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Legislative Memo: Loitering in a Transportation Facility

This bill includes a provision that would create the crime of “aggravated loitering in a transportation facility,” a Class A Misdemeanor. (See Part I, Section 1 of S.944-B.) The bill reportedly is intended to prevent the unauthorized sale or use of Metro Cards, which are issued by the Metropolitan Transportation Authority. (A Metro Card permits the holder to travel in New York City buses and in the subway system.) The new crime, penal law § 240.38, would provide that

[a] person is guilty of aggravated loitering in a transportation facility when he or she loiters or remains in any transportation facility, for the purpose of soliciting or engaging in commercial transactions involving the unauthorized sale of fare media or other access to or use of the facilities, conveyances or services within the transportation facility. For the purposes of this section, “unauthorized sale” means any sale of fare media not specifically authorized by the originating transportation entity; “fare media” means the various instruments issued in connection with public passenger transportation to use for the payment of fare, including, but not limited to, tokens, passes, farecards, transfers, tickets, and vouchers.

Loitering crimes have historically been a source of controversy. This type of crime, by its very nature, implicates conduct — speech, association and expression — that is afforded broad protection under the federal and state constitutions.

In light of this history the NYCLU has concerns that, as currently drafted, the proposed crime of aggravated loitering in a transportation facility would in its application run afoul of the U.S. Supreme Court’s proscriptions against anti-loitering laws that are sufficiently vague so as to sanction the prosecution of lawful conduct. For this reason the NYCLU opposes adoption of the “aggravated loitering” provision in Budget Bill S.994-B.

Constitutional protections of loitering

In 1999 the Supreme Court struck down as unconstitutionally vague a Chicago ordinance that prohibited “criminal street gang member[s]” from loitering with no apparent purpose. The ordinance directed a police officer to issue an order that such persons disperse. In its analysis of the statute, the Court stated that vagueness may invalidate a criminal law if it “fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty.”

The Court noted that the “freedom to loiter for innocent purposes” is protected by the Due Process Clause of the fourteenth Amendment; and that this “right to remove from one place to another according to inclination” is an “attribute of personal liberty” protected by the Constitution. It is foreseeable and all but inevitable that the proposed legislation will lead to arbitrary enforcement and the violation of fundamental liberties.

For the bill not only prohibits various commercial transactions, but also loitering or remaining in a transportation facility with the “purpose” of soliciting, or engaging in, the unauthorized sale of Metro Cards or other access to transportation facilities. How might this unlawful purpose be manifest? Will loitering alone become suspect?

The proposed statute would invite a police officer to engage in surmise and mind-reading; and, based upon this, to engage in prior restraint, in anticipation of evidence of a criminal act. It is in the very nature and purpose of a transportation facility that when in such a place, people will, for obvious and lawful reasons, loiter. They meet other persons with whom they intend to travel; they await the arrival of family members or friends.

A transportation facility is at the same time a destination point and point of embarkation. A subway turnstile (or a bus stop) is both a point of entry into a transportation facility and an exit out of the facility. And it is a commonplace occurrence in a transportation facility that persons exchange money, and even Metro Cards, for reasons that are entirely lawful. Nevertheless, this proposed law, if enacted, would make such conduct inherently suspicious and subject to police intervention.

The proposed statute leaves it unclear to the public as to when loitering may be deemed unlawful, or deemed suspicious by a police officer. The legal rule gives the police officer little guidance as to how to discern when a person is loitering for the “purpose” of engaging in unauthorized sale of a Metro Card or “other access to or use of” the public transportation system. It is this vagueness in the language of the bill that may well lead to its unconstitutional application.

Potential abuses of constitutional rights

When might innocent loitering cross the line of lawfulness and become the crime of aggravated loitering? This is a crime, as drafted, that exists largely in the eye of the beholder. Any person in a stationary position who happens to be handling money or Metro Cards may become the subject of a police action: stop, question, or arrest. Consider the following hypothetical scenarios.

  • Two high-school students engage in loud, playful conversation inside the entrance to a subway station. They are awaiting others who are traveling by subway to this station. Several other young people emerge from the subway and join the two. The group engages in animated conversation. A police officer assigned to the station suspects that youth are engaging in unauthorized sale of Metro Cards at this station. He stops the youths and demands that they produce identification. He detains them, on suspicion of aggravated loitering, while he requests a background check from the precinct.
  • A husband and wife, who share a 30-day Metro Card, meet regularly at the subway station as they change shifts of parenting and work. The husband typically waits for his wife near a turnstile, where she transfers the card to him. Aggravated loitering? A police officer thinks he has observed just that. The next day, as the husband awaits the arrival of his wife, the officer detains and questions the man, demanding information regarding his reason for being in the subway and the identification of his wife and the nature of her discussions with him.
  • Two men, day laborers, are talking by a wall near a subway turnstile. It is mid-afternoon; they have finished their day’s work and each is heading home. One of the men realizes he has lost his Metro Card and explains that he is short of money. He asks to purchase one fare for its value on the card. His companion agrees and, after passing through the turnstile, “swipes” the other through the turnstile. A police officer arrests both for aggravated loitering: unauthorized sale of fare media.

During the three-year period in which the Chicago gang-loitering ordinance was in effect (before it was struck down by a state appellate court), police issued 89,000 dispersal orders and arrested more than 42,000 persons for violating the ordinance. It is not unreasonable to anticipate that New York City would experience widespread and arbitrary enforcement of the proposed aggravated loitering law, as well as class-action litigation challenging its constitutionality.

Subverting the legislative process

The proposed aggravated loitering law appears, at the governor’s request, in a lengthy budget bill. It is being negotiated, by representatives of the two legislative chambers, under intense pressure to pass a budget before the April 1 deadline. The bill on its face has little to do with budget appropriations. It does, however, raise troubling questions regarding the scope of law enforcement authority in public transportation facilities.

Nevertheless there has been no opportunity to debate these questions before a legislative committee. There have been no hearings, no formal solicitation of comment. And should the budget bill S.994-B move to a floor vote, it can be predicted with confidence that the measure will not be subject to any public debate before it is summarily approved and signed into law.

Legislators have decried as unfair the report of the Brennan Center that, with ample documentation, concludes New York’s legislature is the most undemocratic in the nation. The process by which the aggravated loitering provision in budget bill S.944-B has been introduced corroborates the findings of the Brennan Center.

For the foregoing reasons the NYCLU strongly urges the members of the Assembly and the Senate to strike the aggravated loitering provision from S.994-B.

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