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By Jill K. Sanders, Esq.

“No Loitering” is a sign one often sees on private property. Anyone staying on private property can be charged with trespass or more serious crimes.

However, loitering really refers to remaining in a public place without a reason for being there. And some are saying cops are targeting women of color, trans women, and sex workers and charging them loitering.

What Is Loitering?

The dictionary meaning of loitering refers to someone being in a public place with no legitimate purpose. Loitering offenses are enumerated in the Penal Law under sections 240.35, 240.36, and 240.37.

A person is guilty of Loitering under New York law when he/she loiters or remains in a public place:

• For gambling purposes (Penal Law § 240.35(2))
• While masked, except for masquerade parties (Penal Law § 240.35(4))
• At or near a school (Penal Law § 240.35(5))
• At or near a transportation facility in order to engage business or entertain people (Penal Law § 240.35(6))
• To buy or use drugs (Penal Law § 240.36)
• For engaging in prostitution (Penal Law § 240.37(2))
• To patronize a prostitute (Penal Law § 240.37(3))
• For promoting prostitution of others (Penal Law § 240.37(4))

Most of these offenses are violations. However, when drugs are involved it is a class B misdemeanor punishable by up to 90 days in jail. Loitering to engage in prostitution or to patronize a prostitute can also, in some circumstances, be elevated to a class B misdemeanor. And when it’s done for promoting prostitution, it is a class A misdemeanor punishable by up to a year in jail.

Prior Constitutional Challenges

Previous versions of New York’s law penalized those who loitered for the purpose of begging, for finding a sexual partner, and for not having a reason to be where they were. Those laws have since been found unconstitutional for violating the US Constitution. As such, several sections of the law have been removed.

For example, in Loper v. New York City Police Department, a federal court considered a challenge to New York’s law prohibiting loitering for the purpose of begging. In that case, the Second Circuit found that begging constitutes speech, and held that the law was unconstitutional as a violation of the First Amendment to the US Constitution.

Are Certain People Targeted?

There has been issues through the years with officers charging persons with Loitering for the Purpose of Engaging in a Prostitution Offense. In general, challenges to arrests deal with assumptions made by the police officers based on the way the arrested person dressed. Examples include wearing skirts and high heels, tight pants or leggings, and short dresses. Other assumptions include being in a place known for prostitution, carrying condoms, or having a prior arrest for the charge.

Advocacy groups are also claiming that police unfairly target trans women and women of color. A NYC Council Speaker has even called for the repeal of the law based on this issue. While overall prostitution-related charges have declined, loitering arrests skyrocketed in NYC in 2018.

There, the arrests were disproportionately concentrated in immigrant-heavy neighborhoods in Queens and Brooklyn. Last year, 94% of the people arrested for loitering in NYC were black or Latino. And this can have serious implications for non-citizens. A prostitution-related arrest can lead to deportation, and a sealed case can negatively impact a person’s asylum or green card application.

References

• William Glaberson, “Long Fight Ends Over Arrests for Loitering,” New York Times (Feb. 7, 2012). Available at: https://www.nytimes.com/2012/02/08/nyregion/new-york-settles-suit-on-illegal-arrests-for-loitering.html (last accessed May 17, 2019).
• Loper v. New York City Police Department, 999 F.2d 699 (2nd Circuit 1993).
• Emma Whitford, “Council Speaker tells Albany to repeal ‘archaic’ loitering law without decriminalizing sex trade,” Queens Daily Eagle (May 16, 2019). Available at: https://queenseagle.com/all/corey-johnson-loitering-law-sex-work-decrim (last accessed May 17, 2019).
• Noah Goldberg, “Activists slam NYS law that criminalizes loitering for prostitution,” New York Daily News (Feb. 25, 2019). Available at: https://www.nydailynews.com/new-york/ny-metro-law-loitering-for-prostitution-20190225-story.html (last accessed May 17, 2019).