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18-9-112. Loitering - definition - legislative declaration.

Statute text

(1) The word "loiter" means to be dilatory, to stand idly around, to linger, delay, or wander about, or to remain, abide, or tarry in a public place.

(2) A person commits a class 1 petty offense if he or she, with intent to interfere with or disrupt the school program or with intent to interfere with or endanger schoolchildren, loiters in a school building or on school grounds or within one hundred feet of school grounds when persons under the age of eighteen are present in the building or on the grounds, not having any reason or relationship involving custody of, or responsibility for, a pupil or any other specific, legitimate reason for being there, and having been asked to leave by a school administrator or his representative or by a peace officer.

(3) It shall be an affirmative defense that the defendant's acts were lawful and he was exercising his rights of lawful assembly as a part of peaceful and orderly petition for the redress of grievances, either in the course of labor disputes or otherwise.

(4) The general assembly hereby finds and declares that the state has a special interest in the protection of children and, particularly, in protecting children who attend schools because required to do so by the "School Attendance Law of 1963", article 33 of title 22, C.R.S., and the prohibition of loitering in subsection (2) of this section is enacted in furtherance of these interests.

History

Source: L. 71: R&RE, p. 470, 1. C.R.S. 1963: 40-9-113. L. 73: p. 539, 9. L. 81: (2)(e) amended, p. 738, 24, effective July 1. L. 82: (2)(d) amended and (4) added, p. 322, 1, effective March 5. L. 97: (2) amended, p. 1547, 22, effective July 1.

Annotations

Cross references: For affirmative defenses generally, see 18-1-407, 18-1-710, and 18-1-805.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "Mass Picketing and the Constitutional Guarantee of Freedom of Speech", see 22 Rocky Mt. L. Rev. 28 (1949). For article, "Vagrants, Criminals and the Constitution", see 40 Den. L. Ctr. J. 314 (1963). For article, "Review of New Legislation Relating to Criminal Law", see 11 Colo. Law, 2148 (1982).

Annotator's note. Since 18-9-112 is similar to former 40-8-19, C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.

Purpose of section. Measures to cope with vagrancy have as their purpose the safety and good order of the community, by seeking to nip crime in one of its formative settings. Thus, vagrancy laws find sanction in the exercise of the police power. Dominguez v. City & County of Denver, 147 Colo. 233, 363 P.2d 661 (1961), overruled on other grounds in Arnold v. City & County of Denver, 171 Colo. 1, 464 P.2d 517 (1970).

The term "begging" is sufficiently clear. Goldman v. Knecht, 295 F. Supp. 897 (D. Colo. 1969).

Subsection (2)(c) does not satisfy constitutional due process requirements. People v. Gibson, 184 Colo. 444, 521 P.2d 774 (1974).

Because it does not require loitering coupled with other overt conduct. Subsection (2)(c) violates constitutional due process because it fails to require that loitering be coupled with any other overt conduct, but rather provides the loitering need only be coupled with state of mind having "the purpose of . . . deviate sexual intercourse". People v. Gibson, 184 Colo. 444, 521 P.2d 774 (1974).

Former subsection (2)(d) was unconstitutionally vague in violation of due process of law under 25 of art. II, Colo. Const. People in Interest of C.M., 630 P.2d 593 (Colo. 1981).

Right of personal liberty protects travel and safe conduct. In interpreting constitutional provisions providing for the right to enjoy life and liberty, the right of personal liberty consists in the power of locomotion -- to go where one pleases, and when, and to do that which may lead to one's business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. One may travel along the public highways or in public places, and while conducting themselves in a decent and orderly manner, disturbing no other and interfering with the rights of no other citizens, there they will be protected under the law, not only in their persons, but in their safe conduct. Dominguez v. City & County of Denver, 147 Colo. 233, 363 P.2d 661 (1961), overruled on other grounds in Arnold v. City & County of Denver, 171 Colo. 1, 464 P.2d 517 (1970).

Former vagrancy provision held unconstitutional under the equal protection clause of the federal constitution. The former section declaring idleness or indigency coupled with being able-bodied must be held beyond the power of the state legislative body. The statute did not require either act or behavior; it dealt with condition. Insofar as the statutory prescription seeks to legislate against status, it is in conflict with the substantive due process limitation of the fourteenth amendment of the federal constitution. Furthermore, a statute which forbids an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. Goldman v. Knecht, 295 F. Supp. 897 (D. Colo. 1969).