Is Arkansas's loitering law (the version updated in 2023) constitutional, and can police give tickets to people who hang around on a sidewalk or roadway?
Plain-English summary
Arkansas's loitering statute, A.C.A. § 5-71-213(a)(3), has had a turbulent constitutional history. The 1995 version banned begging in public places. The Eastern District of Arkansas struck it down in 2016 as a content-based restriction on speech that flunked strict scrutiny (begging is protected speech under the First Amendment). The 2017 amendment narrowed the ban to charitable solicitation that was harassing, threatening, or hazardous. The Eighth Circuit struck that one down too, in 2019, because it was underinclusive. It targeted charitable solicitation specifically while leaving political solicitation and other potentially disruptive speech unregulated.
In 2023, the General Assembly tried again, this time removing the "for the purpose of asking for anything as charity or a gift" language entirely. The current statute prohibits loitering on a sidewalk, roadway, or public right-of-way (or in a public parking lot, public transportation, or on private property) when the loitering is "in a harassing or threatening manner," "in a way likely to cause alarm to another person," or "[u]nder circumstances that create a traffic hazard or impediment."
Senator Mark Johnson asked the AG whether this version is constitutional and whether the Conway Police Department can lawfully ticket people for violating it. The Conway City Attorney has been refusing to prosecute these tickets, calling the statute unconstitutional.
Attorney General Tim Griffin opined that the 2023 version is presumed constitutional and likely survives both First Amendment and vagueness challenges. The current statute is content-neutral (it doesn't target what is being said), so it is reviewed under intermediate scrutiny rather than strict scrutiny. Under intermediate scrutiny, the government must show (1) a significant interest, (2) narrow tailoring, and (3) ample alternative channels for protected speech. The AG concluded all three are satisfied: public safety is a significant interest, the statute targets only harassing, alarming, or traffic-blocking conduct, and ample non-criminalized speech remains.
On vagueness, the statute uses terms ("harassing," "alarming," "traffic hazard or impediment") that the courts have already approved in Arkansas's disorderly-conduct statute. They are widely understood and require no guesswork. So the statute does not invite arbitrary enforcement.
On enforcement authority, the AG confirmed that under Arkansas Rule of Criminal Procedure 5.2, certified law-enforcement officers can issue citations for misdemeanor violations of the loitering statute when they have reasonable cause to believe a violation occurred.
What this means for you
If you are a police officer in Arkansas
You can issue citations for violations of A.C.A. § 5-71-213(a)(3) when you have reasonable cause to believe a violation occurred. The conduct must be loitering plus one of the three triggers: harassing/threatening manner, way likely to cause alarm to another person, or circumstances that create a traffic hazard or impediment. Mere presence on a sidewalk or roadway is not enough. Document the specific harassing, alarming, or traffic-blocking conduct.
The AG's opinion does not bind a court. If a defendant challenges your citation, the case will be decided by an Arkansas court, possibly with appellate review. The AG predicts the statute will survive these challenges, but until a controlling Arkansas appellate decision exists, it is not certain.
If you are a city attorney or prosecutor
The AG's opinion gives you support for moving forward with prosecutions. The Conway City Attorney's position (the law is unconstitutional) is one reasonable reading; the AG's reading is another. If you do prosecute, expect challenges to the conviction in district court and appellate review.
If you are inclined to follow the Conway approach and decline to prosecute, document your basis carefully. The AG's opinion creates real friction with that approach, since it concludes the statute is constitutional and enforceable.
If you are a defense or civil-liberties attorney
The 2023 version is more likely to survive constitutional challenge than its predecessors because it is content-neutral and narrowly tailored. But two avenues remain. First, an as-applied challenge: even a facially valid statute can be unconstitutional in a particular case. The McCraw v. City of Oklahoma decision (cited in the opinion) shows how a similar statute can fail intermediate scrutiny when the city cannot prove its asserted public-safety justification. Second, a vagueness challenge: terms like "harassing manner" and "alarm" might still be vague as applied to particular conduct.
If you are someone who might be ticketed (a panhandler, a protestor, an unhoused person on a sidewalk)
You can still be on a sidewalk, in a roadway, or on a public right-of-way without violating the statute. The trigger is one of the three additional features: harassing/threatening, alarming, or traffic-blocking conduct. Speech alone is not enough. Asking for help, holding a sign, or sitting on a sidewalk are not, by themselves, prohibited. The statute reaches the harassing/alarming/traffic-blocking modifications.
If you are a city council member or local policymaker
A.C.A. § 5-71-213(a)(3) gives you a tool to address the actual harms (harassment, traffic obstruction) without the under-inclusion problem the 2017 version had. Local ordinances paralleling this statute should be careful to track its content-neutral structure.
Common questions
Q: What's the current text of the loitering statute?
A: A.C.A. § 5-71-213(a)(3) prohibits "[l]inger[ing] or remain[ing] on a sidewalk, roadway, or public right-of-way, in a public parking lot or public transportation vehicle or facility, or on private property: (A) In a harassing or threatening manner; (B) In a way likely to cause alarm to another person; or (C) Under circumstances that create a traffic hazard or impediment."
Q: Why was the earlier version struck down?
A: The 1995 version banned begging outright, which is protected speech under the First Amendment, and it failed strict scrutiny. The 2017 version targeted only charitable solicitation in harassing/threatening ways, but it was underinclusive: it singled out charitable speech for criminalization while leaving other potentially disruptive speech (like political solicitation) untouched. The Eighth Circuit struck it down for that reason in Rodgers v. Bryant.
Q: What's "intermediate scrutiny"?
A: A judicial test for content-neutral restrictions on speech. The government must show (1) a significant interest, (2) the law is narrowly tailored, and (3) the law leaves ample alternative channels for protected speech. Less demanding than the "strict scrutiny" test that applies to content-based restrictions.
Q: Why is the current version content-neutral?
A: Because the prohibition does not turn on what the loiterer says. The statute targets harassing, alarming, or traffic-blocking conduct. The speaker can be a panhandler, a political activist, a religious proselytizer, or a chess player; what matters is the manner of conduct, not the topic.
Q: Is "harassing" or "alarming" too vague to enforce?
A: The AG argues no, because Arkansas's disorderly-conduct statute (A.C.A. § 5-71-207) uses similar terms and has been upheld against vagueness challenges. The Eighth Circuit (Duhe v. City of Little Rock) treated those terms as "widely understood restrictions that require no guess[work]."
Q: Can a police officer just ticket me for being on a sidewalk?
A: Not under § 5-71-213(a)(3). The officer needs reasonable cause to believe one of the three additional features (harassing/threatening, alarming, or traffic-blocking) is also present.
Q: What's a Class C misdemeanor?
A: The third-lowest classification of crime in Arkansas. It carries a fine of up to $500 and up to 30 days in jail.
Q: Could a court still strike down the statute as applied to me?
A: Yes. Even a facially valid statute can be unconstitutional in particular cases (an as-applied challenge), or it can be applied in a discriminatory way that triggers other constitutional concerns. The AG's opinion is not the final word; courts decide concrete disputes.
Background and statutory framework
Arkansas's loitering statute has been amended three times in response to constitutional litigation. The 1995 version (Act 577 of 1995) was struck down for being a content-based restriction on protected begging speech. The 2017 version (Act 847 of 2017) was struck down for being underinclusive. The 2023 version (Act 255 of 2023) removes the begging-specific language entirely and operates as a content-neutral conduct restriction.
The Rodgers v. Bryant litigation (2016, 2017-2019, 2020) is the dominant precedent. The same plaintiffs challenged each version of the statute. The Eighth Circuit's 2019 opinion is the controlling federal-court ruling on the 2017 version. The 2023 version has not yet been litigated to a final decision in the federal courts.
On First Amendment doctrine, the AG opinion correctly distinguishes between content-based restrictions (subject to strict scrutiny, almost always invalid) and content-neutral time-place-manner restrictions (subject to intermediate scrutiny, often valid). The Clark v. Community for Creative Non-Violence (1984) test for intermediate scrutiny is the primary framework.
On vagueness, Hill v. Colorado, Kolender v. Lawson, and Cameron v. Johnson set out the standards. A statute fails vagueness review when it does not give ordinary people fair notice or invites arbitrary enforcement. Statutes that use terms with established judicial constructions (like the "alarm" and "obstructs traffic" language drawn from Arkansas's disorderly-conduct statute) generally pass.
Two recent Tenth Circuit cases (Evans v. Sandy City and McCraw v. City of Oklahoma) reach opposite results on similar median/loitering ordinances, which is a flag that as-applied challenges to the 2023 Arkansas statute could go either way depending on the record built.
Enforcement authority comes from Arkansas Rule of Criminal Procedure 5.2, which lets law-enforcement officers issue citations for misdemeanors when they have reasonable cause. Rule 1.6 defines "law enforcement officer" broadly as anyone vested by statute with a duty to maintain public order or make arrests for offenses.
Citations and references
Statutes:
- A.C.A. § 5-71-207 (disorderly conduct)
- A.C.A. § 5-71-213(a)(3) (loitering)
- Act 255 of 2023
- Act 577 of 1995
- Act 847 of 2017
- Act 380 of 2019
- Ark. R. Crim. P. 1.6
- Ark. R. Crim. P. 5.2
Cases:
- Rodgers v. Bryant (2016, 2017-2019, 2020) (multiple stages of the same litigation, including 942 F.3d 451 (8th Cir. 2019))
- Speet v. Schuette, 726 F.3d 867 (6th Cir. 2013)
- Reynolds v. Middleton, 779 F.3d 222 (4th Cir. 2015)
- U.S. v. Kokinda, 497 U.S. 720 (1990)
- Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984)
- Hill v. Colorado, 530 U.S. 703 (2000)
- Kolender v. Lawson, 461 U.S. 352 (1983)
- Cameron v. Johnson, 390 U.S. 611 (1968)
- Duhe v. City of Little Rock, 902 F.3d 858 (8th Cir. 2018)
- Evans v. Sandy City, 944 F.3d 847 (10th Cir. 2019)
- McCraw v. City of Oklahoma, 973 F.3d 1057 (10th Cir. 2020)
- State v. Ecker, 311 So. 2d 104 (Fla. 1975)
Prior AG opinions cited:
- Ark. Att'y Gen. Ops. 2003-110, 97-001
Source
Original opinion text
Opinion No. 2025-038
August 8, 2025
The Honorable Mark Johnson
State Senator
Post Office Box 241022
Little Rock, Arkansas 72223
Dear Senator Johnson:
I am writing in response to your request for an opinion regarding the constitutionality and enforceability of Ark. Code Ann. § 5-71-213(a)(3), as amended by Act 255 of 2023, which criminalizes loitering when a person:
Lingers or remains on a sidewalk, roadway, or public right-of-way, in a public parking lot or public transportation vehicle or facility, or on private property:
(A) In a harassing or threatening manner;
(B) In a way likely to cause alarm to another person; or
(C) Under circumstances that create a traffic hazard or impediment.
You state that, since the effective date of Act 255, the Conway Police Department has issued tickets to individuals who are present and remain on a sidewalk, roadway, or a public right-of-way. Further, you state that the Conway City Attorney has dismissed or refused to prosecute those tickets, claiming that "the law does not support the facts" and that "the application of the law is unconstitutional."
Against this background, you ask the following questions:
- Is A.C.A. § 5-71-213(a)(3) constitutional?
Brief response: Arkansas Code § 5-71-213(a)(3), as amended in 2023, is presumed constitutional and will likely survive First Amendment challenges.
- Are law enforcement officers acting within their legal authority under A.C.A. § 5-71-213 when they ticket individuals who are present and remain on a sidewalk, in a roadway, or on a public right-of-way?
Brief response: Yes, a certified law enforcement officer is authorized, according to Arkansas Rule of Criminal Procedure 5.2(a), to issue a citation to any person they have reasonable cause to believe has violated A.C.A. § 5-71-213(a)(3).
DISCUSSION
Question 1: Is A.C.A. § 5-71-213(a)(3) constitutional?
Statutes, such as A.C.A. § 5-71-213(a)(3), are presumed to be constitutional. The burden of proving a statute unconstitutional rests on its challengers. A statute should not be declared unconstitutional unless its conflict with the Constitution is "clear and unmistakable." Courts must uphold a statute "unless it appears to be clearly outside the scope of reasonable and legitimate regulation."
Anti-loitering statutes often face two main constitutional challenges: (1) they may violate the First Amendment by restricting speech or expressive conduct, or (2) they may be unconstitutionally vague under the Fourteenth Amendment by failing to clearly define prohibited behavior or enforcement standards. Earlier versions of A.C.A. § 5-71-213(a)(3) were struck down as content-based restrictions on protected speech. The General Assembly amended the statute in 2023 to address those First Amendment concerns.
- Previous constitutional challenges. Arkansas Code § 5-71-213(a)(3), as amended by Act 577 of 1995, was first challenged in 2016 when plaintiffs argued it violated their First and Fourteenth Amendment rights by criminalizing begging in public places. Courts have long held that begging, panhandling, and charitable solicitation are protected forms of speech. The 1995 version of the statute banned begging in public without linking it to harmful or threatening conduct. The U.S. District Court for the Eastern District of Arkansas ruled the law unconstitutional, holding that such a broad ban could not meet the strict scrutiny required for restrictions on protected speech.
In response, the General Assembly amended the statute in 2017. The revised statute prohibited charitable solicitation only when conducted in a harassing, threatening, or dangerous manner, such as causing alarm or creating traffic hazards. The same plaintiffs again challenged the statute on First Amendment grounds. The Eighth Circuit agreed, ruling that the amended statute did not pass strict scrutiny because it was underinclusive, focusing on charitable solicitation while allowing other potentially disruptive speech, such as political solicitation, to remain unregulated.
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The 2023 amendment. The General Assembly amended the statute again in 2023 and removed the phrase "for the purpose of asking for anything as charity or a gift." Because the 2023 statute no longer targets speech based on its content, it is unlikely to face the same strict-scrutiny analysis that caused the previous versions to be declared unconstitutional.
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First Amendment analysis. If A.C.A. § 5-71-213(a)(3) is deemed content-neutral (which I believe it is), it will be reviewed under intermediate scrutiny. To survive this review, the government must prove that the statute (1) serves a significant government interest (like public safety), (2) is narrowly tailored (i.e., it does not burden substantially more speech than required), and (3) allows ample alternative channels for communication. Courts have reached different conclusions when applying these criteria. Nevertheless, upon reviewing these standards, I find that the government has a compelling interest in prohibiting loitering that is either harassing or alarming, as well as any form that obstructs traffic. In my opinion, the statute is narrowly tailored because it applies only to loitering that is harmful, unlike previous versions that covered broader categories. Moreover, the statute provides many alternative ways for protected speech, specifically, loitering that is non-harassing, non-alarming, and does not disrupt traffic.
A state statute is unconstitutionally vague if it "fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits" or if it "encourages arbitrary and discriminatory enforcement." The concern about minimal guidelines for law enforcement is especially relevant to courts reviewing these statutes. A statute should not be held vague on its face unless it is vague in all possible applications. A statute is not vague simply because close cases exist. Although language can introduce uncertainty, this alone does not render statutes unconstitutional. Referring to resources such as dictionaries or judicial opinions helps clarify meaning.
The current version of A.C.A. § 5-71-213(a)(3) forbids loitering that is harassing, likely to cause alarm to another person, or impedes traffic. The acts those words describe are not fundamentally vague and resemble the language found in Arkansas's disorderly conduct statute. Although that statute has faced challenges regarding vagueness, it has been upheld partly because its terms, such as "inconvenience," "alarm," "hazardous," and "obstructs vehicular or pedestrian traffic", have been interpreted as "widely understood restrictions that require no guess[work]." The same applies to A.C.A. § 5-71-213(a)(3). Moreover, because criminal penalties only apply when a person loiters in a manner that is harassing, alarming, or impedes traffic, the statute does not encourage arbitrary or discriminatory enforcement.
Question 2: Are law enforcement officers acting within their legal authority under A.C.A. 5-71-213 when they ticket individuals who are present and remain on a sidewalk, in a roadway, or on a public right-of-way?
I understand your question to be asking if law enforcement has the legal authority to ticket individuals for violating A.C.A. § 5-71-213(a)(3), a Class C misdemeanor. Arkansas Rule of Criminal Procedure 5.2 authorizes law enforcement officers who have reasonable cause to believe that a person has committed a misdemeanor to issue a citation. Arkansas Rule of Criminal Procedure 1.6 defines a law enforcement officer as "any person vested [by statute] with a duty to maintain public order or make arrests for offenses."
This office has previously issued opinions confirming the authority of certified law enforcement officers to issue citations for misdemeanors and violations. Accordingly, if a certified law enforcement officer has reasonable cause to believe a person has violated A.C.A. § 5-71-213(a)(3), the officer may issue a citation.
Assistant Attorney General Justin Hughes prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General