A Winston-Salem ordinance that prohibits "loitering for the purpose of engaging in drug-related activity" is "unconstitutional on grounds of overbreadth and vagueness," the N.C. Court of Appeals ruled Tuesday.
Greensboro has an ordinance that is virtually identical except for one statement that City Attorney Terry Wood believes would let it pass legal muster.
Here's the Greensboro ordinance:
Sec. 18-46. Loitering for the purpose of engaging in drug-related activity.
(a) For the purposes of this section, "public place" means any area generally accessible to the public for common usage and access, including any street, sidewalk, bridge, alley or alleyway, plaza, park, playground, driveway, parking lot or transportation facility, the doorways and entranceways, stairway, hall, courtyard, passageway or common area to any building which fronts on any of those places, or a motor vehicle in or on any of those places, or any property owned by the City of Greensboro.
(b) It shall be unlawful for a person to remain or wander about in a public place in a manner and under circumstances manifesting the intent to engage in a violation of any subdivision of the North Carolina Controlled Substances Act, N.C. Gen. Stat. Chapter 90, Article 5. When done with the intent of violation of the aforementioned statutes, such circumstances shall include:
(1) Repeatedly beckoning to, stopping, or attempting to stop passers-by, or repeatedly attempting to engage passers-by in conversation; or
(2) Repeatedly stopping or attempting to stop motor vehicles; or
(3) Repeatedly interfering with the free passage of other persons; or
(4) Such person behaves in such a manner as to raise a reasonable suspicion that he or she is about to engage in or is engaged in an unlawful drug-related activity; or
(5) Such person repeatedly passes to or receives from passers-by, whether on foot or in a vehicle, or by courier, money or objects; or
(6) Such person takes flight upon the approach or appearance of a law-enforcement officer; or
(7) Such person is at a location frequented by persons who use, possess, or sell drugs.
I put the key passage in bold, which is contained in the Greensboro code but not Winston-Salem's.
The court faulted the W-S ordinance because it "does not require proof of intent to violate a drug law."
The Greensboro ordinance does.
Without requiring proof of intent, W-S "attempts to curb drug activity by criminalizing constitutionally permissible conduct," the court said. A person could be socializing at a community event and find himself arrested for "repeatedly attempting to engage passersby in conversation," the opinion written by
Judge Robert N. Hunter Jr. of Greensboro said. He went on to offer other examples of perfectly legal behavior that could be misconstrued as violations of the ordinance.
In Greensboro, it appears someone has to be in pretty clear violation of drug laws to be charged with a violation of this loitering statute. No one would be charged simply with the loitering violation without also being hit with a more serious offense.
Wood said his staff is reviewing the decision to see if changes ought to be made, but right now "we have a pretty high comfort level with our ordinance."