The state’s second highest court has thrown out Winston-Salem’s loitering ordinance as unconstitutional. In finding the law both overly broad and vague, the appeals court noted that the ordinance did not require proof of criminal intent.

Gary Mello got in trouble in a big way on Aug. 28, 2008. He was arrested on three charges of assaulting a government official (a police officer), two counts of failing to heed a blue light and siren, and one count of loitering for the purpose of engaging in drug-related activity.

A jury convicted him of a single count of assault with a deadly weapon upon a government official, plus the failing to heed a blue light and siren and loitering charges. He was sentenced to serve between 19 and 23 months in prison.

Upon appeal, Mello contended that Winston-Salem’s loitering ordinance was unconstitutional. The N.C. Court of Appeals agreed.

“Because the Ordinance fails to require proof of intent, it attempts to curb drug activity by criminalizing constitutionally permissible conduct,” wrote Judge Robert N. Hunter Jr. for the appeals court.

The ordinance makes it “unlawful for a person to remain or wander about in a public place under circumstances manifesting the purpose to engage in a violation of the North Carolina Controlled Substances Act.” The ordinance then goes on to list seven such circumstances:

• “Repeatedly beckoning to, stopping, or attempting to stop passersby, or repeatedly attempting to engage passersby in conversation”

• “Repeatedly stopping or attempting to stop motor vehicles”

• “Repeatedly interfering with the free passage of other
persons”

• “Such person behaving in such a manner as to raise a reasonable suspicion that he is about to engage in or is engaged in an unlawful drug-related activity”

• “Such person repeatedly passing to or receiving from passersby, whether on foot or in a vehicle, money or objects”

• “Such person taking flight upon the approach or appearance of a police officer”

• “Such person being at a location frequented by persons who use, possess or sell drugs”

The U.S. Supreme Court has previously found laws to be unconstitutional if they deterred a significant amount of constitutionally protected conduct in their attempts to criminalize activities that the Constitution does not protect.

The constitutionality of loitering statues has come before the Court of Appeals before. In State v. Evans (1985), the appeals court upheld a state law prohibiting loitering for the purpose of engaging in prostitution. Key in its decision was that the statute required proof of specific criminal intent.

The appeals court found that Winston-Salem’s ordinance was missing this critical element.

Hunter noted anyone who hands out fliers, conducts a survey on a public sidewalk, or is simply in area where drug arrests have happened or drug dealers have visited could be arrested under the ordinance.

The appeals court also found the ordinance to be unconstitutionally vague.

The 14th Amendment’s due process clause requires that laws be clear enough so that ordinary people can figure out what is being prohibited. In 1978, the N.C. Court of Appeals struck down a law prohibiting members of the opposite sex from occupying the same hotel room for “immoral purposes” as unconstitutionally vague. An average person would have difficultly determining exactly what an “immoral purpose” was, the appeals court held, and would have to guess what activities were criminal.

The appeals court found the Winston-Salem ordinance suffered from the same sort of vagueness.

The Court of Appeals’ finding that the loitering ordinance was unconstitutional likely will do Mello relatively little good. The appeals court upheld his three other convictions.

The case is State v. Mello, (08-1054).

Michael Lowrey is an associate editor of Carolina Journal.