Criminalizing Mere Suspicion: the Unconstitutionality of “Manifestation of Purpose” Laws

Aidan McNeese

Edited by Jordan Perlman, Anikieth Datla, Mac Kang, and Sahith Mocharla

Picture this: you are relaxing on a bench, making friendly conversation with a passerby, when a police officer asks to speak with you. They ask what you are doing, and when you answer, “I’m just relaxing,” the officer raises an eyebrow and asks to search you. Knowing you have nothing illegal on your person, you comply. As expected, the officer finds nothing. Yet just as you think you are free to return to your bench, to your pleasant conversation, they hand you a court summons and explain the crime you, apparently, committed: “Manifesting the Purpose of Selling an Illegal Drug or Chemical.”

This scenario is just one of many made possible by a series of municipal laws found all across Texas. These crimes—generally known as “manifestation of purpose” crimes—purport to prevent other crimes, like prostitution or selling drugs, by criminalizing behaviors perceived as demonstrating the intent to commit such crimes. Examining these laws reveals a clear violation of the long-established vagueness doctrine and demonstrates a vulnerability to discriminatory enforcement. Other states who have passed similar laws have ultimately repealed them, as they present a unique constitutional challenge [1] [2]. Texas, however, remains an outlier to this trend. Before defining the vagueness doctrine and how it might apply to these laws, it is important to examine the language of the laws themselves. In the city of Austin, for example, one of the manifestation of purpose provisions targeting the sale of drugs states: 

A person commits an offense if the person loiters in a public place in a manner and under circumstances manifesting the purpose of selling a controlled substance, dangerous drug, simulated controlled substance, or volatile chemical in violation of the state law [3].

The second law, targeting prostitution, follows nearly identical structure and language:

A person commits an offense if the person loiters in a public place in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting, or procuring another person to commit an act of prostitution [4].

Immediately, the subjective condition of “a manner and under the circumstances manifesting the purpose of…” draws concerns about vagueness. Neither law explicitly defines what this means, although they do outline potential reasons for arrest. For example, if the suspect is at a frequented location for drug abusers and sellers, repeatedly engaging in conversation or exchanging money or objects with persons passing by, or using bodily gestures to attempt to stop motor vehicles, they might be questioned by a police officer. However, these behaviors are presented as mere considerations for the arresting officer rather than as an exhaustive set of suspicious conduct that could lead to an arrest. The manner and circumstances that manifest intent are still ultimately at the officer’s discretion, making it unclear what behavior could subject them to arrest. 

This lack of clarity violates the vagueness doctrine, which requires that a law should be clear enough on its face that citizens do not have to speculate its meaning [5]. This principle is embodied in the Papachristou v. City of Jacksonville (1972), where the Court found a city ordinance law “void for vagueness” on the basis that it “‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute’” [6]. Under the Papchristou standard of vagueness, both Austin ordinances clearly fail, largely due to the lack of any specified criminal behavior. Even a person with no intention of engaging in prostitution or selling drugs would have to speculate about which behaviors are actually being prohibited.

The Court in Papachristou also found the ordinance void for “encourag[ing] arbitrary and erratic arrests and convictions” [7]. The behaviors that Austin officers may rely on for arrest include actions explainable by entirely lawful and common purposes. For example, the ordinance law involving prostitution allows an officer to consider if a person “repeatedly stops or attempts to stop motor vehicle operators by hailing, waving of arms, or any other bodily gesture” [8]. But countless ordinary explanations exist for this sort of behavior: waving down a taxi, hitchhiking, advertising, or asking for directions, among many others. Even a sign spinner for a car wash could theoretically be arrested on such grounds—an absurd scenario made possible by these vague and overextensive conditions. Similar problems arise for the other listed behaviors like attempting to talk to persons passing by or repeatedly exchanging items with other persons. The laws do at least require police officers to give the offending person a chance to explain their behavior before making an arrest, and if this explanation is “true and discloses a lawful purpose,” then the person shall not be convicted [9]. However, until the truthfulness and lawfulness of that purpose is determined in court, the arresting officer retains their discretion to proceed with the arrest. Consequently, these laws open the door to arbitrary arrests for entirely lawful and reasonable activities, which would be decidedly vague.

Austin’s ordinances are also particularly vulnerable to discriminatory enforcement. While this flaw largely arises from the vague descriptions of the offenses themselves, some of the considerations outlined as potential reasons for arrest also raise concern. For example, Austin’s manifestation drug ordinance allows officers to consider if the offender “is at a location frequented by people who use, possess, or sell drugs.” Austin’s ordinance fails to define what such a “frequented location” is, leaving this ambiguous term also up to interpretation. With ‘frequented location’ being, perhaps intentionally, left unspecified, it is easily weaponized into a means of targeting lower-income and minority communities, which themselves are more likely to be labeled as areas of high drug activity and might subject them to higher enforcement. The Dallas City Council—who modified their own drug manifestation ordinance to avert a constitutional challenge—defined this term, restricting its ability to be abused as a discriminatory tool. [10] While a full repeal might be necessary given the questionable nature of these laws, Austin could similarly address its vague and discriminatory ordinances by defining this term. At the very least this revision would mitigate the opportunity for officers to prey on any communities they deem to be in a “frequented location.”

Manifestation of purpose laws are by no means unique to Austin. Alongside the alluded to iterations in Dallas, versions of these laws are found in municipal codes across the United States. Unlike in Austin, however, many of these laws have been challenged and repealed. In 2020, Seattle city council repealed a similar prostitution loitering law over concerns of discriminate enforcement [11]. In 2022, California repealed its own prostitution loitering law to prevent racial and sexual profiling [12]. Most recently, the prostitution manifestation ordinance in Dallas—which shared nearly identical language with Austin’s code—was deemed unconstitutional by an appeals judge in 2023 before being revised like the aforementioned drug ordinance [13]. Ultimately, if the intention of these laws is to prevent prostitution and drug sales without encroaching on individual liberties, then they ought to be revised like in Dallas, if not repealed entirely like in California and Seattle. As they are currently written, their vagueness and susceptibility to discriminatory enforcement leave ordinary citizens vulnerable to arrest—a shocking threat to our liberties for mere Class C misdemeanors.

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[1] Joseph Peha, City Council Repeals Problematic Law to Reduce Disproportionate Impact on Communities of Color, Seattle City Council Blog (June 23, 2020), https://council.seattle.gov/2020/06/22/city-council-repeals-problematic-law-to-reduce-disproportionate-impact-on-communities-of-color/.

[2] Erin Kilbride, Anti-Loitering Laws Will Not Help California Fight Human Trafficking | Human Rights Watch, (May 9, 2024), https://www.hrw.org/news/2024/05/09/anti-loitering-laws-will-not-help-california-fight-human-trafficking.

[3] Kirk Watson, Municode Library, The Code of the City of Austin, Texas, https://library.municode.com/tx/austin/codes/code_of_ordinances?nodeId=TIT9PRAC_CH9-5REDRCHCOSU_ART5MAPUSEILDRCH (last visited Mar. 29, 2026).

[4] Kirk Watson, Municode Library, The Code of the City of Austin, Texas, https://library.municode.com/tx/austin/codes/code_of_ordinances?nodeId=TIT9PRAC_CH9-5REDRCHCOSU_ART5MAPUSEILDRCH (last visited Mar. 29, 2026).

[5] Vagueness Doctrine, LII / Legal Information Institute, https://www.law.cornell.edu/wex/vagueness_doctrine (last visited Mar. 29, 2026). 

[6] Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)

[7] see [6]

[8] see [3]

[9] see [3]

[10] see [1]

[11] see [10]

[12] Isabella Volmert | Dallas Morning News • •, Appeals Court Judge Rules Controversial Dallas Prostitution Ordinance Unconstitutional, NBC 5 Dallas-Fort Worth (July 29, 2023), https://www.nbcdfw.com/news/local/appeals-court-judge-rules-controversial-dallas-prostitution-ordinance-unconstitutional/3306034/.

[13] see [12]