The Problem of No Property
Chris Lollie was in a public area of the St. Paul Skyway seating area when a security guard for the First National banktold police he was in a private area.
The guard's report drew national attention. Was the downtown area where Lollie was sitting public or private. He complied and left when he was asked to leave but the police pursued him anyway. He was tasered, his arms were put behind his back. They took his cell phone and several charges were leveled.
Lollie said he stayed because no signs stated it was a private area. The only sign was a sign at the building's lower level entrance that said, "no loitering." He was waiting for a bus to to drop off his children.
He wasn't resisting. He was trying to move his encounter with police away from the eyes of children in the area who were his daughter's day care classmates.
Though racial discrimination was not presented in the above case, it became an important element because it “reflected the Court’s concern over “the risk of racial bias in the enforcement of public order laws” (Rosenthal 2000). While the original purpose of the law was to manage the growing number of gangs in Los Angeles County, the ordinance could apply to anyone caught loitering, particularly members of the “underclass”, including the homeless, the poor, and/or the mentally ill. -- content -->
Eugene Oregon passed what was called an Exclusion Ordinance. This was a civil legal process and as such it avoided the criminal justice system, which has a stricter standard of proof.\With the passage of this bill the city of Eugene could strip away constitutional rights such as the right to assemble. Furthermore, without due process procedures, the accused might not know what he or she is being accused of and so might not have recourse to a remedy.
Where is the line drawn? In terms of criminality, one question that needs to be answered is what causes people to congregate in one place. Drug dealers often dealing in the open and depend on crowds. In Durango ,Colorado Musicians, political protesters were accused of loitering. San Francisco’s BART system had stations that were filthy with piles of feces, litter, discarded food and dust. BART hired cleaning crew and imposed stricter ordinances. including no eating. In the short run at least public order was established but the price was a public sanction a person holding a cup of coffee.This souless approach to public order ultimately diminishes the merchant as it takes away the rich diversity that attracts customers to a true “marketplace.”
Public order is important because it encompasses a number of dimensions including public health and safety. But where is the line drawn?
Perhaps the most useful attitude is to begin to understand the importance of social support over criminalization. After all, no-one is going nowhere, everyone is going somewhere. Humane, well thought out municipal codes can help move people in the right direction.
In 2012, Assemblyman Tom Ammiano (San Francisco) introduced AB 5, the Homeless Person’s Bill of Rights. Proponents of the Bill claimed that decriminalizing the homeless allows more socially equitable solutions, eg. San Francisco converted an old bus into a mobile bathroom.
Opponents said the bill imposes on local authority. Therein lies the problem, the inability to weigh social order against individual rights. Patten
The problem is not a lack of arrests. Police say they made 7,316 arrests in Baltimore's drug-free zones last year.
Despite those arrests, Mr. Schmoke said, the city's open-air drug markets are prospering. "Drug sellers have become bold. Sometimes they just stand there and stare down police."
Drug dealers sometimes even set up "sacrificial lambs" to be run in by police on drug-free zone violations, he said. Those offenders tie up hours of police time, while the drug market continues its business.
From the beginning, the law faced serious scrutiny in Baltimore because some City Council members and several civil rights groups felt that it would lead to widespread abuse by police. In addition, there were the constitutional questions arising with many anti-loitering laws, which infringe on people's right to assemble.
Barriers to better laws include municipal court rulings that are vague, hard to access (for instance excessive charges to retrieve documents), or do not reflect the “crime” committed. Urban decay contributes as well as fast development encourages criminal activities, but criminalization as an answer has little impact in the absence of enough social
Meanwhile, he said, judges complain that prosecutors have not been pursuing many cases involving drug-free zones because the prosecutors doubt the constitutionality of the law. And some prosecutors say that police are not giving loiterers the notice required by the law before making arrests, Mr. Schmoke said. That causes many cases to be dismissed.
The bottom line: The law, hailed by Mr. Schmoke as a valuable crime-fighting tool when it was passed in 1989, has not made a dent in the city's open-air drug markets.
"Residents are simply saying to me that, in their view, drug-free zone simply means that's where all the drugs are," the mayor said.
This means services for basic needs. Kalila Dalton, with Kansas Mutual Aid, says there must be a test of reasonableness in weighing the need for public order versus individual needs and rights. She views panhandling as a logical response to a basic need: “If it is cold outside and if you have no warm place, it seems reasonable to build a fire. If you have no money, it seems reasonable to ask someone who appears well off for money.” There is also some evidence that funding cuts resulting in closures of services related to basic needs leads to increased panhandling.
says that municipal codes are frequently challenged due to “alleged vagueness, overbreadth, lack of due process, equal protection, or preemption violations.
One reason for the vagueness and overbreadth of codes is that the problem of public order versus individual rights are unmet challenges even in the most progressive cities.
Since the beginning of our country U.S. law has favored property rights over human rights in a way that contradicts the Bill of Rights. Little has changed. In fact, given the limiting factor of geography
A Supreme Court case, City of Chicago vs. Morales (527 U.S. 41 (1999) involved a city ordinance that defined loitering as “to remain in any one place with no apparent purpose.” If subjects did not obey an order to disperse by the police, they faced a fine between $100 and $500 or imprisonment up to six months, or both. A subject might also be required to perform up to 120 hours of community service in addition to or instead of a fine and imprisonment.
The Court ruled that the ordinance was unconstitutionally vague. Patten (2006) notes a regulation must be sufficiently clear to warn a party regarding what is expected of them before they can be sanctioned for failure to comply with the required regulation.
This ruling has not set much of a precedent in local settings nor has the constitutionality of exercising basic human functions been addressed including sitting, squatting, eating, lying down, and loitering.
According to many municipal codes in cities and towns across the country, these functions have little or no relationship to constitutional rights and these codes have become more stringent since 2009 according to a National Law Center on Homelessness & Poverty (NLCHP) report titled, No Safe Place.
Maintaining public order or a social order has been a concern in relation to the marketplace. It has lead to establishing drug-free zones. The net frequently ends up being too broad. It is hard to distinguish between activities such as loitering and skateboarding, or conversing in an open air market, for instance. There is also the question of perception such as a vendor with a bias against those who don’t have money to spend.
The tolerance for behavior is geographically specific. For instance, someone passing an envelope on a Hyde Park street won't get busted, but he or she might in Over-the-Rhine, says Scott Greenwood, attorney for the American Civil Liberties Union. (Denise Smith Amos 2003)
Furthermore, some studies have shown that and drug dealers actually increased sales in the drug free zones(Fletcher 1994). [ Susan Crowell, 1/16/15, 10:00 AM
Enforcement is being hampered by "finger-pointing," Fletcher added.
In 1994, a Baltimore anti-loitering ordinance gave police increased power to arrest loiterers. The police claimed that creating a drug free zone hampered their ability to do law enforcement because of “finger pointing.” The police also run a greater risk of allegations of racial profiling.
When a case gets to court, it isn’t uncommon for a district attorney to avoid pursuing a case or for a judge to throw a case out because of constitutionality issues.
in that judges routinely throw out cases when arrests are made in drug-free zones, spots recognized as open-air drug markets by police.
"Police have said that they had the experience of judges actually dismissing cases right at the beginning of their docket simply by asking if any people in the courtroom were arrested in a drug-free zone," Mr. Schmoke said. "When they stood up, their cases were dismissed."
READINGS/UPDATES
(UPDATE July 19, 2017) In 2017, the criminalization of the homeless and the poor is increasing.