Legislative Memo: Loitering and Aggressive Begging

The New York Civil Liberties Union strongly opposes this bill with respect to the provisions that create the crimes of aggressive begging and loitering for the purpose of aggressive begging, and that authorize cities to prohibit sitting or lying down on public sidewalks. Begging and use of public sidewalks for non-criminal activities are First Amendment rights protected by the United States and New York Constitutions.

Aggressive Begging and Loitering for the Purpose of Aggressive Begging

The bill would make it a Class B Misdemeanor to engage in “aggressive begging,” that is to “beg with the intent to intimidate another person into giving money or goods, by engaging in conduct which threatens the person solicited which by its nature would place a reasonable person in fear of harm…” The bill would also make it a loitering offense if a person “loiters, remains or wanders about for the purpose of aggressive begging.”

In Loper v. New York City Police Department, 999 F.2d 699 (2nd Circuit 1993), the Second Circuit Court of Appeals considered a challenge to New York’s law prohibiting loitering for the purpose of begging. In that case, the Second Circuit found that begging constitutes communicative activity, and held that the New York law was unconstitutional as a violation of the First Amendment. This bill, by prohibiting so-called “aggressive” begging, represents a renewed effort to target for arrest those who beg in our streets.

As the court in Loper pointed out, New York has many laws on its books that prohibit conduct that intimidates or threatens its residents. Existing laws prohibiting harassment, disorderly conduct and menacing, for example, provide a sufficient remedy against those who in engage behavior, whether in the course of begging or not, that in fact constitutes a threat to the public.

This bill singles out individuals engaged in the constitutionally protected activity of begging, and puts them in criminal jeopardy not only under existing law, but also under this additional provision that applies only to those engaged in begging.

Moreover, this provision, while requiring that an offender have the “intent to intimidate,” contains no description of the kinds of acts that would constitute intimidating behavior. As such it provides insufficient notice as to what conduct is prohibited and vests excessive discretion in law enforcement to determine who is subject to arrest.

In the absence of clear standards describing what conduct is prohibited, inevitably some individuals will be wrongly arrested, and many may be fearful of engaging in peaceful, constitutionally protected, begging, for fear of arrest and prosecution.

The prohibition against loitering for the purpose of aggressive begging is even more pernicious because any person who is present on a public street can be arrested (even if he or she is not begging) if the person is perceived as being on the street “for the purpose” of begging “with the intent to intimidate.”

This places in the hands of law enforcement unfettered discretion to determine first that an individual’s purpose is to engage in begging, and second that when they do, they will be doing so with the intent of intimidating another person. It is impossible to imagine what actual conduct could form the basis for making that double determination of purpose and intent.

New York law already makes ample provision for the prohibition of intimidating conduct. This bill, if passed into law, would place at risk for arrest and prosecution those engaged in constitutionally protected begging, based on a determination by police officers of the purpose and/or intent of the individual, without reference to any proscribed conduct. The bill also singles out those whose circumstances may be so desperate that they must resort to begging.

As such, this bill is antithetical to the principles and values of compassion and generosity that have been a notable part of New York life. While no one condones intimidation, the mean-spirited quality of this legislation breaks sharply with our rich history of empathy for the poor and disadvantaged. We urge you to vote against this bill.

Sitting or Lying Down on Public Sidewalks

The bill would empower every city in New York State to enact ordinances prohibiting most persons from sitting or lying down (or utilizing chairs, stools, blankets, etc. for this purpose) on public sidewalks of designated “urban commercial zones” during designated daytime hours. Although cities would have the power to enact or not to enact this provision, if cities do enact relevant ordinances, the penalty provisions for violations of the ordinances are provided in the bill and, evidently, cannot be modified by any city adopting the ordinance.

The stated purpose of the proposed legislation is to eliminate the safety hazard and inconveniences resulting from persons sitting or lying down on public streets which can discourage people from patronizing establishments in commercial areas.

Our sidewalks, parks and other public spaces have traditionally been and must remain places of assembly and communication open to all. While the government may impose reasonable regulations to preserve the safety and accessibility of those areas, this bill, despite its stated purpose, invites, and even codifies, selective enforcement. Consequently, there is a serious risk that this legislation would be used to target disfavored individuals or activities rather than to serve any legitimate public safety and convenience needs.

The exceptions contained in the bill itself suggest that this bill is not truly aimed at eliminating “inconvenience and safety hazards” as claimed in the sponsor’s memo. For example, the prohibition against sitting or lying down does not apply to persons who sit while engaged in an artistic activity on sidewalks, but the bill offers no explanation for why that activity is less an inconvenience or safety hazard than sitting for non-artistic activities (such as hearing discussions on topics of public interest or playing sedentary games such as checkers) or for no purpose at all.

Other exceptions include sitting near a bus stop if you are waiting for transportation (but not if you are simply resting or for any other purpose), and sitting on a chair or bench, but only if it was supplied by the abutting private property owner or a public agency.

The bill also contains a provision limiting its reach only to those who continue to sit or lie down after being notified by a police officer or other enforcement official that they are in violation of the ordinance. As such, the bill bears an uncomfortable similarity to “no loitering” legislation intended to keep “undesirables” off the street. “No loitering” statutes which do not require criminal activity to some degree are unconstitutional (People v. Berck, 347 N.Y.S.2d 33 (1973) and cases cited therein).

This kind of provision requiring notice by the police is typical of bills, like anti-loitering bills, that prohibit conduct which by itself is perfectly ordinary, acceptable and lawful. The provision places unfettered discretion in the police to select who is allowed to remain and who is not. Only those who are first notified by the police that they are in violation and who fail to move on are subject to the provisions of this section. But the bill provides no criteria of any kind as to how officers may select whom to notify.

Taken as a whole, the primary effect of the bill is not to address any public safety concerns raised by people sitting or lying down on the sidewalk. Rather it turns over to law enforcement unfettered authority to select who may sit or lie down, while providing no guidelines whatsoever as to when a directive to “move along” may be issued. This bill, if passed, may very well encourage “sweeps” of homeless persons or others pursuing lawful activities on public sidewalks.

For all of the foregoing reasons, the NYCLU urges the defeat of this bill.