People v. Howard, 2017 IL 120443 (March). Episode 323 (Duration 4:52)

Illinois Supreme Court upholds the constitutionality of anti loitering statute for sex offenders. 

Facts

Defendant dropped his girlfriend off at her children’s school so she could deliver some lunches.

He waited in the car as she ran inside.

An officer noticed how the car was parked and discovered defendant was a registered child sex offender.

Charges

He was arrested for loitering in front of a school. See 720 ILCS 5/11-9.3(b).

The law says that…

“(b) It is unlawful for a child sex offender to knowingly loiter within 500 feet of a school building or real property comprising any school while persons under the age of 18 are present in the building or on the grounds, unless…”

A complete list of Illinois charges exists here.

Issue

Defendant asked the Illinois Supreme Court to find the statute unconstitutionally vague.

Defendant says he was not loitering.

Loiter Means

Subsection (d)(11) of section 11-9.3 sets forth three statutory definitions of the term “loiter”: Loiter means:

720 ILCS 5/11-9.3(d)(11).

Legitimate Purpose

Defendant maintains that he had a legitimate purpose for being within 500 feet of a school while children were present—he was waiting for his friend to deliver lunches to her grandchildren.

Thus, according to defendant, he was not sitting “idly” in his car but was, instead, sitting with a legitimate purpose.

Statutory Interpretation

The Illinois Supreme Court did not agree with defendant’s interpretation.

The language “whether or not the person is in a vehicle” in subsection (d)(11)(i) is a phrase of expansion, not limitation. 720 ILCS 5/11-9.3(d)(11)(i). The phrase clarifies that the term “sitting idly” applies to both child sex offenders on foot as well as those in vehicles.

Nothing in the legislature’s use of the phrase suggests that the terms “standing” and “remaining” would not also apply to child sex offenders in vehicles.

In addition, the term “remaining” is separated from the term “sitting idly” by the word “or.” The word “or” ordinarily is used in the disjunctive sense, meaning that the members of the sentence that it connects may be applied separately. Because the term “remaining” is set off by the word “or,” it constitutes an independent basis for finding that a child sex offender is loitering.

To “remain” means “to stay in the same place.” Webster’s Third New International Dictionary 1919 (1993).

A person need not have an illegitimate purpose for staying in one place in order to commit an act of “remaining.”

This “Loiter” Is Different

Thus, under the plain language of subsection (d)(11)(i), a child sex offender may “loiter” within the meaning of section 11-9.3(b) simply by committing the act of knowingly remaining or staying within 500 feet of a school while persons under 18 are present.

The offender’s purpose for being near the school, under this definition, is not relevant.

Due Process

Principles of due process require that a criminal statute give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.

In addition, the statute must provide standards that are sufficiently clear to avoid arbitrary and discriminatory enforcement and application by police officers, judges, and juries.

A statute violates due process on the basis of vagueness only if its terms are so ill-defined that the ultimate decision as to its meaning rests on the opinions and whims of the trier of fact rather than any objective criteria or facts. Ordinary people using common understanding can readily deduce that passing through a restricted school zone, and even dropping a person off at the school and then immediately leaving the area, are not acts of “remaining” and, thus, are not prohibited actions under section 11-9.3(b).

On the other hand, it is equally clear that parking one’s car in front of a school and waiting to pick someone up does constitute a prohibited act of “remaining.”

In addition, the act of parking one’s car and waiting for someone provides a sufficiently definite standard for law enforcement officers and triers of fact such that the application of the statute is not rendered arbitrary or discriminatory.

Defendant’s act of knowingly parking his car and waiting for his girlfriend, while school children were visibly present fewer than 20 feet away, clearly falls within the statutory prohibition.

Not Like Morales

The Illinois Supreme Court held that, therefore, that the statute is not unconstitutionally vague as applied to the facts of this case.

Case law finding that anti gang loitering was unconstitutionally vague is inapplicable here.

In that case, the standard was “inherently subjective because its application depends on whether some purpose is ‘apparent’ to the officer on the scene.” The ordinance therefore conferred an arbitrary and, thus, unconstitutional authority on law enforcement officers to determine what activities constituted loitering. This case is distinguishable. While the ordinance in Morales applied to all persons, whether gang members or not, section 11-9.3(b) applies only to child sex offenders.

Moreover, while the ordinance in Morales applied in all public places, section 11-9.3(b) applies only to areas within 500 feet of schools and only when persons under the age of 18 are present. Most importantly, however, the key holding of Morales has no relevance here.

Morales holds that a law that defines loitering as remaining in one place for “no apparent purpose” is unconstitutionally vague.

Subsection (b)(11)(i) does not define loitering in this way.

Morales simply does not speak to the type of statute at issue here, i.e., one that defines loitering as simply remaining in one place, regardless of the reason. And Morales does not hold that such a statute is unconstitutionally vague.

The statute required the State to prove that defendant, a child sex offender, knowingly remained within 500 feet of school while persons under 18 years of age were present. The evidence was sufficient to meet this standard.

Compare & Contrast To…

• People v. Pearse, 2017 IL 121072 (March) (evidence presented by the State failed to establish a violation of section 3 of the Act, the section specified in the indictment)
• People v. Pepitone, 2018 IL 122034 (April). Episode 497 (Duration 6:20) (The Crime Against Being A Sex Offender At A Park Is Back On The Table)
• People v. Green, 2018 IL App (1st) 143874 (June). Episode 512 (Duration 6:09) (Gun Laws Banning Firearms 1,000 Feet From Protected Places Are Unconstitutional)
• People v. Bell, 2018 IL App (1st) 153373 (June). Episode 513 (Duration 7:40) (Gun Laws Banning Firearms In Protected Places Are 100% Constitutional)