Agenda Item 7
November 15, 2011
Public Hearing
MEMORANDUM
TO:
FROM:
SUBJECT:
Public Safety Committee
(\
Robert H. Drummer, Senior Legislative Attorney
Puv,,"t;
Established
Public Hearing:
Bill 35-11, Offenses - Loitering
or
Prowling
Expedited Bill 35-11, Offenses
Loitering or Prowling - Established, sponsored by
Councilmembers Andrews, Leventhal, and Rice is scheduled to be introduced on October 25,
2011. A Pub ric Safety Committee worksession is tentatively scheduled for November 17 at 9:00
a.m.
Background
Bill 35-11 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
I
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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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.
Similar laws based upon the Model Penal Code have been upheld in Georgia,2 Florida,3
and Wisconsin.
4
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 of
2
o.C.C.A.
§
16-11-36 (20Il)
Fla. Stat.
§
856.021
(2011)
4
Milwaukee
City
Ordinance
§
106-31
3
2
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Florida,
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,6 and Idah0
7
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
Executiv~'s
proposed enforcement of the curfew is susceptible to arbitrary or discriminatory enforcement.
We could not find any Maryland appellate court decisions reviewing a similar law for vagueness.
We understand that the County Attorney's Office is currently reviewing Bill 35-11 for legal
sufficiency.
2. How would the
Bill
be enforced?
To determine 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.
Bellevue
v.
A'filler,
85
Wn.2d
539; 536
P.2d
603 (1975)
6
Portland
v.
White,
9 Ore. App. 239; 495
P.2d
778 (1972)
i
State
v.
Bitt,
118 Idaho 584; 798
P.2d
43 (1990)
5
3
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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 fonner 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 fonner
loitering law was challenged in court. The deletion of the tenn "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
(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 tenn "loitering" by Bill 15-06
does not affect the legal sufficiency of Bill 35-11.
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
F:\LAW\BILLS\ 1135 LOitering
&
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Bill No.
35-11
Concerning: Offenses - Loitering or
Prowling - Established
Draft No.
L
Revised:
10/20/2011
Introduced:
October 25, 2011
Expires:
April 25, 2013
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date:
-..!N.!.::o!Ln~e
_ _ _ _ __
ChI _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Councilmembers Andrews and Leventhal
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 brackets]]
* * *
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 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
Q!:
Prowling.
2
3
ill
Definitio ns.
As used in this Section:
Establishment
means any privately-owned place of business to which
the public is invited, including any place of amusement or
entertainment.
Loitering or prowling
means to remaIn In
establishment at
~
~
4
5
6
7
8
9
10
11
public place or
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
~
12
13
14
15
16
substantial
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
establishment when requested to do so
Qy
~
~
17
18
public place or
police officer or the
19
20
21
owner, operator, or other person in control of the public place or
establishment.
.ili1
Prohibitions.
22
23
ill
A person must not loiter or prowl In any public place or
establishment in the County.
~
~
24
25
ill
In determining whether
person is violating this Section,
police officer may consider if the person:
26
®
ill}
takes flight after the appearance of the officer;
refuses to identify himself or herself; or
27
o
F:\Law\Bills\1135 Loitering & Prowling\Bill 2.Doc
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BILL
No.
35-11
28
29
(£!
(9
attempts to conceal himself or herself or any object.
Enforcement Procedure.
30
31
ill
Unless flight
Qy
the person or other circumstances make it
impracticable,
~
police officer must, prior to any arrest for
~
32
33
34
35
36
37
38
39
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:
®
to identify himself or herself; and
to explain his or her presence and conduct.
~
an
ill
The police officer must not issue
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.
@
40
41
42
Defenses.
ill
It
is not
~
violation of this Section if:
43
44
45
46
®
the arresting officer did not comply with
requirements of subsection
(Qt
or
the
an
ill
the explanation given to the police officer
Qy
the person
was true and would have dispelled the alarm or
immediate concern.
47
48
Penalties.
49
50
51
ill
ill
A person who violates this Section has committed
violation.
A person must not be charged with
~
~
Class B
violation of this Section
52
53
54
unless the arresting officer has first warned the person of the
violation and the person has failed or refused to stop the
violation.
F:\L.aw\Bills\1135 Loitering
&
Prowling\Bill2,Doc
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LEGISLATIVE REQUEST REPORT
Offenses
DESCRIPTION:
PROBLEM:
Bi1135-11
Loitering or Prowling
-
Established
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.
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
Class B Violation
F:\LAW\BILLS\llxx Loitering
&
Prowling\Legislative Request Report.Doc
f:\law\bills\1135 loitering & prowling\legislative request report. doc
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MEMORANDUM
October 19, 2011
TO:
FROM:
SUBJECT:
Council members
Phil Andrews, Chair
~ublic
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 "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."
II
• • •
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 when a 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 1
LexisNexis®
Model Penal Code
Copyright 1962, American Law Institute
PART 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;
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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." 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 acomplaint 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 a civil 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 a disturbance 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.
A parent 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 a fine of
$100 for the first offense and $150 for a second 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 County.
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, a civic 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 the 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. The 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 acurfew 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 adownward 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 astudy of statistics that showed adramatic 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 a deterrent 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 tbis 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 asuspect 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 a fight in progress
or a disorderly conduct incident.
.. What data do you have on juvenile crime and victimization occurring in the County?
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 a juvenile 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 jurisdi<::tion's police department make the determination if they will accept the curfew
legislation. Any jurisdiction that does not accept a curfew 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 WllO 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
our 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 pu rchase of
tobacco products to underage individuals. So it makes sense forthe 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 avoice in the final product. Once everyone understands
that the curfew is important to improve everyone's safety, and that its enforcement will have 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.
Asurvey 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 a 50 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
. ,hiU
WMMiI,f,&@Il6-­
... "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.
.atM·,17Q
1lt
4i',MrN£
... "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 a group 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.montgomerycountymd.gov/curfew
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AGENDA ITEM
#4
July
t t,
2006
Action
MEMORANDUM
July 7, 2006
TO:
FROM:
County Council
~
Sonya E.
Healytt~~islative
Analyst
SUBJECT:
Action:
Bill
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 a/Nevada,
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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Background
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
BUbel
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 ALI. 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.'"
Id.
§
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."
BUbel
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
(Id.
§
6-402 & 6-403,
©
14-15); and refusal or failure to leave
a public building or grounds
(Id.
§
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.
This 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\0615 Offenses· Loitering\Action Memo.Doc
3
@
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Bill No.
15-OS
Concerning: Offenses -
rrLoiteringD
Disturbing
the
pyblic
peace
or
disorderly conduct
Revised:
6-19-06
Draft No. 4
Introduced:
April 18. 2006
Expires:
October 18. 2007
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _--,--,_ _ _ _ _ __
Sunset
Date: _Nu;o=.n:.:.:e'--_ _ _ __
ChI _ _
,Laws
of Mont Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council President at the Request of the 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 brackets]
* * *
. 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 bill.
The County Council for Montgomery County, Maryland approves the following Act.'
@
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1
Sec. 1. Sections 32-13 through 32-17 are amended as follows:
32-13.
[[Loitering]] Disturbing the public peace or disorderly conduct -
DefiJiitions.
(For the purposes of sections] As used in Sections 32-14 [(to]] through 32-17,
the following terms (shall] have the following meanings (respectively ascribed to',
them in this section]:
2
3
4
5
6
7
8
[[Loiter:
To circulate, stand around or remain or to park, or remain parked in
a motor vehicle.!. 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.]]
9
10
11
12
13
Place open
to
the pUblic.;
Any place (open to the public or any place to] [[in
which]] where the public is invited or permitted (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.].!..
including:
14
15
16
17
18
19
20
21
!ru
(Q)
~
!!
place of business;
~
parking
lot;
22
23
!!
place of worship;
~
@
cemetery;
[[.!. whether or not admission is charged;
and]]~
m:
24
25
UU
ill
~
place of amusement
an elevator, lobby, or hallway
permitted]]:.
Hill
~
building where the public is
26
27
Public place:
[Any public street, road, or highway, alley, lane, sidewalk,
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28
29
30
31
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.]
W
Any public way, including
32
33
34
35
36
37
ill
ill
ill
®.
~
street, road, or highway;
sidewalk;
~
an alley or lane; [[andllm:
~
crosswalk.
au
Any public facility, including
38
39
40
41
ill
ill
ill
!±l
~
park:
~
playground;
~
school;
~
[[and]]
Qr
government building.
W
32-14.
Any vacant lot or parcel of land.
42
43
44
45
[Same} [[Loitering]] Disturbing
conduct- Prohibited conduct.
[(a)
lb£
public peace
m:
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)):
46
47
48
49
[(1)]
W
[To interfere, impede or hinder] interfere[l.§.ll with or
hinder[(§]] the free passage ofpedestrian or vehicular traffic[.];. or
[(2)
To interfere with, obstruct, harass, curse or threaten or to do
physical harm to another member or members ofthe pUblic.
(3)
That]
50
51
ru
incite[[.ru] unlawful conduct,
hY
words or intentional
52
53
54
conduct, [it is clear that there is a reasonable likelihood a breach
of the peace or disorderly conduct shall result] whicb
is
~
tQ
produce
[@ny]]
imminent unlawful conduct.
 PDF to HTML - Convert PDF files to HTML files
55
56
57
58
59
60
[(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 unifonned police
officer or the direction of a properly identified police officer not in
unifonn to move on, when not to .obey such direction shall endanger
public peace.]
32-15.
[Same-Identification.] Temporary detention
hI
police officer
!!f
an
61
62
[[person]] 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 himself by name and address at the request of a unifonned
police officer or of a properly identified police officer not in unifonn, if the
surrounding circumstances are such as to indicate to a reasonable man that the public
safety requires such identification].
63
64
65
66
67
W
A police officer may temporarily detain any individual under
circumstances that reasonably indicate that the individual
[[either]]~
68
69
70
ill
ill
ill
(hl
has engaged in conduct prohibited under Section
32-14([1.Qr]]j,
has
violated
or
~
violating
~
condition
gf
parole
w:
probation[[J]j,
71
72
73
w:
has committed, is committing. or is about to commit
~
crime.
A police officer may detain an individual under this Section only to
detennine 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.
(£)
An
individual must not be detained under this Section longer than is
74
75
76
77
78
79
80
81
reasonably necessruy to achieve the pumoses of this Section[[1 and in
no case longer than
60
minutes]]~
Unless the individual is arrested.
@
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82
the detention must not las1longer
than
6ll minutes
QI
extend beyond
83
84
85
86
87
88
89
90
91
the place, or the immediate vicinity of the place, where the individual
was first detained.
32-16.
[Same-] Lawful assembly exempted.
Nothing in this Article, except Section 32-23, prohibits [[orderly]] lawful
picketing or other lawful assembly.
32-17.
[Same] ([Loitering]] Disturbing the public peace
ru:
disorderly
cQnduct- Penalties,;. Warning.
W
[Any person violating any of the provisions herein shall be subject to
punislunent 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.
92
93
94
au
[No person shall] An individual must not
be
charged with a violation of
[sections 32-13 to 32-16] Section 32-14
95
96
m:
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.
97
98
99
Approved:
100
George L. Leventhal, President, County Council
101
Date
Approved:
102
Douglas
M.
Duncan, County Executive
Date
o
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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
circumstances 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 circumstances 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 circumstances 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) 717-6740.
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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I
OFFICE OF THE COUNTY EXECUTIVE
ROCKVIlLE. MARYlAND 2011')0
Douglas M. Duncan
Cou/lty Executive
MEMORANDUM
March
21, 2006
TO:
George
L.
Leventhal, President
Montgomery County Council
FROM:
SUBJECT:
~~
Douglas M. DurfcruP.County Ex.ecutive
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
32-1.3,32-14,32-15
and
32-17.
The proposed amendments will modify the definitions of the
telTIlS "loitering''. "public place" and
~'place
open to the public." 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
n
o
-..­
:J:
cc: Bruce Romer, Chief Administrative Officer
J. Thomas Manger, Chief, Department of Police
Charles W. Thompson, Jr., County Attorney
C1i '\
0:('_'
~
c:::-r.
r;.
c:.
:'*'::
~
-.
'
..
'0-«
-
----
..
..;t".._.l-
F
e :-,',
c:..:
:
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-
OFFlCE OF ,MANAGEMENT
AND
BUDGET
Douglas M. Duncan
Counly Executive
1\'
Beverley K. Swaim-Staley
Director
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, Oirec,o&
Office of Management and Budget
is
SUBJECT: Bill 15-06, Offenses - Loitering
The purpose of this memorandum is to transmit a fiscal impact statement to the
Council on the subject legislation.
LEGISLAnON 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.
FISCAL SUMMARY
The legislation is not expected to have an additional fiscal impact on the County.
The following contributed to and concWTed with this analysis: Nicholas Tucci,
Department of Police. and Dana Brassell. MNCPPC.
BSS:brg
cc:
Nicholas Tucci.
Police
Dana Brassell.
MNCPPC
Belinda Bunggay,
OMB
Jennifer
Bryant, OMB
a
0...
:::l:
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~
0
:z:
non~
C!~
--I
o::I:n
C:&"TlfTI
Z.?J­
0
:x:
;x..,
£:?-«
'(1f!1
0··..,
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c:'-'
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co
-<
-t
Office of (be O(rcctor
101 Monroe Street. 14th Floor • Rockville, Maryb,od 20850 •
240n77-2.800
h
ltp://www.moo(gomerycountymd.gov
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Testimony
Of
Robert Cae. Board Member
ACLU Chapter of Montgomery County
Before the Montgomery County Council
On
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[ing] with or hinder[ing] the free
passage of pedestrian or vehicular traffic." That makes sense because
as
a
Olmstead v. United States,
277 U.S. 438,478 (1928).
1
 PDF to HTML - Convert PDF files to HTML files
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
Brandenburg 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
fad,
there is no
/
2
Brandenburg v. Ohio,
J
395 U.S,
{1969}.
Brandenburg,
395 U.S.
at
447.
2
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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 ofthe word "orderly." 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
n
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
§
10-201
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.
(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.
-
A defendant'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
26,
§
4, Acts of 2002,
to
10·120, under the new
: Beverages Violations".
19
has been given to Ch.
ment.
See
Art. 1,
§
17.
n appears as
§
10-126.
Chapters 108 and 109 each added this sec­
tion as
§
10-117 under a new part VPart [[.
Alcoholic Beverage Consumption or Possession
of Open Container in Passenger Area of Motor
Vehicle~.
However, Ch. 213,
§
I, Acts of 2002,
transferred Article 2B.
§§
22·101 through 22·
lOS,
as
enacted
by
Ch.
26,
§
4, Acts
of 2002, to
be
§§
10-113 through lO·120, under
the
new
part ·Part II. Alcoholic Beverages Violations·.
Precedence
in
numbering has been given
to
Ch.
213
as the later enactment.
See
ArL
I,
§
17.
Accordingly, this section appears as
§
10-127.
this part:
Ie defendant to the
II
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)
CD
"Public conveyance" means a conveyance
to
which the public or a
of the public has access
to
and a right
to
use for transportation.
(ii)
"Public conveyance" includes
an
airplane, vessel, bus, railway
car,
vehicle, and subway car.
(3) (i)
"Public place" means a place
to
which the public or a portion of the
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;
mdant 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' MANn.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
(ii)
act in a disorderly manner.
(5) A person from any location may not, by making an unreasonably loud
reference
: duded in the co
"vessel".
" Also in subsecti·
fanner reference
I
light of the
COD
.sehool vehicle".
In
subsection (,
I
!
I
!
!
\
!
noise, willfully disturb the peace of another:
(i)
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.)
REV1S0R'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 (8)(2)(i) and
(3)(i)
of
this
sec­
tion, the former references
to
the "genera]"
public are deleted as unnecessary.
In subsection (a)(2)(ii} of this section, the
University of
For note, ·Consti!
mellt Freedom of:
'Loud and Unsee
I
tral Regulation ,
Bait.
L.
Rev.
507
Constitutiona
prior similar vel
makes it unlawft
turb any neighbc
town or county
b)
constitutional wh
the volume level
First Amendmenl
tution. Eanes v.
!
604 (1990),
cert.
d
3218, 110
L.
Ed. :
This section is ,
Jored
to
serve
a s
does
not
inhibit
t
channels
of
corom
Md. 436, 569 A.21
U.S. 938, 110 S.
(1990).
Language pre
embrace
only ,
Nawrocki. 15 Md.
denied,
266 Md. "
And
they
do
I
pression. In
re
289 A.2d 846.,
eel"
Th...
statutes
pi
cannot apply to
offensive, that
is
Fourteenth Amer
Md.
App.
252, 28
Md.
741 (1972).
Whether the ."
"an unreasonabl;
the statutes are'
expression depen
of them.
a
quest
facts of
the parti!
Md.
App.
252,
2t
Md. 741 (1972).
CODStruction,
proscribed two gt
about
any
pub1i,
disorderly maM
public peace rna:
one indecently e
prohibited. or by
172
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CRIMINAL LAW
; §
6-402
i~ntification
plate
(c)
Vehicle.
-
"Vehicle" has the meaning slated in
§
11-176 of the Transpor­
tation Article.
REVISOR'S NOTE
,etion 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(c)(1)(i).
Because the term ·ofT-road vehicle" as for­
merly defined applied
to
on-road as well as
ofT-road vehicles. contrary to standard usage.
the revision of this subtitle uses the newly
defined term uvehicle" as well as the redefined
term ·ofT-road vehicle" in instances where the
former defined term ·ofT-road vehicle" was used.
(d)
Wanton.
-
"Wanton" retai.ns its judicially determined meaning.
See
General Revisor's
REVISOR'S NOTE
§
1-10]
This subsection formerly was Art. 27.
§
576(d).
No changes are made.
(An.
Code 1957, art. 27,
§
576(a), (c)(1), (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!-ryo
land.
378
U.S.
130,84
S. Ct. 1770.
12 L.
Ed. '2d
754 (1964).
lve the meanings
§
6-402. Trespass on posted property_
(a)
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
(ii)
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 is 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)(l), (b); 2002,
ch.
26,
§
2.)
REVISOR'S NOTE
as off· road vehicles.
;Iusion of any
~boat,
.cement vehicles •...
w
vehicle" as formerly
:>pe 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(al(1) and (b).
In the introductory language of subsection (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)(l) ofthis section. the phrase
·signs placed where they reasonably may be
seen" is substituted for the former phrase
"[s)igns where they may reasonably be seen" to
clarify that the requirement that signs be
posted conspicuously applies
to
the location as
well as the content of the signs.
III subsection (a)(2Xil, the reference
to
regu­
lations that the Department of Natural Re­
notorized vehicle
liately over land,
n.
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 section;,;
209(e). As to the content 'of the
COMAR 08.01.05.01.
........IISJJ'..
Defined tenn:
·Person"
Maryland
Law
Review. - For note dis­
cussing whether public works projects should
anchor the navigation servitude, see 41 Md. L.
Rev. 156 (1981).
.
University
of Baltimore
For note, "The 197'1 Maryland
Electronic Surveillance Act,- see 7
Rev. 374
0978}.
§
6-403. Wanton trespass on private property.
(a)
Prohibited
-
Entering and crossing property.
-
A person may not.'
.
or cross over private property or board the boat or other marine
v~_#.~.!~~t~c
another, after having been notified by the owner or the owner's agent
not.~:'~!f:·
so, unless entering or crossing under a good faith claim of right or owners!D,pj'i\>
(b)
Same
-
Remaining on property.
-
A
person may not remain oli
pr:iva~
.
property including the boat or other marine vessel of another, after
hiiviitg
been
not~fied
by the owner or the owner's agent not to do so.
;': .
(c)
Penalty.
-
A
person who violates this section is guilty of
a
misdem'~~i:ip~
and on conviction is subject 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 applies
to
property
that is used as a housing project and operated by a housing auth9rity 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
b~dy
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
whether publi·
the navigation
156 (1981).
• University of BaIt
' "The
1977 M:
For n
ote
,
'11
.. ElectrOniC Survel
an~
· ReV
374
(1978) .
..wanton". -
Want
b extreme reckl essn;
'..
~e
rights of others.
·
171 A.'2d 717
:;!~nds,
378 U.S. 13(
2d '154 (1964).
The
criminal tresp
that the
pu~tive
tre!
ton" stands
10
mark
t.teSpass. In re
J
8.50
456. '133 A.2d, 351
(~
Construct,on
WJ
accommodations la:­
(see noW this sectl<
and both
be
ex.e:ut~(
repugnant and m Ir
State, 236 Md.
356:
Notification. ­
a notification to sta
occasion does not
occasions in the (
buildings and
groUl
Law
Re
§
6-404. Us
(a)
Scope
af
(1)
a
vesg·
(2) a milil
(3)
a
Carn:
REV1S0R'S NOTE
purposes, or c
moving;
(4)
earth·
(5)
a
law
being used fo:
(b)
This section is 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 ·pri\'ate proper­
ty".
• Also in subsection (a) of this section, the
former reference to being "duly" notified is
deleted as surplusage.
In subsection (d) ofthis 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".
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
th~
General
Assembly, that subsection Cd) of this section
appears to prohibit only 'wanton" entry onto
private property, but not 'wantonllyJ' remain­
ing on private property after being notified not
to do so.
Prohibi
driveway,
a
p'
unless the pe
owner or ten
(c)
Penalt)
and on convi.
exceeding
$f
2002, ch. 26
Defined terms:
"Person"
"Wanton"
§
1-101
§ 6-401
This section
substantive c
§§
5'16(c)('2)
at
422
 PDF to HTML - Convert PDF files to HTML files
I
,CRIMINAL LAW
§'
6-409
~
1·101
§
6·401
University of Baltimore
Law
Review.
For note, "The 1977 Maryland Wiretapping and
Electronic Surveillance Act." see 7
If'
Bait. L.
Rev.
374 (1978).
§
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 pact 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 pact 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
(it)
is
acting in a manner disruptive of and disturbing to the conduct of
normal 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,
act.
27,
§
578(a), (b), (d); 2002,
ch.26.
§
2.)
.
REVISOR'S NOTE
This section is new language derived without
substantive change from ronner
Art.
27,
§
578(a), (b), and (d).
Ie area of a
ard, or law
ea.
isdemeanor
Dr a fine not
002, ch. 26,
5
section, the
,ubstituted ror
~a
ror clarity.
Ling
pri­
~her
for the
~
enclosure
'ening,
sdemeanor
If
a fine not
)02,
ch.
26,
or enclosure"
~
1·101
In the introductory language ofsubsection (a)
or this section, the reference to "the time" is
substituted ror the ronnel' rererence to "those
hours or the day or night" ror brevity,
In subsection (a)(l) and the introductory lan­
guage or subsection (b)(l) or
this
section. the
rererences to the person ·who refuses or rails to
leave" are added ror clarity.
In
subsections (a)(2) and (b)(l)(ii) and (2) or
this section, the phrase "government unit" is
substituted for the former phrase "public
agency or institution" ror consistency within
this article.
See
General Revisor's Note to arti·
cle.
I n subsection (b)( 1)(ii) or this section, the
reference to "grounds" is substituted ror the
rormer rererence to "property" for consistency
within this section.
Defined term:
"Person"
§
1-101
427