To: House Judiciary Committee
From: Christopher T. Dodson, Executive Director
Subject: House Bill 1383 - Loitering
Date: February 1, 2017

This morning, being a Wednesday morning, people are outside the abortion clinic in downtown Fargo. They come to pray and bear witness. Some may try to counsel women arriving and leaving the clinic. They do this every week.

It is also very likely that every week there is someone who feels that the presence of these prayers and sidewalk counselors cause “justifiable and reasonable alarm or immediate concern for the safety of other individuals or property in the vicinity.” It could be a clinic employee, a patient, or a passerby.

There lies the fundamental problem with this bill. It allows for investigation, interrogation, and possible arrest and prosecution based on an individual complainant’s subjective perception. It is not enough that those outside the abortion clinic are acting lawfully. The definition of “loiter and prowl” includes actions that are currently legal.(1) Even if the individual is not prosecuted, it requires a law enforcement officer to, in each case, investigate whether a violation of the statute has occurred. Similar laws in other jurisdictions, though intended for other purposes, have been used to harass people praying and counseling outside abortion clinics.

The subjectivity in this bill could also be used to harass persons who appear different or “may not be wanted” such as homeless persons, people with mental illnesses, and religious minorities.

The purpose of this bill could be to address a real problem, but its breadth and subjectivity make it a tool to be used against peaceful and prayerful persons and those at the margins of society. We urge a Do Not Pass recommendation.

1. Page 1, lines 22-24 state: “As used in this section, ‘loiter and prowl’ means to be dilatory, to stand idly around, to linger, delay, or wander about, or to remain, abide, or tarry in a public or private place without a lawful reason.” (emphasis added.) Having a lawful reason is a defense only to remaining, abiding, and tarrying. It is not a defense to being dilatory, standing idly around, lingering, delaying, or wandering about.