LOITERINGLOITERINGLOITERINGLOITERINGLOITERING
(See also, DISORDERLY PERSONS, this Digest)
I. DEFINITION
To be dilatory; to be slow in movement; to stand
around or move slowly about; to stand idly around; to
linger or to lag behind; spend time idly. Black’s Law
Dictionary (6th Ed. 1990). An ordinance which relies on
such general language would be void for vagueness,
because it would give no guide or standard by which to
determine who is loitering. Shuttlesworth v. Birmingham,
382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965); State
v. Caez, 81 N.J. Super. 315 (App. Div. 1963); see also
State v. Zito, 54 N.J. 206 (1969) (failure to give good
account or giving account that was bad not sufficient to
support disorderly persons conviction); Borough of
Dumont v. Caruth, 123 N.J. Super. 331 (Mun. Ct. 1973)
(some warning to leave must be issued before conduct
becomes unlawful); Allen v. City of Bordentown, 216 N.J.
Super. 557 (Law Div. 1987). An ordinance which
defined in detail the acts which constitute loitering and
requires a request to move on before authorizing arrest,
was not unconstitutionally overbroad or vague. Camarco
v. City of Orange, 61 N.J. 463 (1972).
II. MUNICIPAL ORDINANCES
Prior to the enactment of the New Jersey Code of
Criminal Justice, N.J.S.A. 2C:1-1 et seq., New Jersey’s
criminal law included specific prohibitions against
vagrancy and loitering. N.J.S.A. 2A:170-1 to 4.
However, these provisions were repealed and not
reincorporated into the new Code. Consequently, in
State v. Crawley, 90 N.J. 241 (1982), the New Jersey
Supreme Court concluded that, when viewed in context
with the legislative history surrounding the pre-code
loitering provisions, the absence of any specific loitering
statute in the new code evidences a legislative intent to
decriminalize such conduct. Therefore, the Court held
that, pursuant to N.J.S.A. 2C:1-5d, the code provisions
contained in N.J.S.A. 2C:33-1 to 14 preempted
concurrent municipal legislation with respect to
“loitering” status per se. However, it should be noted
that the type of conduct previously proscribed under
N.J.S.A. 2A:170-1 to 4 and local municipal ordinances
may fall within one of the disorderly persons offenses set
forth under N.J.S.A. 2C:33-1 to 14. State v. Crawly,
supra at 251-252. Moreover, the decision in Crawly does
not preempt municipal ordinances dealing with the
complementary areas of property offenses, vandalism,
pollution and public health. Id. at 252.
III. LOITERING STATUTES
A. N.J.S.A. 2C:33-2.1 - prohibition against loitering for
the purpose of illegally using, possessing, or selling
controlled dangerous substance.B. N.J.S.A. 32:1-146.6 - Prohibition against loitering in
airports, bus terminals or marine terminals; penalty.C. N.J.S.A. 32:23-79 - Prohibition against loitering at
waterfront facility.D. N.J.A.C. 19:2-5.9 - Administrative prohibition
aginst loitering on Atlantic City Expressway.IV. CASES
In Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849,
144 L.Ed.2d 67 (1999), a majority of the Supreme Court
affirmed an Illinois Supreme Court ruling declaring
unconstitutional a local ordinance prohibiting criminal
street gang members from loitering in public places. For
commission of the offense the state had to show that 1)
the police reasonably believed that at least one of the two
or more persons present in a “public place” is a criminal
street gang member; 2) the person were loitering or
“remaining in any one place with no apparent purpose;”
3) the officer ordered “all” of the persons to disperse and
remove themselves “from the area;” and 4) a person,
whether or not a gang member, disobeyed the officer’s
order. Rejecting the overbreadth doctrine as a basis for
invalidating the ordinance because it did not prohibit
speech or right of association, the Supreme Court
nonetheless found that the ordinance was unconstitu-
tionally vague on its face, and was an arbitrary restriction
on personal liberties. It stated that the ordinance failed
to give adequate notice as to “what loitering is covered by
the ordinance and what is not.” In this regard the
ordinance failed to distinguish between innocent
conduct and conduct threatening harm. It thus found
that the ordinance was vague because no standard of
conduct was specified at all. Furthermore, it found that
the broad sweep of the ordinance failed to provide
minimal guidelines for law enforcement to follow.State v. Felder, 329 N.J. Super. 471 (App. Div. 2000),
held that a municipal ordinance which prohibited
knowingly loitering in a public place where controlled
dangerous substance is being unlawfully distributed was
preempted by the Code. See also State v. Schenck, 186 N.J.
Super. 236 (Law Div. 1982); State v. Navarro, 162 N.J.
Super. 434 (Mun. Ct. 1978) (statute prohibiting
loitering or cresting a disturbance while under the