomery, there were questions raised at the beginning of the process, the youth curfew now
enjoys broad support and, according to the chiefs, any public comment now tends toward supporting broader use of the youth curfew.
Police have confirmed that minors in neighboring jurisdictions with curfews are entering Montgomery County and getting into
trouble here because there isn't currently a curfew in our county and that issue needs to be addressed
I
f;
~
"Will parents be able to pick up their children at establishments such as fast food restaurants after curfew hours?"
Yes, in a situation where you are unavoidably delayed. It is expected that parents will support the curfew hours and make
arrangements to pick up their children to avoid them being out after those hours. The curfew targets groups of teens in public
places who are engaging in menacing or violent actions. Asmall group of teens eating quietly at a restaurant or waiting to be
picked up by a parent, is not likely to cause anyone to call police.
~
"Why should the government set a curfew, isn't that the right and responsibility of parents?"
Many parents do set and are able to enforce curfews for their children. However, the at-risk teens that this curfew is designed to
prevent getting into trouble frequently resist parental control or belong to challenged families where the parents need additional
support to manage the actions of their children. The curfew can aid parents in carrying out their responsibilities to reasonably
supervise children entrusted to their care. It is important to note again that there has been a de facto motor vehicle operator curfew
in effect for many years now - the curfew simply applies that same concept to pedestrians and people traveling by mass transit.
~
"Can my businesses provide goods and services to teens past the curfew - i.e. sell movie tickets past the curfew;
serve them dinner, etc?"
Businesses are expected to support the curfew by not allowing their property to become a gathering place for groups of teens who
could potentially cause trouble. There will be exemptions to the curfew and owners of entertainment and sports-related businesses
should know those exemptions. A quiet gathering of young people should not pose a problem, but if agroup gets rowdy business
owners can use the curfew in the same way police officers would, as a means to move the troublemakers out of their
establishment. Business managers should not put themselves in harm's way and can also call for police to disperse a group
becoming out of control.
~
"Can my business get into trouble for providing goods and services to teens after the curfew?"
Owners of businesses not exempt from the curfew are obligated to reasonably uphold the curfew. A business owner could be held
legally accountable for knowingly providing a location for an unruly group of juveniles to gather during curfew hours.
~
"Can my business hire a teen when I know that their shift will go beyond the curfew?"
Yes. Teens with jobs are exempt from the curfew.
~
"Should I notify the police
if
teens are coming into my establishment after the curfew without an adult, or notify the
police
if
teens are gathering outside of my business after the curfew?"
Business owners should notify police if a group of underage teens is causing trouble inside their establishment or on their property,
just as they would be expected to do outside of curfew hours.
For more information go to: http://www.montgomerycountvmd.gov/curfew
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AGENDA ITEM
#4
July 11,2006
Action
MEMORANDUM
July 7, 2006
TO:
FROM:
SUBJECT:
County Council
~
Sonya E.
Healy/t;~islative
Analyst
Action: Bil1 15·06, Offenses· Loitering
On April 18, 2006, the Council President, at the request of the County Executive.
introduced Bill 15-06, Offenses· Loitering. The Council held a public hearing on Bill 15-06 on
June 13, 2006 and testimony was provided by the ACLU
9-11). At the public hearing,
Councilmember Subin expressed concern about treating loitering as a criminal offense. The
Public Safety Committee reviewed Bill 15-06 on June 19, 2006, and (2-0) recommended
approval with amendments.
Public Safety Committee Recommendation
As introduced, Bill 15·06 does not regulate all loitering, it only regulates loitering that
interferes, impedes, or hinders the free passage of pedestrian or vehicle traffic or that incites by
words or other conduct imminent unlawful conduct. In response to issues raised by the
ACLU, the Committee recommended removing all references to the term "loitering" and
instead recommended using "disturbing the public peace or disorderly conduct" to
describe prohibited activities. The Committee stated that since loitering, in and of itself, is not
a criminal offense, this reference should be eliminated to remove potential confusion for the
public.
At the request of the County Attorney's Office, the Committee also added "violating
a condition of parole or probation" as a reason for temporary detention (line 70 © 4). This
change is consistent with the Nevada "stop and identify" statute, which
was
upheld by the
Supreme Court in
HUbel
v.
Sixth Judicial District Court ofNevada,
542 U.S. 177 (2004).
In addition, the Committee recommended replacing "orderly" with "lawful" to
describe picketing (line 86. © 5). If the behavior associated with picketirig is unlawful it can be
stopped and prosecuted. The Committee also made technical amendments to Bill 15-06
1-5).
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Baekground
Bill 15-06, drafted by the County Attorney's Office, amends the County's existing
loitering law to more narrowly defme the circumstances under which
(1)
a police officer may
require an individual to produce identification and (2) an individual can be charged with
disturbing the public peace. Both changes are needed
to
assure compliance with constitutional
requirements.
Loitering, vagrancy, and disorderly conduct statutes have been challenged in numerous
jurisdictions and many have been found to be overbroad or unconstitutionally vague. Statues
may be invalidated if they implicate First Amendment rights of freedom of speech or assembly;
however, this does not mean that counties may never enact legislation that may impinge
to
some
extent on the exercise of First Amendment rights. For example, counties are "free
to
prevent
people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or
engaging in countless other forms of antisocial conduct."
Coates
v.
City ofCincinnati,
402 U.S.
611 (1971).
Loitering as a Criminal Violation
Loitering has long been recognized as a criminal violation. Many statutes are based on
the text proposed in the Model Penal Code. According to the Supreme Court in
RUbel
v.
Sixth
Judicial District Court ofNevada,
"statutes are based on the text proposed by the American Law
Institute as part of the Institute's Model Penal Code.
See ALl, Model Penal Code,
§
250.6,
Comment
4,
pp.
392-393
(1980).
The provision, originally designated in
§
250.12, provides that
a person who is loitering 'under circumstances which justifY suspicion that he may be engaged or
about to engage in crime commits a violation if he refuses the request of a peace officer that he
identifY himself and give a reasonably credible account of the lawfulness of his conduct and
purposes.'"
ld.
§
250.12 (1961).
In
some states, a suspect's refusal to identifY himself is a
misdemeanor offense or civil violation; in others, it is a factor to be considered in whether the
suspect
has
violated loitering laws.
In
other states, a suspect may decline to identify himself
without penalty."
RUbel
v.
Sixth Judicial District Court ofNevada,
542 U.S. 177 (2004).
Some jurisdictions, including Maryland, do not have loitering statutes. Maryland has
criminal sanctions for disturbing the peace and disorderly conduct (Maryland Code, Criminal
Law
§
10-201, © 12-13); trespass
(ld.
§
6-402
&
6-403, © 14-15); and refusal or failure to leave
a public building or grounds
(ld.
§
6-409,
©
16).
Under County law the difference between criminal and civil sanctions for a Class B
violation is as follows: a $200 fine and up to 30 days in jail for a criminal violation, and $100
for a first offense and $150 for a subsequent offense for a civil violation. Chief King from the
Police Department told the Committee that it is important for the statute to remain a criminal
violation because there are instances where individuals clearly provide police officers with
incorrect names (i.e. Santa Clause), and the threat of criminal sanctions can often persuade an
individual to provide accurate information. In addition, the State's Attorney can choose to
2
- - - - - - -
...
­
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prosecute a violation as either a criminal or civil offense depending on the facts of a particular
case.
In light of the other Committee recommendations, the Committee recommended
maintaining the statute as a criminal violation.
lIDs packet contains:
Bill 15-06
Legislative Request Report
Memo from County Executive
Fiscal Impact Statement
Testimony from ACLU
Maryland Code Sections
Circle
#
1
6
7
8
9
12
F:\LAW\BILLS\06IS Offenses· Loitering\Action Memo.Doc
3
@
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Bill No.
15-06
Concerning: Offenses -
[[LoiterindD
Disturbing the public peace
or
disordedv conduct
Revised: 6-19-06
Draft No. 4
Introduced:
April 18. 2006
Expires:
October 18. 2007
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date:
~No~n~e~
_ _ _ _ __
ChI _ _,Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council President at the Request ofthe County Executive
AN
ACT
to:
(1) prohibit [[certain types ofloitering]] disturbing the peace or disorderly conduct;
(2) require certain persons to provide a law enforcement officer with the person's name;
(3) prohibit certain activity at certain public places;
(4) impose certain penalties; and
(5) generally amend the County loitering law.
By amending
Montgomery County Code
Chapter 32, Offenses - Victim Advocate
Sections 32-13 through 32-17
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface bracketsD
* * *
Heading or defined term.
Added to existing law
by
original
bilL
Deletedfrom existing law by original bill.
Added
by
amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bil/.
The County Council for Montgomery County, Maryland approves the following Act:
@
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1
2
Sec.
I.
Sections
32-13
through
32-17
are amended as follows:
32-13.
[[Loitering]] Disturbing the public peace or disorderly tonduct ­
Definitions.
[For the purposes of sections] As used in Sections 32-14 [[to)) through 32-17,
3
4
5
the following tenns [shall] have the following meanings [respectively ascribed to.
them in this section]:
6
7
8
9
10
[[Loiter:
To circulate, stand around or remain or to park, or remain parked in
a motor vehicle1 either as an individual or as a member of a group, at a public place
or place open to the public and to engage in any conduct prohibited under this law.
Loiter also means to collect, gather, congregate or to be a member of a group or a
crowd of people who are gathered together in any public place or place open to the
public and to engage in any conduct prohibited under this law.]]
11
12
13
14
15
16
17
18
Place open to the public:
Any place [open to the public or any place to] [(in
which)) where the public is invited or pennitted [and in, on or around any privately
owned place of business, private parking lot or private institution, including places of
worship, cemetery or any place of amusement and entertainment whether or not a
charge of admission or entry thereto is made.
It
includes the elevator, lobby, halls,
corridors and areas open to the public of any store, office or apartment building']1.
including:
19
20
21
W
(hl
~
place
of business;
lot;
~
parking
22
23
24
25
26
(£)
~
place of worship;
@
~
cemetery;
till
ill
~
place
of amusement
[L.
whether or not admission is charged;
and]]~
or
an elevator. lobby, or hallway
[[ill
~
building where the public is
pennitted]]:.
27
Public place:
[Any public street, road, or highway, alley, lane, sidewalk,
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28
29
crosswalk or other public way, or any public resort, place of amusement, park,
playground, public building or grounds appurtenant thereto, school building or school
grounds, public parking lot or any vacant lot.]
30
31
W
Any public way, including
32
33
34
ill
ill
ill
~
~
street, road, or highway;
~
sidewalk:
an alley or lane; [(and]]or
5l
crosswalk.
35
36
(hl
Any public facility, including
37
38
39
ill
ill
ill
ffi
!£)
32-14.
5l
park;
~
playground;
5l
school; [[and]] or
5l
government building.
40
41
Any vacant lot or parcel ofland.
42
43
44
45
[Same] [[Loitering]] Disturbing the DubliS
Deace
conduct- Prohibited conduct.
[(a)
jl[
disorderly
It
shall
be
unlawful for any person to] An individual must not
[[loiter]]
at, on.1 or in a
public place
or
place open to the public
[[in such
manner
~
way that]]:
[(1)]
46
47
W
[To interfere, impede or hinder}
interfere[~ll
with
Q!:
48
49
50
51
hinder[[§]] the free passage of pedestrian or vehicular traffic [
.J;
or
[(2)
To interfere with, obstruct, harass, curse or threaten or to do
physical harm to another member or members ofthe public.
(3)
That]
(hl
incite[l!]] unlawful conduct.
Qy
words or intentional
conduct, [it is clear that there is a reasonable likelihood a breach
of the peace or disorderly conduct shall result] which
is
~
to
produce [[any]] imminent unlawful conduct.
52
53
54
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55
56
57
58
59
[(b)
It shall be unlawful for any person to loiter at a public place or place
open to the public and to fail to obey the direction of a uniformed police
officer or the direction of a properly identified police officer not in
uniform to move on, when not to obey such direction shall endanger
public peace.]
60
61
32-15.
[Same-Identification.] Temporary detention
hI
police officer
2f
aD.
[[personl] individual suspected of criminal behavior.
[It shall be unlawful for any person at a public place or place open to the
public to refuse to identify himselfby name and address at the request of a uniformed
police officer or of a properly identified police officer not in uniform, if the
surrounding circumstances are such as to indicate to a reasonable man that the public
safety requires such identification).
62
63
64
65
66
67
68
£.ru
A police officer may temporarily detain any individual under
circumstances that reasonably indicate that the individual
[[either]]~
69
70
ill
ill
has engaged in conduct prohibited under Section 32-14[[" Qr)]i
~
violated
2r
~
violating
~
condition
Qf
parole
.QI
probation[[J)i
71
72
73
2r
ill
has committed, is committing, or is about to commit
~
crime.
au
A police officer may detain an individual under this Section only to
determine the individual's identity and the circumstances surrounding
[(the)) suspected criminal behavior. Any [[person so]] detained
individual must truthfully identify himself, but must not be compelled
to produce identification or answer any other question from any police
officer.
74
75
76
77
78
79
80
!£l
An individual must not be detained under this Section longer than is
reasonably necessa.n: to achieve the purposes of this Section[[" and in
no case longer than 60 minutes]]:. Unless the individual is arrested,
81
@
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82
83
the detention must not
last
lonaer
:than
~
minutes
or
extend beyond
the place. or the immediate vicinity of the place. where the individual
was first detained.
84
85
32-16.
[Same-] Lawful assembly exempted.
86
87
88
89
90
91
92
Nothing in this Article, except Section 32-23, prohibits [[orderly]] lawful
picketing or other lawful assembly.
32-17.
[Same] [[Loitering]] Disturbing the public peace
or
disorderly
conduct- Penalties,;. Warning.
W
[Any person violating any of the provisions herein shall be subject to
punishment for a class B violation as set forth in section 1-19 of chapter
1 of the County Code.] An individual who violates Section 32-14 or
Section 32-15 has committed
~
Class B violation.
93
94
Lhl
[No person shall] An individual must not be charged with a violation of
[sections 32-13 to 32-16] Section 32-14 or Section 32-15 unless [and
until] the arresting officer has first warned the individual of the violation
and [such person] the individual has failed or refused to stop [such] the
violation.
95
96
97
98
99
Approved:
100
George L. Leventhal, President, County Council
Date
101
Approved:
102
Douglas
M.
Duncan, County Executive
Date
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LEGISLATIVE REQUEST REPORT
Bill 15-06
Offenses - Disturbing the public peace or disorderly conduct
DESCRIPTION:
This bill amends the County's loitering law to more narrowly define the
circwnstances under which an individual may be required to produce
identification and be cited for or charged with disturbing the public peace
or disorderly conduct to ensure compliance with constitutional
requirements.
For many years, Section 32-15, which makes it unlawful to fail or refuse
to identify oneself when requested by a police officer, has been viewed by
judges of the County's circuit and district courts as unconstitutionally
vague. There is also a concern that the loitering prohibition does not
provide a person of ordinary intelligence adequate notice of what conduct
is forbidden by the statute.
To more narrowly define the circwnstances under which an individual
may be cited for or charged with disturbing the public peace or disorderly
conduct. This in turn will adequately advise individuals and police officers
alike of the circwnstances under which an individual may be required to
truthfully provide his or her name to a police officer.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
Department of Police
FISCAL IMPACT:
None
ECONOMIC
IMPACT:
SOURCE OF
INFORMATION:
No fiscal impact.
Marc Hansen, Chief, Division of General Counsel, (240) 777-6740.
William
A.
Snoddy, Associate County Attorney, (240) 773-5004.
APPLICATION
WITHIN
MUNICIPALITIES:
Barnesville, Brookville, Chevy Chase Village, Chevy Chase View, Chevy
Chase Section 3, Chevy Chase Section 5, Glen Echo, Martin's Additions,
North Chevy Chase, Takoma Park
PENALTIES:
Subject to Class "B" violation.
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>•
OFFICE OF THE COUNTY EXECUTIVE
ROCKVlUE. MAR'l"UNO
208~O
Douglas M. Duncan
County Executive
MEMORANDUM
March 2 I, 2006
TO:
George
L.
Leventhal, President
Montgomery County Council
-.....
.
FROM:
SUBJECT:
Douglas M. Dun
,County
~
Executive
~
County Loitering Law - Amendment
Following the Supreme Court's decision in
Hiibel v. Sixth Judicial District,
which
upheld a Nevada "stop and identify" statute, an examination of the County's loitering law
indicates that it may not pass constitutional muster. More specifically, Section 32-15, which
makes it unlawful to fail or refuse to identify oneself when requested by a police officer, has been
viewed by judges of the County's circuit and district courts as unconstitutionally vague. The
Office of the State's Attorney takes the same position. There is also a concern that the loitering
prohibition does not provide a person of ordinary intelligence adequate notice of what conduct is
forbidden by the statute.
I
am now forwarding for Council action expedited legislation to amend Sections
32-13, 32-l4, 32-l5 and 32-17. The proposed amendments will modify the definitions of the
terms "loitering", "public place" and "place open to the public.
>t
This legislation will also more
narrowly define the circumstances under which an individual may be cited for or charged with
loitering. This, in tum, will adequately advise individuals and police officers alike of the
circumstances under which an individual may be required to truthfully provide his or her name to
a police officer.
( look forward to working with the Council on this important matter.
DMD:tjs
Enclosure
c:-
:y:.
cc: Bruce Romer, Chief Administrative Officer
J.
Thomas Manger, Chief, Department of Police
Charles W. Thompson.
Jr.,
County Attorney
ClCJ;'~
O:(i~'
;
Crr:r;·
:z.;::,. :...-:
. ("i
-<
-~-
C-..:
Fr.:'""
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-
OFFICE OF MANAGEMENT
AND
BUDGET
Douglas
M.
Duncan
County Executive
Beverley K. Swaim-Staley
Diredor
MEMORANDUM
May 9, 2006
022588
TO:
George
L.
Leventhal, President .
Montgomery County Council
Bruce Romer
. Chief Administrativ
V[A:
FROM:
r
Beverley
K.
Swaim-Staley,
Direc,o&~
Office of Management and Budget
SUBJECT: Bill lS-06, Offenses - Loitering
The purpose of this memorandum is to transmit a fiscal impact statement to the
Council on the subject legislation.
LEGISLATION SUMMARY
The
bill
amends the County's loitering law to more narrowly define the
circumstances under which an individual may be required to produce identification and
be
cited
for
or charged with loitering to ensure compliance with constitutional requirements.
F!SCAL SUMMARY
The legislation
is
not expected to have an additional fiscal impact on the County.
The following contributed to
and
concurred
with
this
analysis: Nicholas Tucci,
Department of Police. and Dana Brassell, MNCPPC.
BSS:brg
a
0...
::J:
r-->
0
3:
cc:
Nicholas Tucci. Police
Dana Brassell,
MNCPPC
Belinda Bunggay. OMB
Jennifer Bryant. OMB
::z:
>-
0
-<
cz::-r::
(",)or'!
a3:("j
C:rrlfTI
~-«
:Z~-
--I
:x
J:>o,
'n!"'l
W
V1
:r.:
-{
00
c:
co
-<
Office of the Dicectot'
101 Monroe Street. 14th Floor' Rockville. Maryland 208S0 •
240(777-1800
hHp:/Iwww.montgomerycountymd.gov
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Testimony
Of
Robert Coe, Board Member
AClU Chapter of Montgomery County
Before the Montgomery County Council
an
Bill 15-06, Loitering
June 13, 2006
On behalf of the ACLU Chapter of Montgomery County, I would like to
share our reservations about Bill 15-06.
Personal autonomy, what Justice Brandeis famously called "the right to be
let alone,
,,1
is the foundation of our system of limited government. For our
purposes today, that means that the individual has a constitutional right to "loiter,
as defined by Bill 15-06, provided that he is not violating some other law.
In
lay
terms, "just hanging out" is constitutionally protected activity. For this reason,
proposals to criminalize loitering must
be
viewed with a certain skepticism and
carefully scrutinized.
loitering can appropriately be made the premise for a crime only when it
interferes with the rights of others. Bill 15-06 is on solid ground in section 32­
14(a) when loitering is coupled with "interfer[ing1 with or hinder[ing) the free
passage of pedestrian or vehicular traffic." That makes sense because as a
It
1
Olmstead
V.
United States,
277 U.S. 438, 478 (1928).
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matter of fact
loitering can interfere with the ability of others to pass on sidewalks
or streets. But it can only be made a crime when it actually does interfere or
hinder - the real crime is the interference or hindrance, not the loitering by itself.
Indeed, it would be far better
if
the reference to loitering were removed from the
bill. The offense should be interfering with or hindering the free passage of
pedestrian or vehicular traffic - an offense that can be committed by someone
who is lOitering, or by someone who has never loitered.
On the other hand, there is no connection at all between lOitering and
incitement to unlawful conduct, criminalized in section 32-14(b). Indeed, the
active nature of incitement seems quite contradictory'to the passive nature of
lOitering.
There is a large body of law as to when incitement to unlawful conduct
may be criminalized based on the Supreme Court's 1969 decision in
~randenburg
v,
Ohio.
2
The Court held that the state may not "forbid or proscribe
advocacy of the use of force or law violation except where such advocacy is
directed to inciting or producing imminent lawless action and is likely to incite or
produce such action.,,3 Section 32-14(b) requires only that the unlawful conduct
"incites by word or conduct any imminent unlawful conduct," and omits
two
elements required by
Brandenburg:
that the conduct be intentional and that it is
likely to produce the intended unlawful conduct.
VVhile Section 32-14(b) could perhaps be repaired by adding these
missing elements, there is no reason to do so.
As
a
matter of fact,
there is no
/
2
Brandenburg v. Ohio,
395 U.S. 444 (1969).
3
Brandenburg.
395 U.S.
at
447.
2
 PDF to HTML - Convert PDF files to HTML files
connection between lOitering and incitement to unlawful conduct. Loitering adds
nothing to an unlawful incitement.
An
incitement is lawful or not without reference
to whether the accused was loitering.
We urge the Council to delete section 32-14(b), since there is no reason
for it.
As for the offense
of
disorderly conduct or breach of the peace in the
current version of section 32-14, that offense is already more than adequately
covered by the Maryland Criminal Code section 10-201 (c). Once again, it is
irrelevant whether a person was or was not loitering before he engaged in the
conduct that constitutes disorderly conduct or breach
of
the peace
And finally, we have a comment concerning section 32-16:. "Nothing in this
Article, except Section 32-23, prohibits orderly picketing or other lawful
assembly.- We suggest the deletion of the word "orderly.w If picketing is
otherwise unlawful, e.g., it prevents the passage of others on a sidewalk, it can
be enjoined or prosecuted. The statute should not suggest to a judge that she
may apply her own notions of "orderliness" to determine
if
picketing is lawful.
Thank you for your consideration of our views. I would be pleased to
answer your questions.
.
/
3
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CRIMINAL LAw
romptly send the
oughout the State
t shaLL establish a
lent agency of the
:trict Court having
. case for trial and
mitted a violation
19
$25.
; are
$5. (2002,
chs.
§
10-201
(b)
Suspension of fine.
-
If a defendant is found guilty of a violation under
this part and a fine is imposed, a court may direct that the ,payment of the fine
be suspended or deferred under conditions determined by the court.
(c)
Failure to pay.
-Adefendant's willful failure to pay a fine imposed under
this part may be treated as a criminal contempt punishable as provided by law.
(d)
Appeal.
-
A defendant who is found guilty of a violation under this part,
as provided by law for a criminal case, may file:
(1)
an appeal;
(2)
a motion for a new trial; or
(3)
a motion for a revision of a judgment.
(e)
Authority of State's Attorney.
-
The State's Attorney for each county
may:
(1)
prosecute a violation under this part in the same manner as a
prosecution of a criminal case, including entering a nolle prosequi or placing
the case on violation on a stet docket; and
(2)
exercise authority in the same manner prescribed by law for a
violation of the criminal laws of the State.
(2002,
chs.
108, 109.)
SPECIAL REVISOR'S NOTE
Chapters 108 and 109 each added this sec­
tion as
§
10-117 under a new part ·Part II.
Alcoholic Beverage Consumption or Possession
of Open Container in Passenger Area of Motor
Vehicle". However, Ch. 213,
§
1, Acts of 2002,
transferred Article 2B,
§§
22·101 through 22·
108, as enacted by
Ch.
26,
§
4, Acts of 2002, to
be
§§
10-113 through 10-120, under the new
part ·Part II. Alcoholic Beverages Violations".
Precedence in numbering has been given to Ch.
213 as the later enactment.
See
Art. 1,
§
17.
Accordingly, this section appears as
§
10-127.
26,
§
4, Acts of 2002,
to
10-120, under the new
: Beverages Violations'.
~g
has been given
to
Ch.
ment.
See
Art. 1,
§
17.
n appears as
§
10-126.
this part:
Ie defendant to the
Ll
Case;
s prescribed by law
:eived a copy of the
understands those
Editor's note. -
See Editor's note under
§
10-123 of this article.
Subtitle
2.
Disturbing the Peace, Disorderly Conduct, and ReLated Crimes.
§
10-201. Disturbing the public peace and disorderly con';'
duct.
(a)
Definitions.
-
(1)
In this section the following words have the meanings
indicated.
(2) (0 "Public conveyance" means a conveyance to which the public or a
portion of the public has access
to
and a right
to
use for transportation.
(ii) "Public conveyance" includes an airplane, vessel, bus, railway car,
.',.u.,uv',,,
vehicle, and subway car.
(3)
(i)
"Public place" means a place
to
which the public or a portion ofthe
. has access and a right to resort for business, dwelling, entertainment, or
lawful purpose.
(ii) "Public place" includes:
1.
a restaurant, shop, shopping center, store, tavern, or other place of
2. a public building;
3. a public parking lot;
:t the defendant;
mt's own behalf;
~ndant
chooses to do
; own selection and
uilty;
e the defendant on
: is permitted by law
171
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§
10-201
ANNOTATED CODE OF MAR"r1..AND
4. a public street, sidewalk, or right-of-way;
5. a public park or other public grounds;
6. the common areas of a building containing four or more separate
dwelling units, including a corridor, elevator, lobby, and stairwell;
7. a hotel or motel;
8. a place used for public resort or amusement, including an amuse­
ment park, golf course, race track, sports arena, swimming pool, and theater;
9. an institution of elementary, secondary, or higher education;
10. a place of public worship;
11. a place or building used for entering or exiting a public convey­
ance, including an airport terminal, bus station, dock, railway station, subway
station, and wharf; and
12. the parking areas, sidewalks, and other grounds and structures
that are part of a public place.
(b)
Construction of section.
-
For purposes of a prosecution under this
section, a public conveyance or a public place need not
be
devoted solely
to
public use.
(c)
Prohibited.
-
(1) A person may not willfully and without lawful purpose
obstruct or hinder the free passage of another in a public place or on a public
conveyance.
(2) A person may not willfully act in a disorderly manner that disturbs the
public peace.
(3) A person may not willfully fail to obey a reasonable and lawful order
that a law enforcement officer makes to prevent a disturbance to the public
peace.
(4) A person who enters the land or premises of another, whether an
owner or lessee, or a beach adjacent
to
residential riparian property, may not
willfully:
(i)
disturb the peace of persons on the land, premises, or beach by
making an unreasonably loud noise; or
(it)
act in a disorderly manner.
(5) A person from any location may not, by making an unreasonably loud
.(orm er reference
•duded in the co
"vessel".
'. Also in subsecti
(onner reference \
light of the
COD
.sChool vehicle".
In subsection (:
!
,
t
I
!
noise, willfully disturb the peace of another:
(j)
on the other's land or premises;
(ii)
in a public place; or
(iii)
on a public conveyance.
(6) In Worcester County, a person may not build a bonfire or allow a
bonfire to burn on a beach or other property between 1 a.m. and 5 a.m.
(d)
Penalty.
-
A person who violates this section is guilty of a misdemeanor
and on conviction is subject
to
imprisonment not exceeding 60 days or a fine not
exceeding $500 or both.
(An.
Code 1957, art. 27,
§
121; 2002, ch. 26,
§
2.)
REVlSOR'S NOTE
This section is new language derived without
substantive change from former Art.
27.
§
121.
Subsection (b) of this section
is
revised as a
construction provision for clarity.
In subsection (a)(2)(i) and
(3)m
of this
sec­
tion, the former references to the "general"
public are deleted as unnecessary.
In subsection (3)(2)0i) of this section. the
University
of
For note, "Constil
ment Freedom of:
'Loud and Unseer
tral
Regulation ,
BaIt.
L.
Rev.
507
Constitutiona
prior similar vel
makes it unlawf.
turb any neighho
town or county
b~
constitutional
wh
the volume level
First Amendment
tution. Eanes v.
~
604
(1990), cert.
d
3218. 110
L.
Ed. :
This
section
is ,
10red to serve a s
does not inhibit
t
channels of comm
Md. 436, 569
A.21
U.S.
938, 110 S.
(1990).
Language prj
embrace only
1
Nawrocki. 15 Md.
denied,
266
Md. :
And
they
do
I
pression. In
re
289 A.2d 846,
eel'
The statutes
pI
cannot apply to
offensive, that
is
Fourteenth
Ame!
Md.
App.
252, 2E
Md.
741 (1972).
Whether the
"I.
"an unreasonabl:
the statutes are .
expression depen
of them,
a
quest
facts
of
the partit
Md. App. 252. 2f
Md.
741
(1972).
Construction.
proscribed two gE
about
any
publit
disorderly mann
publiC peace ma:
one indecently
e
prohibited. or by
172
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CRIMINAL LAW
; §
6-402
i:ntifieation plate
(c)
Vehicle.
- "Vehicle" has the meaning stated in
§
11-176 of t4e Transpor­
tation Article.
REVISOR'S NOTE
dion is guilty of a
not exceeding 18
n.
(An.
Code 1957.
This subsection is new language derived
without substantive change from former Art.'
27.
§
576(cl(l)(il.
Because the term "off-road vehicle" as for­
merly defined applied to on-road as well as
off-road vehicles. contrary to standard usage,
the revision of this subtitle uses the newly
defined term "vehicle" as well as the redefined
term "off-road vehicle"
in
instances where the
former defined term "off·road vehicle" was used.
(d)
Wanton.
- "Wanton" retains its judici.ally determined meaning.
See
General Revisor's
REVISOR'S NOTE
§
1-101
This subsection formerly was Art.
27.
§
576{d).
No changes are made.
(An.
Code 1957, art. 27,
§
576(a), (e)(l), (d); 2002, ch. 26,
§
2.)
Arrest in violation
of
Fourteenth
Amendment. -
An
arrest under former sec­
tion
577,
article
27,
by
an
amusement park's
special policeman, acting under color of his
dual authority
as
a deputy sheriff, is State
action in enforcing segregation in violation of
the Fourteenth Amendment. Griffin v.
Ml!-ry~'
land,
378 U.S. 130,84 S. Ct. 1770, 12 L. Ed. 2d
754 (1964).
lye
the meanings
I
I
i
!
§
6-402. Trespass on posted property.
Ca)
Prohibited.
- A person may not enter or trespass on property that is
posted conspicuously against trespass by:
(1)
signs placed where they reasonably may be seen; or
(2) paint marks that:
(i)
conform with regulations that the Department of Natural Resources
adopts under
§
5-209 of the Natural Resources Article; and
(li)
are made on trees or posts that are located:
1. at each road entrance to the property; and
2. adjacent to public roadways, public waterways, and other land
adjoining the property.
(b)
Penalty.
- A person who violates this section i.s guilty of a misdemeanor
and on conviction
is
subject to imprisonment not exceeding 90 days or a fine not
exceeding $500 or both.
(An.
Code 1957, art. 27,
§
577(a)(1),
(b); 2002, ch. 26,
§
2.)
REVISOR'S NOTE
1
I
I
!
1
notorized vehicle
Hately over land,
n.
1
j
~
as off-road vehicles.
:Iusion of any
~boat,
'cement vehicles•..."
vehicle" as formerly
Jpe provision in each
~re
the term
~off-road
404 and 6-405 of this
This section
is
new language derived without
substantive change from former
Art. 27.
§
577(a){I)
and (bl.
In
the
introductory language ofsubsection (a)
of this section, the reference to property being
POSted against "trespass"
is
substituted for the
former reference 'to property being posted
against "trespassers" for clarity and consis­
tency within this subtitle.
In subsection (a)(
1)
of this section, the phrase
placed where they reasonably may
be
is substituted for the former phrase
-{sligns where they may reasonably be seen
w
to
clarify that the requirement that signs be
posted conspicuously applies to the location as
well as the content of the signs.
In subsection (a)(2Xil. the reference
to
regu­
lations that the Department of Natural
Re­
~signs
seen~
421
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§
6-403
ANNOTATED CODE OF MARYLAND
sources adopts 'under
§
5·209 of the Natural
Resources
Article~
is
added for clarity.
For the statutory requirement that the De·
partment of Natural Resources adopt regula·
tions that prescribe the type and color of paint
to be used for posting private property under
the .provisions of this
209(e).
A!;
to the content ·of
COMAR
08.01.05.01.
Defined term:
"Person"
JdaI'Y
whether publi·
the navigation
·
156 (198H.
land Law Re
Maryland Law Review. - For note dis·
cussing whether public works projects should
anchor the navigation servitude, see 41 Md.
L.
Rev.
156 (1981).
.
University
oC
Baltimore
For note, "The 19'17 Maryland
Electro,!)ic Surveillance Act; see
7
Rev.
374 (}978).
.Je
§
6-403. Wanton trespass on private property.
(a)
Prohibited
-
Entering and crossing property.
-
A person may not.·
or cross over private property or hoard the hoat or other marine
another, after having been notified by the owner or the owner's agent
.
so, unless entering or crossing under a good faith claim of right or
ownershl~r;>
(h)
Same
-
Remaining on property.
-A
person may not remain on
pJivate
property including the hoat or other marine vessel of another, after
having
heen notified by the owner or the owner's agent not
to
do s o . '
;~
..
(c)
Pe~alty.
-
A
person who violates this section is guilty of a
misdemeftJi~k
and on conviction is suhject
to
imprisonment not exceeding 90 days or a fine
exceeding
$500
or both.
.
(d)
Construction of section.
-
This section prohibits only wanton entry on
private property.
(e)
Applicability to housing projects.
-
This section also
appli~
to
pro~
that is used
as
a housing project and operated hy a housing authority or, State
public body, as those terms are defined in Article
44A
of the Code, if
an
authorized agent of the housing authority
or
State public body gives the
required notice specified in subsection
(a)
or (b)
of
this section.
(An.
Code
1957,
art.
27,
§
577(a)(2), (b); 2002,
ch. 26.
§
2.)
not
· University oC
Balt
..
oui
"The
1977 M:
.
~~n'ic
Surv
eillanc
· ReV
374 (1978) .
..wanton". -
Want
b
extreme recklessn;
rights of others.
171
A.2d
717
422,
S
groundS, 378 U .. 13(
· 2d 754
(1964).
The criminal tresp
that the
pu~tive
trl!!
ton"
stands
m
mark
trespass. In re
J
aso
456.733
A.2d. 351
(~
Construction
W1
accommodations
la~
(see
now this sect..
Bnd both be
exe,:u~!
repugnant and
III
Ir
State, 236 Md.
356~
Notification. ­
a
notification to sta
occasion
does
not
occasions
in
the
!
buildings and grow
§
6-404. Us
(a)
Scope
of
(1) a
vess'
(2)
a roilil
(3)
a farre
REVISOR'S NOTE
This section new language derived without
substantive change from former Art.
27.
§
577(a)(2)
and
(b).
In subsection
(a)
of this section, the former
references to "land" and "premises' are deleted
as included in the reference to ·private proper·
ty".
• Also in subsection (a) of this section. the
former reference
to
being "duly' notified is
deleted as surplusage.
In subsection (d) of this section. the reference
to
entry ·on private property' is added for
clarity and consistency with subsection (a) of
this section. Correspondingly. the reference to
·private property' is substituted for the former
reference to "land'!.
,S
In subsection (e) of this section, the former
reference to
a
'duly~
authorized agent
is
deleted
as implicit in the reference
to
an "authorized
agent".
The Criminal Law Article Review Committee
notes, for the consideration of the Generlll
A!isembly, that subsection (d) of this section
appears
to
prohibit only "wanton" entry onto
private property, but not ·wanton[ly)" remain­
ing on private property after being notified not
to do so.
Defined terms:
"Person'
"Wanton"
§
1·101
§
6·401
purposes, or c
moving;
(4)
earth
(5)
a law
being used fo:
(b)
Prohibi
driveway, a p!
unless the pe
owner or ten
(c)
Penalt,
and on convi!
exceeding
$f
2002,
ch. 26
This section
substantive c
§§
576(c)(Z)
aJ
422
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I
CRIMINAL LAW
§'
6409
§
HOI
§
6-401
Uaiversity of Baltimore Law Review. -
For note, "The 1977 Maryland Wiretapping and
Electronic Surveillance Act: see 7 U. BaIt. L.
Rev. 374 (I978).
§
6-409. Refusal or failure to leave public building or
on other
1770, 12 L. Ed.
~v'd
grounds.
(a)
Prohibited
-
During regularly closed hours.
- A person may not refuse
or fail
to
leave
a
public building or grounds. or a specific part of a public
building or grounds. during the time when the public building or grounds, or
specific part of the public building or grounds. is regularly closed to the public
if:
(1)
the surrounding circumstances would indicate to a reasonable person
that the person who refuses or fails
to
leave has no apparent lawful business
to
pursue at the public building or grounds; and
(2)
a regularly employed guard, watchman, or other authorized employee
of the government unit that owns, operates, or maintains the public building
or grounds asks the person to leave.
(b)
Same
-
During regular business hours.
- A person may not refuse or
fail
to
leave a public building or grounds. or a specific part of a public building
or grounds, during regular business hours if:
(1)
the surrounding circumstances would indicate
to
a reasonable person
that the person who refuses or fails
to
leave:
. (i)
has no apparent lawful business to pursue at the public building or
grounds; or
(ii)
is
acting in a manner disruptive of and disturbing to the conduct of
nonnal business by the government unit that owns, operates, or maintains the
public building or grounds; and
.
(2) an authorized employee of the government unit asks the person
to
leave.
(c)
Penalty.
- A person who violates this section is guilty of a misdemeanor
and on. conviction
is
subject to imprisonment not exceeding 6 months or a fine
not exceeding $1,000 or both.
(An.
Code 1957, art. 27,
§
578(a), (b>, (d); 2002,
ch.26,
§
2.)
,
REVISOR'S NOTE
This section is new language derived without
substantive change from fonner
Art.
27,
§
578(a), (b), and (d).
·le
area of a
ard. or law
ea.
isdemeanor
:>r
a
fine not
002, ch. 26,
, section, the
;ubstituted for
~a
for clarity.
§
1·101
Ling pri.
~her
for the
~
enclosure
lening.
sdemeanor
,r a fine not
)02, ch. 26,
or
enc1osure~
§
1-101
In the introductory language ofsubsection
(a)
of this section, the reference to "the time is
substituted for the fonner reference to «those
hours of the day or nightft for brevity.
In subsection (a)(1) and the introductory lan­
guage of subsection (b)(U of this section. the
references to the person Mwho refuses or fails to
leave are added for clarity.
In
subsections (a)(2) and (b)(l)(iil and (2) of
this
section, the phrase "government unitft is
fl
fl
substituted for the former pnrase "public
agency or institutionft for consistency witnin
this article.
See
General Revisor's Note to arti·
c1e.
In subsection (b)( l)(ii) of this section, the
reference to "grounds is substituted for the
former reference to "property" for consistency
within this section.
fl
Defined tenn:
"Person
fl
§
1-101
427
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Isiah
Leggett
County Executive
Marc P. Hansen
County Attorney
MEMORANDUM
TO:
Kathleen Boucher
Assistant Chief Administrative Officer
Marc P. Hansenl'Y1d4.e-
County Attorney
VIA
H~
FROM:
Edward
B.
Lattner
Chief, Division of Human Resources
&
Appeals
November 14,2011
Bill 35-11,
Offenses-Loitering or Prowling-Established
t
B
1:­
DATE:
RE:
Bill
35-11
would prohibit certain loitering and prowling, defined as "remain[ing]
in
a
public place or establishment at a time or in a manner not usual for law-abiding persons under
circumstances that warrant ajustifiable and reasonable alarm or immediate concern for the safety
of persons or property in the vicinity."
Bi1135-11 is based on
§
250.6 ofthe Model Penal Code. Laws based on the
§
250.6 ofthe
. Model Penal Code, have met with mixed results in the appellate courts. Courts in Oregon,
Washington, Idaho, and the United States Court of Appeals for the Eighth Circuit (reviewing an
Omaha, Nebraska law), have found those laws to be unconstitutional, while courts in Florida,
Georgia, and Wisconsin have upheld those laws. Even the Florida court acknowledged that its
loitering and prowling statute "reaches the outer limits of constitutionality and must
be
applied
with special care."
Although open to reasonable debate, we believe that it is more likely
than
not that the
Maryland Court ofAppeals would find Bill 35-11 unconstitutional, because it vests a police
officer with virtually unfettered discretion to determine whether a person is committing the crime
of loitering and prowling. We believe that the Court of Appeals' analysis would be heavily
influenced by the impingement Bill 35-11 places on the otherwise constitutionally protected right
. of a person to move about
in
a public place.
101
Monroe Street, Rockville, Maryland
20850-2580
(240) 777-6735. TID (240) 777-2545 • FAX (240) 777-6705.
Edward.Lattncr@montgomerycountymd.gov
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Kathleen Boucher, Assistant Chief Administrative Officer
November 14, 2011
Page 2
Background
Loitering laws have a long and checkered history in American jurisprudence. These laws
typically permit the arrest of individuals suspected of having committed or of being about to
commit a criminal offense, but they require little or no proof of actual misconduct by the
accused. The Model Penal Code's loitering and prowling statute was an attempt to fashion a
cOnstitutional loitering statute, narrowly designed to reach only alarming loitering. Model Penal
Code Commentary 388. This approach has not gained universal approval in the courts.
l
Courts finding loitering and prowling laws unconstitutional.
In
State
v.
Bitt,
798 P .2d 43 (Idaho 1990) the Idaho Supreme Court affinned the dismissal
of a criminal complaint charging a violation of Pocatello, Idaho's loitering and prowling statute
fmding that the statute was unconstitutionally vague on its face, violating the Due Process Clause
of the Fourteenth Amendment. The statute, like Bi1135-11, provided that a person could not be
arrested or convicted unless he fails to identify himself and offer an explanation of this presence
and conduct which dispels the police officer's alarm. The court concluded that this vague
language vested ''virtual complete discretion in the hands of the police to determine whether the
suspect has satisfied the identification and explanation provisions" of the statute.ld. at 48-49.
The court likened this provision to the California stop and identify law the Supreme Court found
unconstitutionally vague in
Kolender
v.
Lawson,
461 U.S. 352 (1983). The California statute at
issue in that case
was
unconstitutionally vague, because it failed to clarify what was
contemplated by the requirement that a suspect provide a credible and reliable identification
upon request and therefore vested complete discretion in the hands of the police to determine
whether the suspect had satisfied the statute and was therefore free to go in the absence of
probable cause to arrest. The Court further held that the statute implicated consideration of the
constitutional right to freedom of movement. The Idaho court also found the statute violated the
Fourth Amendment because it criminalized "behavior which amounts to nothing more
than
the
type of suspicious conduct which justifies a
Terry
stop.,,2
ld.
at 49. This made the Idaho statute
similar to the Texas stop and identify statute the Supreme Court invalidated on Fourth
Amendment grounds in
Brown
v.
Texas,
443 U.S. 47 (1979); the Texas statute permitted the
police to stop an individual without any specific, objective facts establishing reasonable
suspicion to believe that the individual was involved in criminal activity.
In
City o/Bellevue
v.
Miller,
536 P.2d 603 (Wash. 1975), the Washington Supreme Court
1
These
laws usually outlawed vagrants, rogues, vagabonds, and "idle and disorderly persons."
A
Terry
stop is a term that takes
its
name from
Terry v. Ohio,
392 U.S. 1 (1968)
in
which the Supreme
Court concluded that a police officer could constitutionally stop a person for a brief investigative detention where
the officer has articulable suspicion that the person is involved with criminal activity (but not probable cause for an
arrest). The police officer may also frisk that person for weapons where the officer reasonably suspects that the
person is armed and presents a danger to the officer or others.
2
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Kathleen Boucher, Assistant Chief Administrative Officer
November 14,2011
Page 3
reversed the defendant's conviction under a city wandering or prowling statute because that
statute was unconstitutionally vague on its face. That statute, again based upon
§
250.6 of the
Model Penal Code, prohibited wandering or prowling "in a place, at a time, or in a manner and
under circumstances, which manifest an unlawful purpose or which warrant alarm for the safety
of person or property in the vicinity." The court wrote that "legislation which purports to define
illegality by resort to such inherently subjective terms as 'unlawful purpose' or 'alarm' permits,
indeed requires, an
ad hoc
police determination of criminality."
Id.
at 607. And although it did
not specifically identify the Fourth Amendment as a touch point, the court expressed concern
that the statute permitted an officer to arrest an individual who engages in suspicious or
questionable behavior.
Id.
at 607-08. Finally, the court noted that the Model Penal Code treated
loitering and prowling as a "violation," a non-criminal act, while the city statute provided
criminal penalties for its violation.
In
City ojPortland
v,.
White,
495 P.2d 778 (Or. App. 1972), the court upheld the
dismissal of a charge under Portland, Oregon's loitering and prowling statute, concluding that
the statute was unconstitutionally vague.
Enforcement of an unconstitutional statute can not only lead to a reversal of a criminal
conviction, but also an award of damages against the enforcing government and officer. In
Fields
v. City ojOmaha,
810 F.2d 830 (8
th
Cir. 1987), the Eighth Circuit found Omaha, Nebraska's
loitering and prowling statute unconstitutionally vague on its face and remanded the case to the
trial court for a determination of compensatory and punitive damages. Specifically, the court
found that the identification and explanation provisions vague, based upon the Supreme Court's
decision in
Kolender.
The court also concluded that the arresting officer violated the Fourth
Amendment when he stopped and detained Fields in the absence of articulable suspicion of
criminal activity. Moreover, the arresting officer was not entitled to qualified immunity because,
at the time of the arrest, it was clearly established thai an officer could not stop and detain an
individual absent reasonable suspicion of criminal activity.
Id.
at 835-36.
Finally, faced with Indianapolis' loitering and prowling law, the United States Court of
Appeals for the Seventh Circuit abstained from deciding the issue, concluded that it was best
resolved by the Indiana state courts.
Waldron
v.
McAtee,
723 F.2d 1348 (7
th
Cir. 1983). In so
doing, the court acknowledged that the law was vague, but not "so hopelessly vague that no feat
of interpretation could save it from being invalidated as an undue burden of freedom of speech
and assembly."
Id.
at 1352. Because only a state court can authoritatively interpret
its
own
statutes, the court abstained from deciding the matter in order to permit the state court to put a
gloss on the ordinance "and maybe save the ordinance from being struck down."
!d.
at 1353.
Courts
upholding loitering and prowling
laws.
While Florida has upheld the constitutionality of its state loitering and prowling statute, it
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Kathleen Bo.ucher, Assistant Chief Administrative Officer
No.vember 14,2011
Page 4
has do.ne so. by interpreting the statute to. require an imminent breach o.f the peace o.r imminent
threat to. public safety befo.re an arrest can be made.
In
D.A.
v.
State,
471 So..2d 147 (Fla. Dist.
Ct. App. 1985), the co.urt no.ted that there are two. elements to. a lo.itering and pro.wling charge:
(1) that the defendant lo.itered o.r prowled in a place, at a time, o.r in a manner no.t usual fo.r law­
abiding individuals and (2) such lo.itering to.o.k place under circumstances that warrant a
justifiable and reaso.nable alarm o.r immediate concern fo.r the safety o.f perso.ns o.r pro.perty in the
vicinity.
fd.
at 150. "The gist o.fthe first element is aberrant
and
suspicio.us criminal co.nduct
which comes clo.se to., but falls sho.rt o.f, actual co.mmissio.n o.r attempted co.mmissio.n o.f a
substantive crime."
fd.
at 151. As to. the seco.nd element, which the court described as the heart
o.f the o.ffense, the state mustestablish that the behavio.r described in the first element "must be
alarming in nature; that is, it must threaten the physical safety o.f perso.ns in the area or the safety
o.f property in the area." The court co.ncluded:
"It
must, in a wo.rd, amo.unt to. an imminent breach
o.f the peace o.r an imminent threat to. public safety.,,3
fd.
at 152. The court co.nceded that while
this second element is akin to. the type o.f co.nduct that justifies a temporary investigative
detentio.n (a
Terry
sto.p), "a much greater sho.wing o.f alarm o.r concern" is required under the
lo.itering and prowling statute."
fd.
at 153. "Stated differently, the statute must no.t be applied so.
as to. criminalize co.nduct which amo.unts to. no.thing mo.re than a basis to. temporarily detain o.r
arrest a perso.n fo.r co.mmitting some o.ther crime."
fd.
at 153. Even with this judicial glo.ss, the
Flo.rida has ackno.wledged that "the statute, altho.ugh constitutio.nal, plainly reaches the o.uter
limits o.f Co.nstitutio.nality and must be applied by the co.urt 'with special care so. as to avo.id
unCo.nstitutio.nal applicatio.ns.
fd.
at 153.
The Georgia lo.itering and pro.wling law is patterned after the Flo.rida law and the Geo.rgia
Supreme Co.urt has upheld the law as co.nstitutio.nal based upon Flo.rida case law.
Bell
v.
State,
313 S.E.2d 678 (Ga. 1984).
Finally, the Wisconsin Supreme Co.urt upheld Milwaukee's lo.itering and pro.wling law
against vagueness, o.verbreadth, and Fo.urth Amendment challenges.
City
ofMilwaukee
v.
Nelson,
439 N. W.2d 562 (1989). The co.urt determined thelaw was no.t unconstitutio.nally vague
because "it pro.vides sufficient no.tice and guidelines to. law enfo.rcement o.fficials, judges, and '
o.rdinary citizens by limiting the term 'lo.iter' in scope, place, o.r purpo.se."
fd.
at 448. The co.urt
concluded the law was no.t o.verbro.ad because it "is no.t aimed at co.nstitutio.nally pro.tected
co.nduct but at co.nduct which causes alarm fo.rthe safety o.fperso.n o.r pro.perty."
fd.
at 453.
Conclusion
Altho.ugh pro.gno.sticatio.n o.fho.w the Maryland Co.urt o.f Appeals might view a 10.itering
and pro.wling statue based o.n the Mo.del Penal Co.de is an inexact science, we believe that the .
By applying this judiCial gloss to the statute, the conduct prohibited by the loitering and prowling law
becomes substantially similar to disturbing the peace/disorderly conduct already prohibited by Maryland law. Md.
Code An.. Crim. Law
§
10-201 and Montgomery County Code
§
32-14.
3
I··
1
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Kathleen Boucher, Assistant Chief Administrative Officer
November 14, 2011
PageS
Court of Appeals would fmd the reasoning of the Idaho Supreme Court sounder than the opinion
of the Florida Supreme Court. Bill 35-11 vests a police officer with "virtual complete discretion .
. . to determine whether the suspect has satisfied the identification and explanation provisions" of
the statute.
State
v.
Bitt,
798 P.2d at 48-49.
In
Ashton
v.
Brown,
339 Md. 70 (1995), the Court of Appeals struck down Frederick
City's curfew law because
it
provided for an exception for events supervised by a "bona fide
organization", a term the Court found to be unconstitutionally vague. The Court concluded,
In addition, the curfew ordinance 'fails to provide legally fixed
standards and adequate guidelines for [those] ... whose obligation it is
to
enforce, apply and administer the penal laws.' [citation omitted].
In
the
present case, Chief Ashton purported to implement the curfew enforcement
action at the Rainbow on the basis of his singular determination that a 'bona
fide organization' was one without a profit-making motive. The Frederick
ordinance provided no clear standards within which the Police Chief was
obliged to act.
Id.
at 93.
Bill 35-11 presents the same problem for County police-there are no clear standards for a
police officer to follow in determining whether a suspect has dispelled the officer's alarm. We
believe that the Court of Appeal's concern over the broad discretion granted a police officer
under Bill 35-11 will be heightened by the impingement this law places on the otherwise
constitutionally protected right to move about in a public place.
See Kolender
v.
Lawson, 461
U.S. 352.
Finally, Bill 35 -11 contains two inherently contradictory provisions.
On
one hand
subsection (c) pennits an offIcer to arrest a person who flees without giving the person an
opportunity to dispel the alarm ofthe officer. On the other hand, subsection (e) provides that a
person must not
be
charged with a violation of the statute unless the officer has first warned the
person and the person has refused to stop the violation. These provisions raise the possibility that
an officer could arrest a person but no charges could be brought against the person.
If you have any concerns or questions concerning this memorandum please call us.
Cc:
Thomas Manger, Chief ofPolice
Bob Drummer, Senior Legislative Attorney
eb1
All-01677
M:\Cycom\ Wpdocs\D014\P014\00226042.JX)C
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Facts Sufficient to Convict for Loitering or Prowling under Model Penal Code
1. Bell v. State,
Supreme Court of Georgia, 313
S.E.2d
678, 679 (1984)
Quoted facts:
The defendant was convicted under
o.C.G.A.
§
16-11-36
(Code Ann.
§
26-2616) for
"loitering and prowling." The evidence at trial showed that the arresting officer, a veteran patrol
officer in the downtown Atlanta area, observed, near midnight, the defendant and another man
squeezing between the wall and a locked gate of the Davison's parking garage in order to exit the
garage. When the officer attempted to question the men, the defendant's companion fled. The
defendant immediately halted and gave no resistance. After the defendant's companion was
apprehended, the arresting officer advised both men of their rights under
Miranda
v.
Arizona,
384 U
S. 436 (86 SC
1602,
16
LE2d
694) (1966),
but did not place them under arrest. The
officer then inquired whether they would like to explain why they were exiting the parking
garage by squeezing through a locked gate. The defendant responded they were taking a short­
cut through the garage.
The arresting officer testified that he believed this to be an unreasonable explanation as the
defendant would have had to enter the garage from Carnegie Street, walk 150 feet to the
stairwell, go down two flights of steps, then walk another 250 feet to the point where he could
squeeze by the locked gate. The officer expressed his opinion that this path did not amount to a
short-cut, but, in fact, required far greater effort on the part of the defendant than if he had
simply travelled the sidewalk to his intended destination. The officer then placed the defendant
and his companion under arrest. The officer testified the arrest was made due to his concern for
the safety of the vehicles parked in the Davison's garage.
I
1 This evidence shows Davison's was not open at the time of arrest, but that the parking
garage remained open to serve the hotel district trade. Four cars were parked on the level
from which the defendant was observed exiting.
2. O'Hara v. State, Georgia Court ofAppeals,
528
S.E.2d
296, 856-857
(2000)
Quoted facts:
The evidence, when viewed in that manner, established that at about 5:00 a.m., two men robbed
a convenience store clerk at gunpoint. The clerk identified O'Hara as the robber who pointed a
pistol at him from the doorway. The victim described the perpetrators' race, height, and clothing
to police and stated that both had worn shiny, black pants made from either a nylon or silk
material. After robbing the store, the two men immediately fled on foot. Within two minutes of
the clerk's 911 call, police began responding. One officer spotted two males who fit the broadcast
description of the robbers behind a nearby apartment complex. When this officer directed a
spotlight toward them, the suspects fled. He recovered a .32 revolver from the ground where the
suspects had been standing moments before. The victim believed this gun was the weapon used
in the robbery.
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Meanwhile, by chance, Willie Smith, a corrections officer, was in the immediate vicinity where
the perpetrators had fled. Smith was in the process of demonstrating his wife's newspaper route
to a friend scheduled to assume the route temporarily. After marking a curb, Smith stood up and
then noticed a young man, later identified as O'Hara, standing a few feet away. When O'Hara
asked for a ride to a specified location, Smith told him ifhe could wait until he finished marking
his route, he would drop him off close to that area. After O'Hara climbed into the bed of the truck
and lay down, Smith asked him, "if he'd done anything crazy," "robbed anybody or shot anybody
or anything like that." O'Hara denied doing so. With increasing concern for his personal safety,
Smith suggested they approach a policeman who was searching in a nearby field. But O'Hara
responded, "no, just get me out of here."
Partially because of the anxiety O'Hara displayed, Smith flagged down an officer driving toward
him. Noticing that Smith was motioning toward the rear of his truck, Officer Joel McNeal saw
O'Hara peering up at him. Officer McNeal also noticed that O'Hara was sweating profusely and
that his clothing was dirty and tom. After O'Hara leaped out of the truck bed and "hit the ground
running," the officer drew his weapon. O'Hara continued to flee, although he eventually
complied with the officer's repeated commands to stop. O'Hara had abrasions and marks on his
hands, consistent with being jabbed by a chain
link
fence. O'Hara was apprehended within three
city blocks of the site of the robbery.
Another officer began studying certain footprints newly formed in some dew and extending from
a footpath. According to the officer, this trail was about 150 to 200 yards from the location of the
robbery. Although unable to take a casting from the wet grass, police were convinced that the
tread on O'Hara's tennis shoes provided a match. Upon tracing the footpath, an investigator
discovered a pair of discarded black nylon pants with a small cut by the right pocket.
1. O'Hara contends that the evidence was insufficient to support his conviction for loitering.
3. Watts v. State,
Supreme Court of Florida, 463
So. 2d 205 (1985)
Quoted facts:
At Watts' trial for loitering and prowling the state presented testimony that a police officer had
observed Watts in the early evening hours of November 6, 1982 looking into cars in a restaurant
parking lot. Watts walked away as the officer approached him. The officer returned to the
parking lot a few minutes later and found Watts again engaged in peering into the parked cars.
Watts then ran from the area and eluded a police search. When Watts testified at trial, he stated
that he knew nothing about the incident related by the police officer. The county court found
Watts guilty of violating
section 856.021
and sentenced him to sixty days in the county jail.
2
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