Presentation of Attorney General Denise George Committee on Homeland - PDF document

Presentation of Attorney General Denise George Committee on Homeland Security, Justice, Public Safety and Veterans’ Affairs Thirty-Third Legislature of the Virgin Islands Wednesday, July 10, 2019 Good morning Chairman Steven Payne, Senators on the Committee on Homeland Security, Justice, Public Safety and Veterans’ Affairs, legislative staff, and to those of you in the listening and viewing audience. My name is Denise George, and I am the Virgin Islands Attorney General. I am honored to be here today at the Chairman ’s invitation to offer statements on proposed Bill No. 33-0011. The purpose of today’s measure is to update and strengthen the Territory’s loitering law by amending the language contained in 14 V.I.C. § 1191. The history of such laws date back to medieval Europe and were introduced on this continent with the establishment of the American colonies. 1 Following the birth of this nation, those same laws were adopted from the British and continued to be enforced without serious challenge until late in the twentieth century. 2 “ The constitutionality of [these] vagrancy and loitering laws remained virtually unchallenged for most of this country's history for two reasons. First, poor defendants could rarely afford legal counsel to prosecute an appeal. And second, the lengthy appeals process was usually barely begun before defendants had finished serving their typically short sentences.” 3 Then, the landscape of loitering laws began to evolve and face challenges following two U.S. Supreme Court cases. The first, Gideon v. Wainwright , 4 resulted 1 See generally , William Trosch, COMMENT: The Third Generation of Loitering Laws Goes to Court: Do Laws That Criminalize “Loitering With the Intent to Sell Drugs” Pass Constitutional Muster?, 71 N.C. Rev. 513 , 515 (1993). 2 See id . 3 Joel D. Berg, NOTES: THE TROUBLED CONSTITUTIONALITY OF ANTIGANG LOITERING LAWS, 69 Chi.-Kent L. Rev. 461, 463 (1993). 4 Gideon v. Wainwright , 372 U.S. 335, 83 S. Ct. 792 (1963).

Attorney General’s Testimony Bill No. 33-0011 Page 2 of 8 in the guarantee of legal representation for indigent people charged with felonies; and the second case, Papachristou v. City of Jacksonville , 5 in which the Court struck down that city’s loitering ordinance for being unconstitutionally vague. Since these decisions, loitering and vagrancy laws have faced numerous challenges under a number of different legal theories. The most common of these are the void-for-vagueness doctrine; the overbreadth doctrine; and Fourth Amendment jurisprudence. The void-for- vagueness doctrine derives from the Fifth and Fourteenth Amendment’s due process requirements. The United States Supreme Court has stated that "[a] vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." 6 To satisfy the due process requirement, statutes must “ be both sufficiently clear to provide people notice of what the state commands or forbids and provide minimal guidelines to harness the discretion of those who enforce the laws.” 7 Under the notice requirement, a statute will be struck down if it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." 8 There are a number of ways in which the “minimum guidelines” requ irement may be met. “The most obvious way is to include an intent requirement in the statute and to delineate what circumstances or conduct the police and the courts may consider when arresting and convicting people for loitering. ” 9 In short, any contemplated loitering law, in order to pass constitutional muster under the void-for-vagueness doctrine, should incorporate both an intent element, as well as minimum guidelines to inform police, juries, and 5 Papachristou v. City of Jacksonville , 405 U.S. 156, 92 S. Ct. 839 (1972). 6 Grayned v. City of Rockford , 408 U.S. 104, 108-09 (1972). 7 Berg, supra , at 468. 8 United States v. Harriss , 347 U.S. 612, 617 (1954). 9 Berg, supra , at 472.

Attorney General’s Testimony Bill No. 33-0011 Page 3 of 8 judges of the conduct that may be considered in order to prevent arbitrary and discriminatory enforcement. The overbreadth doctrine is derived from the First Amendment “and invalidates statutes that substantially infringe upon constitutionally protected activities, regardless of whether or not the statutes may be legitimately applied in a particular case.” 10 Loitering laws are often struck down on this basis because they encroach on an individual’s freedom of association, freedom to assemble, and even freedom of thought. 11 The overbreadth doctrine has two dimensions relating to it. First, there is a substantive component that prohibits government officials from enforcing laws that infringe on constitutional freedoms. Courts will apply a two-prong test when conducting this analysis. “ First, the law is read in light of any limiting constructions the state's courts have placed on the statute. Second, the courts determine the degree to which the statute as applied will infringe on protected activities.” 12 Even if a law may be legitimately applied in certain circumstances, if it substantially infringes on constitutionally-protected activities it will be struck down. The procedural dimension to the overbreadth doctrine is simply an exception to the normal standing rule that prohibits third parties from bringing challenges on behalf of others. The purpose behind this is that law-abiding citizens may choose to simply follow the law rather than face arrest. When First Amendment freedoms are at stake, it is better to allow third parties the right to bring a challenge without having to actually break the law. 10 Vanessa Wheeler, ARTICLE: Discrimination Lurking on the Books: Examining the Constitutionality of the Minneapolis Lurking Ordinance, 26 Law & Ineq. 467, 473 (2008). 11 See id. at 477. 12 Berg, supra , at 473.

Attorney General’s Testimony Bill No. 33-0011 Page 4 of 8 The final area of law that most challenges the loitering laws arise rests upon the Fourth Amendment. That amendment guarantees that "no warrants shall issue, but upon probable cause." 13 However, the Supreme Court has carved out several exceptions to the warrant requirement. In Terry v. Ohio , the Supreme Court created the reasonable suspicion exception in upholding a police officer’s right to frisk a suspect where probable cause did not exist. The high Court created a balancing test in which the government’s interest in conducting the search outweighs the privacy interests of the individual subject to it. However, before the subject may be frisked the officer must have a reasonable suspicion, supported by articulable facts, to believe that criminal activity is afoot and that the individual may pose a threat. In Papachristou , the court reasoned that vaguely written vagrancy and loitering statutes give too much broad discretion to the police in violation of the principles outlined in Terry . The Court stated: We allow our police to make arrests only on "probable cause," a Fourth and Fourteenth Amendment standard applicable to the States as well as to the Federal Government. Arresting a person on suspicion, like arresting a person for investigation, is foreign to our system. . . . A direction by a legislature to the police to arrest all "suspicious" persons would not pass constitutional muster. 14 “ By giving law enforcement universal probable cause, either with a vague law or by permitting arrest on suspicion alone, loitering laws circumvent the Fourth Amendment. ” 15 In short, an officer still must have probable cause that a crime has, or is about to be, committed in order to make a valid arrest under the Fourth Amendment. While reasonable suspicion may warrant further investigation, it alone, is insufficient to justify an arrest. 13 U.S. Const. amend. IV. 14 Papachristou v. City of Jacksonville , 405 U.S. 156, 169 (1972). 15 Trosch, supra , at 560.