Do you always have to leave a place simply because a police officer tells you to move on?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

When the police tell homeless people to move away from where they are, it is usually an unspoken warning that if they do not move, they will be charged with a crime, perhaps the crime of trespassing if they are on private property, maybe loitering or disorderly conduct if they are on public property.

Everyone, even people who are not homeless, can get charged if they fail to move away from an area when the police tell them to disperse.   In 2009, the National Law Center for Homelessness  and Poverty put forth a model order for police departments to implement as a way of instructing police about interacting with homeless people.  That model order includes guidance about when homeless people can be made to “move on”.

This is not a legal issue that is unique to the homeless experience, but it impacts the homeless more than others simply because of where they spend their time. A 1983 Supreme Court case[i] ruled that statutes authorizing police to move people have to specify some sort of illegal action so that “ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”[ii]

The typical disorderly conduct law includes a line stating that when groups of three or more people block a sidewalk or cause some other disturbance, the police can require them to disperse. The exemplary language in the Model Penal Code says, “Where [three] or more persons are participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance or alarm, a peace officer or other public servant engaged in executing or enforcing the law may order the participants and others in the immediate vicinity to disperse.”[iii]

Loitering is the “move along” charge more likely to apply to individuals or pairs. The Model Penal Code version of it says:  “A person commits a violation if he loiters or prowls in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity. Among the circumstances which may be considered in determining whether such alarm is warranted is the fact that the actor takes flight upon appearance of a peace officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the actor or other circumstance makes it impracticable, a peace officer shall prior to any arrest for an offense under this section afford the actor an opportunity to dispel any alarm which would otherwise be warranted, by requesting him to identify himself and explain his presence and conduct.”[iv]

An authority on municipal law, writing about police regulation of sidewalks and streets, says that “the gravamen of the offense is the doing of the prohibited act, and not disobedience to the order of the officer; hence the offense does not depend upon the whim or caprice of the officer.”[v] He may be correct that the charges sound like they can only be applied based on a defendant’s conduct, but in practice it is nearly impossible to dispute a loitering or disorderly conduct charge without sounding argumentative in a way that will convince the judge that you must also have been argumentative with the officer. Being argumentative with a police officer is enough of an action to create cause for alarm, a component of both disorderly conduct and loitering.[vi]

Defending against one of these charges typically requires proof that you were not about to cause a problem. In loitering cases, there are not likely to be any witnesses available to validate a defendant’s claim about why he was there at that time and whether he seemed threatening. In disorderly conduct cases, whether the defendant’s actions were likely to cause harm, inconvenience, or annoyance is determined by the officer’s own perception. So the way to avoid trouble in the short-term is to move whenever the police say so, no matter how uncomfortable or inconvenient it is.

In the long-term, it can be legally helpful to keep track of patterns of when police give these move-along orders and which officers tend to give them. If it becomes clear that police simply do not want the homeless in a certain area on Friday and Saturday nights, then avoiding trouble is easy. If it becomes obvious that police are timing their move along orders to interrupt sleep or eating, then the homeless people being disrupted might be able to make a claim of police harassment.  (See the ACLU’s Community Action Manual on “Fighting Police Abuse“.

The National Coalition for the homeless maintains a website about “Criminalization of the Homeless” with summaries of court cases in which vagrancy, curfew and loitering laws have been contested. Anyone planning to argue that those kinds of laws are unjustly written or unfairly applied would be wise to read these case summaries and then look for the full case opinions and cases that reference these cases. http://www.nationalhomeless.org/publications/crimreport/casesummaries_3.html

[i] Kolender v. Lawson, 461 U.S. 352; 103 S.Ct. 1855 (1983).

[ii] Id. at 357; 1858.

[iii] Model Penal Code §250.1

[iv] Model Penal Code §250.6

[v] MCQUILLIN, EUGENE, A TREATISE ON THE LAW OF MUNICIPAL CORPORATIONS 3d Ed., §24.596 (updated through July 2006)

[vi] This point is explained in the post about having to identify one’s self to police.

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