Sacramento's loitering law pulled 16 years after Supreme Court ruled Chicago's unconstitutional

An unconstitutional loitering law has been used to cite or arrest individuals in Sacramento at least 13 times since January 2010, but it’s finally off the books.

Senior Deputy City Attorney Michael Benner said the decision to pull Section 9.04.030 of the Sacramento City Code was based on a U.S. Supreme Court ruling.

In 1999, justices ruled 6-3 against Chicago’s anti-loitering ordinance. According to the American Civil Liberties Union, the ordinance allowed police to arrest 45,000 mostly black and Latino males during a three-year span on the disputed grounds that they were gang members.

Benner downplayed the city code amendments, adopted during an April 23 procedural vote by the city council, saying it’s something the city attorney’s office does every couple of years “as a proactive thing.”

In the years since the 16-year-old ruling, police and the city attorney’s office have fitfully employed Sacramento’s loitering prohibition.

Benner said the police department has submitted approximately 50 loitering citations to his office since early 2002, with the office filing on roughly 20 to 25 of them, the last one in mid-2013.

Loitering is a misdemeanor-level offense under the city’s definition, though Benner said his office had “pure discretion” to downgrade any violation to a monetary infraction. Without reviewing each loitering violation the office prosecuted, though, he couldn’t say how often that had been done.

“It’s not like we got in trouble for using it,” he said.

Police spokesman Sgt. Doug Morse said department records indicated that officers have filed six loitering reports since January 2013. “Some of the cases were cite-and-release, and others were booked for a more serious crime with this section being added to the booking charges of those taken into custody,” he wrote in an email.

Officers filed another seven loitering-based reports between January 2010 and January 2013, Morse added.

Last month’s decision to repeal the city’s anti-loitering law—an umbrella infraction that can be applied to homeless individuals, prostitutes, protesters and anyone deemed to be “causing public inconvenience or annoyance”—probably won’t translate into a win for civil rights advocates, said one attorney who specializes in police misconduct cases.

“I don’t think it is going to [affect] their ability to hassle protesters if they want to,” said Stewart Katz. The criminal defense attorney said law enforcement can still cite unlawful assembly, the absence of a permit or interference with government business in making arrests. As for sex workers, Katz said law enforcement have other options.

Law enforcement can use any legal infraction as a probable cause for contacting someone. When it comes to these precursor crimes, they’re rarely charged, as officers and prosecutors prefer to lead with more serious charges, like solicitation, possession or disturbing the peace.

Kristen DiAngelo, an activist for sex workers, said most working women don’t know the pretext for why they’re being stopped, and comply with officers’ commands because they’re too scared not to. “Other people have this idea of rights, there has to be a reason for stopping you,” she said. “Working girls, you just think you’re wrong and that police will take you in if they want.

“I don’t think the girls right now even know why they’re stopped.”

Asked whether repealing this misdemeanor-level code would hamper police’s abilities in any way, Morse said it wouldn’t. Laws, ordinances and city codes are updated, added and deleted on a routine basis, he said; “We do not anticipate any significant impacts to our daily operations.”

For the past few years, Benner has volunteered to lead this effort, collecting staff recommendations of outdated or redundant city codes to abolish.

Falling under the redundant category, Benner’s proposal also called for repealing city code prohibitions against loitering for the purposes of engaging in drug activity, display and distribution of drug paraphernalia, and animal cruelty, because all three are already illegal under state law.