Aggressively Defending My Clients Since 1990

The right to walk where you want or sit where you want in public places

On Behalf of | Jan 15, 2020 | Firm News

In the story The Pedestrian, Leonard Mead, is a citizen of a television-centered world in 2053.  In the city, sidewalks have fallen into decay. Mead enjoys walking through the city at night, something which no one else does. “In ten years of walking by night or day, for thousands of miles, he had never met another person walking, not one in all that time.” On one of his usual walks, he encounters a police car.  Mead tells the car that he is a writer, but the police do not understand, since no one buys books or magazines in the television-dominated society.  The police cannot understand why Mead would be out walking for no reason.  The police decide to take him to the Psychiatric Center for Research on Regressive Tendencies. As the police car passes through his neighborhood, Mead says, “That’s my house.”, and points to a house warm and bright with all its lights on unlike all other houses. There is no reply.  End of story

Can you believe being picked up by police and being taken to a mental hospital because you were on a nighttime walk?
There a a bunch of Wisconsin laws and/or ordinances which restrict basic human activities of public activities, such as loitering, which is defined as “wandering or strolling around from place to place without any lawful purpose.” The laws grants the police the power to approach anyone on the street who they believed was violating the law and ask what they are doing.  Anyone see a problem with that?  Do the police have the right to define if a citizen is engaged in a lawful purpose?  As Bill Nye says, before you answer consider this:

America’s constitutional tradition, which protects the rights of people to freedom of movement and association. These guarantees always have included the right to freely use the public ways, parks and other forums of our cities for the lawful purposes of engaging in family activities, and communicating with others about matters both personally important and of public concern. Roberts v. United States Jaycees, 468 U.S. 609 (1984); Shuttlesworth v. City of Birmingham382 U.S. 87 (1965); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).  Incidentally, given the times we live in today this freedom of movement includes the right to move across national lines.  The first formal recognition of a right to foreign travel at common law was ch. 42 of the Magna Carta. The power of the King to prevent departures through the writ of Ne Exeat Regno was at one time a potent weapon of the monarchy, but the writ fell into disuse, For the common law background see Note, Passports and Freedom of Travel: The Conflict of a Right and a Privilege, 41 Geo. L.J. 63, 64-70 (1952). In America, Ne Exeat Regno survived as an equitable writ against absconding debtors. Parker, The Right to Go Abroad: To Have and to Hold a Passport, 40 Va. L. Rev. 853, 868 (1954).  See also, Boudin, The Constitutional Right to Travel, 56 Colum. L. Rev. 47 (1956).

Court decisions have condemned the inherent vagueness of loitering laws as was mentioned above. Thornhill v. Alabama310 U.S. 88, 100 (1940); Shuttlesworth, 382 U.S. at 90-91; Palmer v. City of Euclid, 402 U.S. 544, 545 (1971); Papachristou, 405 U.S. at 162-71. The ordinance’s vague prohibition on behavior without an apparent purpose fails to provide any standard by which people can measure their conduct. Papachristou, 405 U.S. at 165; Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971). Similarly, the law provides no guidance to police officers. Kolender v. Lawson, 461 U.S. 352, 360 (1983).  “This ordinance is void for vagueness, both in the sense that it ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute and because it encourages arbitrary and erratic arrests and convictions.“  Papachristou, 405 U.S. at 162.  Such laws are the “garbage pail of the criminal law” and suffer from “procedural laxity which permits `conviction’ for almost any kind of conduct and the existence of the House of Correction as an easy and convenient dumping-ground for problems that appear to have no other immediate solution.”  Foote, Vagrancy-Type Law and Its Administration, 104 U. Pa. L. Rev. 603, 631 (1956).  The law is subjectively enforced to permit a law-abiding citizen to comport “to the lifestyle deemed appropriate by the [ ] police and the courts.”  Papachristou, 405 U.S. at 170.

In Papachristou Justice William Douglas, writing on behalf of the court, ultimately referenced a right that today is not readily known to most Americans: the right to free movement: “[t]he difficulty is that these activities are historically part of the amenities of life as we have known them.   These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence. They are embedded in Walt Whitman’s writings, especially in his “Song of the Open Road.” They are reflected, too, in the spirit of Vachel Lindsay’s “I Want to Go Wandering,” and by Henry D. Thoreau.” Id. at 164.  Police, therefore, should not be permitted to use mere suspicion of criminal activity to interrupt the daily life of people.  Laws which interfere with an individual’s right to stand or walk on public sidewalks, the “right to freedom of movement” cannot be left to “the whim of any police officer.”  Shuttlesworth, 382 U.S. at 90.