Zimmer, Duncan & Cole

Is there a Constitutional Right to Loiter?

A registered sex offender was charged with loitering near a city park. In his defense, he suggested this criminal charge interfered with his constitutionally protected "freedom to loiter".
Our state Supreme Court addressed his case in the State of South Dakota v. Kenneth Dale Stark (2011 S.D. 46).
This story begins with a cliché: a suspicious white van parked near an elementary school. A concerned mother believed that the driver was either watching or following children headed to swimming lessons at a nearby pool. She called the police and gave them the license plate number.
The Sioux Falls Police Department determined that the white van belonged to Kenneth Stark, a registered sex offender. (According to the state offender registry, Stark has a 1992 Nebraska conviction for sexual assault involving a 7-year-old girl.)
In South Dakota, sex offenders are prohibited from loitering within 500 feet of schools, parks, or playgrounds. So, the following afternoon the police department sent two officers to tail Stark when he left work.
According to the officers, he stopped at a gas station and then headed to Whittier Park. He circled the park for around twenty minutes, and then the officers lost sight of him.
A short time later the officers were told that Stark's van had been spotted near another park. As they arrived, they saw Stark's van leaving. It appeared he had been parked along the curb at the corner of the park.
They stopped his van. They smelled alcohol on Stark's breath and found an open vodka bottle under the driver's seat. Stark was charged with driving under the influence, an open container violation, and loitering within 500 feet of a "community safety zone" (i.e., a school, park, or playground).
The word "loitering", in this context, means "remaining for a period of time and under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors."
At trial, Stark denied he had loitered near the park. Instead, he said he went home, ate dinner, had a few drinks, and headed to the supermarket. Near the park, he pulled over to let an oncoming car pass through a narrow part of the street, and to allow a group of children to cross.
The jury didn't buy it. They convicted him of loitering and having an open container, and acquitted him of the DUI.
Stark appealed his conviction. He argued that the anti-loitering statute was unconstitutional for two reasons: it was too "vague", and it violated his constitutional right to loiter.
When someone alleges that a law is "unconstitutional", it's rare that the answer is spelled out in black and white in the text of the Constitution.
Instead, that document contains a list of rights and principles. Courts must interpret how those general statements apply to specific cases.
"Vagueness" is a perfect example. There isn't a specific amendment against vague laws. But that principle is well-accepted. It's a product of a phrase in the Constitution that guarantees each of us "Due Process".
A criminal law must be detailed enough that citizens understand exactly what it means (and how to avoid breaking it). Also, if the law is too "vague", there is no guarantee that each police officer will enforce it the same way each and every time.
Here, the Court determined that the 500-foot rule for sex offenders was not vague.
They turned next to the "freedom to loiter" argument. Is loitering really a constitutionally protected right? The idea isn't as far-fetched as it sounds.
Even though the word "loitering" doesn't appear anywhere in the Constitution, the U.S. Supreme Court first mentioned the idea in an opinion twelve years ago.
The case involved a Chicago ordinance that made it a crime to loiter if you looked like you were a member of a street gang.
In that opinion, three of the nine justices noted that the right to linger in a public place would be a logical extension of the freedoms we have long recognized: our ability to travel about the country and to move from place to place, conducting our daily business.
However, because the U.S. Supreme Court didn't go as far as officially declaring "loitering" as a fundamental right, our state Supreme Court declined to accept Stark's argument.
His conviction will stand.