For the past several years, I have asked the following question on my Law and Policy midterm examination:

Town officials in Whitebread, Indiana, became concerned by the number of “undesirables” who were “hanging out” in Whitebread. They passed an ordinance against loitering, defined as “Three or more persons congregating in a manner annoying to passersby.” Is this ordinance enforceable? Why or why not?

The correct answer is that the ordinance is unenforceable, because its language is unconstitutionally vague. What is “annoying” is very subjective–what annoys me may not bother you at all. The rule of law requires far more specificity–any statute, to be enforceable, must be sufficiently clear and specific to allow citizens to know what sorts of behaviors cross the line.

Most of my students answer this correctly.  I discovered that Indiana’s lawmakers know less than my students when I read this about a challenge to our public intoxication law in the Indianapolis Star.

 It takes more than just being drunk to get convicted of public intoxication in Indiana. The law says you also have to be annoying.

As the lawyer challenging the standard correctly pointed out, this language doesn’t tell the public what conduct may annoy another person.

“There needs to be some standard,” she told the justices, “so a person can read the law and know what (conduct) is prohibited.”

A three-judge panel from the court of appeals agreed when it found the “annoying” standard unconstitutionally vague.

The requirement that laws be sufficiently specific to allow citizens to understand what they can and cannot do is fundamental to the rule of law. Any of my former students could have told the General Assembly that “annoying” wasn’t a constitutionally-compliant standard.

I find it very annoying that Hoosier lawmakers evidently don’t know the most basic requirements of the constitution and rule of law.


  1. “I find it very annoying that Hoosier lawmakers evidently don’t know the most basic requirements of the constitution and rule of law.” Sheila, I assume your classes do not include criminal law but would like answers to questions regarding the lack of criminal charges filed against two people with criminal histories who preyed on elderly women in a small area of the east side in a two week period in April. Could the lack of charges in both criminal and civil be put to all law classes – maybe students could find solutions to problems lawmakers appear unable to do.

    I find this situation more than annoying; I find it to be one of the primary reasons criminals are so quickly turned loose on our streets to prey on more victims. As always I will use my personal situation regarding this issue due to being mugged, injured and robbed on my driveway at 11:00 a.m. on April 21, 2014. The response I received from the deputy prosecutor, Anne Frangos, was not satisfactory nor did it appear – to me – to be concerned about future crimes by the alleged criminals who have been arrested for robbing four elderly women in broad daylight. The charges filed do not emphasize the propensity for violence evidenced by the man who attacked and injured me and three others. The DP stated blatantly, “….the more charges filed, the more charges we have to prove.” I thought this is what they get paid for with our tax dollars.

    I questioned why assault charges were not included against Mark Jones; he elbowed Carrie Lee, age 90, in the face which broke her glasses and caused facial cuts and knocked one tooth out of her dentures. If anyone saw the news broadcasts of my injuries on Channel 8, Channel 6 and Fox 59 News, you are aware of the extent of my head and facial injuries, two of which appear to be permanent. The DP also stated there is no Assault charge in the law here; she then explained levels of Battery charges. Ms. Lee and I seem to fit the category of “Battery A misdemeanor – rude, angry, insolent touching w/injury.” I question why this is considered a misdemeanor? The DP did state, “The type of injuries that you as well as the other women sustained are considered misdemeanors.”

    She also stated, “We won’t file separate assault charges on Mark Jones because the “element” is included in the B felony Robbery charge. (Quotes are her’s and note the word Assault in her response) It reads as follows:

    Mark Jones and Lindsey Jones, on or about April 21, 2014, did knowingly take from the person or presence of JoAnn Green property, that is: purse and contents, by using or threatening the use of force on JoAnn Green which resulted in bodily injury, that is: pain, to JoAnn Green.”

    She did admit I suffered more than “pain”; also there is only one Fraud charge against the three who were arrested after the fourth victim was attacked and robbed. Mark and Lindsey Jones used my two credit cards a total of EIGHT times that day but no charges will be filed. Who makes these laws?

    The letter I received from Deputy Prosecutor Anne Frangos was sent to the wrong address; in the letter she stated, “the address listed above is incorrect”. Fortunately mail is sorted initially by zip code and my mail carrier recognized my name and delivered the mail to my home. Three television newscasters and their cameramen and an Indianapolis Star reporter managed to have my correct address and find their way to my home but the Prosecutor’s Office couldn’t. Our tax dollars in action!

  2. There are many transactions between people that are negotiated. The concept of law is to empower the state to enforce limits on actions towards others that are based on power rather than agreement. This is, of course one of the main reasons we left the apes in the dust.

    However the state would move towards dysfunctional if it attempted to regulate behavior between people that can reasonably be settled by normal social skills. Negotiation.

    Thus if someone is “annoying” you, there are many options outside of the use of power to resolve the situation.

    I’m reminded of a scene that I witnessed on the Paris subway where an extremely elderly woman went face to face with a large young man who played his shoulder mounted “boom box” loud enough to annoy others. I don’t know enough French to understand the details of their negotiation but I do know, and did enjoy, the outcome.

    Law is about the regulation of power, but is, of course, based on the power of the state. Freedom is not about lives free from disturbance but rather lives lived within capabilities that can reasonably expected from functional adults without resorting to physical force or predatory guile.

  3. Perhaps being intoxicated (specific percentage of blook alcohol. please) in public (as defined, of course) and then perhaps add conduct such as exceeding a certain specified decibel limit by vocal or mechanical means. As in: “A noisy noise annoys an oyster”.

    Except of course our Indiana lawmakers don’t legislate for them. They’re concerned with HUMAN welfare.

    Well, the ARE, aren’t they?

  4. I understand you approached this from a legal standpoint, Sheila, but I wish you’d have researched the political side before passing judgment condemning the legislature. The background shows why the legislature should be commended instead of being condemned.

    Until 2012, you could be convicted in Indiana for being intoxicated in a public place. No alcohol test had to be admitted. The officer’s declaration that you were intoxicated was enough. As for as a public place…virtually everything except one’s home is a public place. Drunk in a bar? That’s a public place. Drunk as a passenger in a car? That’s a public place. A few years ago, a person in Indianapolis got convicted of public intoxication even though she di the responsible thing of getting a designated driver instead of driving herself. Didn’t matter…a car is a public place.

    A lot of people didn’t think Indiana’s public intoxication laws were fair and tried to narrow it. In 2012, Senator Mike Young introduced a bill that said in addition to being intoxicated in public the person had to:
    1) endangers the person’s life;
    (2) endangers the life of another person; or
    (3) breaches the peace or is in imminent danger of breaching the peace.

    Young and other legislators like him were taking on an enormously powerful lobby, perhaps the most powerful, law enforcement. Sheriffs, police chiefs, the Attorney General, locally-elected prosecutors all fought bitterly against any change to the public intoxication law. They liked the blank check to basically arrest anyone by saying they’re were intoxicated in public. But Young and a coalition of Republicans and Democrats stayed strong and got the p.i. law amended.

    Unfortunately in order to get the bill through the fierce opposition the bill got watered down with things like “annoying” (though I would point out that’s the language in our criminal harassment law) and “alarm.” But the fact is our legislature did stand up to the very powerful law enforcement community and made a much needed change that that community didn’t want. I agree that “annoying” is vague? But even with it, is the law much better than the previous law which basically gave police officers absolute power to arrest anyone in public simply by saying they’re intoxicated? Absolutely. I’m sure if you talked to Sen. Young, he would have preferred to repeal the law in its entirety. But Young new perfectly well that wouldn’t sell. So he went for 3/4 of the loaf in order a positive change made for the people of Indiana and at the end of the legislative process he ended up with 1/2. Young also knew that down the road there would be opportunities to further improve the law. But the first thing to do is get a change on the books.

    I don’t condemn our legislature for what I did. I applaud them for standing up and making a much needed change despite an opposition with a lot of political clout.

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