VA: Virginia Court Rejects Vague Loitering Law

In Commonwealth v. Richard Cox, the Circuit Court of Arlington County struck down Virginia’s sex-offender “loitering” statute as unconstitutionally vague, reinforcing a fundamental principle that is often forgotten when laws target registrants: constitutional protections apply to everyone.

The Virginia law made it a felony for certain individuals on the sex offender registry to “loiter” within 100 feet of schools and child day-care facilities. While the legislature chose to criminalize “loitering,” it never defined what that term actually meant. As a result, the court found that ordinary people had no way of knowing when lawful conduct crossed the line into criminal conduct. Was it illegal to stop and tie a shoe? Wait for a ride? Stand on a public sidewalk? Walk slowly through an area? The statute provided no answers.

In dismissing the charges against Richard Cox, the court held that the law violated due process because it failed to provide fair notice of what conduct was prohibited and gave law enforcement officers virtually unlimited discretion to determine who was committing a crime. The court relied heavily on the United States Supreme Court’s decision in City of Chicago v. Morales, which similarly struck down an anti-loitering ordinance because it left citizens guessing about what behavior was prohibited and encouraged arbitrary enforcement.

Perhaps the most important aspect of the decision was the court’s rejection of the argument that laws targeting registrants should be given special treatment. The Commonwealth argued that the statute applied only to individuals with prior sex offense convictions, but the court emphasized that constitutional safeguards do not disappear simply because a person is unpopular or belongs to a politically disfavored group. The Due Process Clause protects everyone, and legislatures must still draft criminal statutes with sufficient clarity and precision.

The reasoning in Cox is particularly relevant as Florida continues to expand restrictions and criminal penalties imposed on people required to register. While the specific provisions differ, the Virginia decision serves as a reminder that lawmakers cannot simply create broad prohibitions and leave registrants, law enforcement, prosecutors, and courts to figure out what they mean later. Criminal laws must establish clear standards, provide meaningful notice, and avoid granting officers unfettered discretion to decide what conduct is lawful and what conduct is criminal.

The decision also highlights a recurring problem with many registry-related laws. Legislatures often justify sweeping restrictions by invoking public safety, but courts have repeatedly recognized that constitutional rights do not yield simply because a law is directed at registrants. Whether the issue involves residency restrictions, presence restrictions, reporting requirements, internet restrictions, or other criminal prohibitions, the Constitution still requires clear rules and objective standards. A person should not face arrest, prosecution, or imprisonment based on vague language that can mean different things to different officers.

For advocates challenging Florida’s laws, the Virginia ruling provides another example of a court recognizing that constitutional protections remain fully applicable in the registry context. The decision reinforces the argument that laws affecting registrants must be carefully drafted, narrowly tailored, and sufficiently clear so that ordinary people can understand what is required of them. Courts may disagree on the ultimate outcome of particular challenges, but Cox stands as a powerful reminder that due process does not become optional simply because the government is regulating a politically unpopular class of citizens.

As litigation challenging Florida’s new law moves forward, the Virginia decision offers an encouraging signal that some Judges remain willing to scrutinize registry-related restrictions and enforce the constitutional limits that protect all Americans. Public safety is an important governmental interest, but it cannot come at the expense of the fundamental constitutional requirement that criminal laws be clear, understandable, and fairly enforced.

VA – Loitering