"Move On" Orders as Fourth Amendment Seizures

Stephen E. Henderson: Associate Professor, Widener University School of Law. Yale Law School (J.D., 1999); University of California at Davis (B.S., 1995). I wish to thank Erin Daly, Joshua Dressler, Lawrence Rosenthal, and Leonard Sosnov for their thoughtful comments on previous drafts, and Eric Lubin for his able and enthusiastic research assistance.

I. Introduction

A twenty-three-year-old Arab man sits on a bench. An officer approaches and orders that he "move on." "Why? Where must I go?," he might inquire. "Because I said so, and anywhere but here," will serve as our response.

If this park-bench sitter were engaged in protected First Amendment expression, he may have constitutional grounds for refusing to depart.1 If the bench were located within his private property, he might prevail under the Fourth Amendment.2If the authority for the order to disperse were a vague law, he might look to the Fifth or Fourteenth Amendment's Due Process Clause.3If he was the only one ordered to leave despite being surrounded by similarly-situated Anglo-Americans, meaning he was selected based on race, he might successfully assert equal protection.4

But what if the particular facts render these arguments impossible? Is there a federal constitutional right to remain, absent some legitimate government need to the contrary, or is our park- bench sitter solely dependent on state law for any potential redress? Three Justices of the Supreme Court have posited the existence of such a constitutional right. In City of Chicago v. Morales , in the context of striking down Chicago's Gang Congregation Ordinance, Justices Stevens, Souter, and Ginsburg identified a "freedom to loiter for innocent purposes," meaning there is a constitutional right "to remain in a public place of . . . choice."5 But in a biting dissent Justice Scalia ridiculed the notion that there is any such right,6 and it has not yet achieved any significant traction.7

A "move on" ("MO") order like that directed to our hypothetical young man is a subset of what can be termed "anywhere but here" ("ABH") orders, in which the government, either via legislation or purely executive action, does not detain a person-the prototypical imposition on liberty-but instead requires that a person not occupy a certain space. In its most limited manifestation, the government requires that a person "move on" from his or her current location, be it a park bench or an apartment, but does not otherwise restrict that person's continued freedom of movement. This Article uses the term "MO order" to describe such a demand. The restriction becomes more significant as the prohibited area is enlarged, perhaps encompassing a public park, a particularly lawless area of town, or an entire system of public parks or other traditional gathering places. The term "ABH order" includes greater geographic restraints.

As the prohibited area grows, so does the imposition on potential liberties. Even if there is no "right to remain" in our Federal Constitution, there is a right to travel inter state,8 and there might similarly be a right to travel intra state to the extent necessary to engage in the ordinary activities of life.9 Thus, as the geographic scope of an ABH order increases, so too does the likelihood that it will substantially impact a protected liberty interest. Given contemporary society's attempts to protect the vulnerable and prevent future crime by excluding suspect individuals from certain areas,10 this could become a vibrant area of law.

However, this Article will focus on the most minimal restraint, the executive MO order like that delivered to our hypothetical park- bench sitter. This is the narrowest ABH order. Still, many probably share the intuition of the Morales plurality that there must be some "right to remain." At a "gut level," it seems totally unacceptable for the government to move innocent and peaceable persons at whim and without reason, for it can work a significant indignity even if more rarely a significant inconvenience. As Justice Douglas opined for a unanimous Court in Papachristou v. City of Jacksonville ,11"loafing" and "loitering" are

historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities [along with 'strolling' and 'wandering'] have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence.12

On the other hand is the need to preserve order. According to Justice Scalia, "No modern urban society-and pr...

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