Monday, October 24, 2011

councilmembers propose anti-loitering bill as curfew alternative (updated)

UPDATE: Our friend David Moon at Maryland Juice has a nice write-up on the anti-loitering bill and his latest initiative to bring Bob's Big Boy back to MoCo.

Kids On Ellsworth Drive
It's better than a teen curfew, but how would an anti-loitering law respond to scenes like this? 

In response to mounting opposition to a proposed teen curfew, MoCo Councilmembers Phil Andrews and George Leventhal will introduce an anti-loitering bill tomorrow modeled on ones used in Florida and Georgia. They call it a "better tool" for fighting crime because it targets actual troublemakers, not just youth.

"A loitering and prowling law wouldn't discriminate based on age, wouldn't be limited to late-night hours . . . and would target criminally suspicious behavior by anyone," writes Andrews, who represents Rockville and Gaithersburg, in a memo to Council staff.

Bill 35-11, as it's officially called, would prohibit certain kinds of "loitering or prowling," defined as being "in a public place or establishment at a time or in a manner not usual for law-abiding persons." (
The bill will be posted online tomorrow, and I'll post the link
Here it is.) It also specifies that police only take action when they "reasonably [believe]" an individual's behavior "justifies alarm or immediate concern for the safety of persons or property in the vicinity."

Police must ask people suspected of loitering to explain themselves, and they also have to give a warning. Those who don't obey an officer's warning would be charged with a misdemeanor. The bill strengthens the county's existing anti-loitering laws, which were last amended in 2006 to remove the words "loiter" and "loitering."

Curfew supporters are skeptical of the anti-loitering bill. Councilmember Craig Rice, who represents the Upcounty, tells the Examiner that not having a curfew told kids it was "OK for you to be out there at 2 in the morning" and causing trouble, while County Executive Leggett worries that the loitering bill was "overly broad" and could encourage racial profiling.

Ironically, Leggett's concerns are the same raised by curfew opponents. Both curfews and anti-loitering laws have been criticized for being hard to enforce and subject to abuse. Chicago's anti-loitering law was struck down by the Supreme Court in 1999 for violating the First Amendment right to peaceful assembly, while Newark and several suburban towns in New Jersey revoked their anti-loitering laws for using vague terms like "no loafing." And in the District, repeated attempts to ban gatherings of more than two people have failed.

Nonetheless, Leventhal is confident that Montgomery County's bill, as drafted, would be less intrusive. "I think it raises far fewer civil liberties concerns than a curfew and I prefer this approach," he writes in an e-mail to JUTP. "I think it responds to the concerns that have been raised by the Police Department," who say current laws don't give them "necessary power to prevent harm to persons or property."

Crime, including youth- and gang-related incidents, has been dropping in Montgomery County since 2007, as Andrews points out. And just as Lt. Robert Carter of the Montgomery County Police predicted in August, crime fell in downtown Silver Spring when more cops were placed on the street

Given these circumstances, it's reasonable to say our police are doing fine. But Leggett and Police Chief Thomas Manger have put considerable effort highlighting youth crimes to build the case for a curfew, making the public fearful. As a result, the burden's on opponents to produce a more palatable alternative that still shows we're Doing Something About Crime. It's an imperfect solution, but far less imperfect than a curfew. What Councilmembers Andrews and Leventhal have done, however, is say what we've needed to hear all along: crime isn't limited to late nights and it certainly isn't limited to young people.

If this is what it takes to get Montgomery County off the backs of its teenagers, I'm curious to hear more.

The Montgomery County Council will hold a public hearing on the proposed anti-loitering bill on Tuesday, November 15 at 7:30pm in the Council Office Building, 100 Maryland Avenue in Rockville. To testify or for more information, visit the Council website.

Full disclosure: I used to work as a legislative aide for Councilmember Leventhal.


Woody Brosnan said...

Woody Brosnan wrote,

Why do you think this is better than a teen curfew? Under this bill, a policeman could still ask teenagers to vacate any area, but now he could subjectively ask adults too, based on a vague standard of what would be perceived to be abnormal activity. For instance it could be applied to an "Occupy Silver Spring" movement, while a teenager participating in such an activity would be protected by the free speech clause. You substitute the bright line of a curfew with a policeman's subjective judgment, opening up the county to all sorts of civil rights lawsuits. Legally, teen curfews have withstood constitutional scrutiny in most circuits much more often than anti-loitering laws.

Dan Reed said...

I don't support it yet, Woody, but I'm more comfortable with something that a) recognizes that most crime happens between 5am and 11pm, not the other way around and b) recognizes that most crimes are committed by people over 18. Personally, I don't think anything is needed at all. But it would be nice after three months of debating how awful MoCo's youth are to actually have a realistic discussion of when and how crime happens.

And, of course, cops say the curfew would be applied subjectively. There's no bright line there, as far as I'm concerned.

Dan Reed said...

Also, Woody - you don't have to write "Woody Brosnan wrote" at the start of your comments. Your name is automatically posted when you publish a comment.

jag2923 said...

I don't understand...if there is a group of teens or 20-somethings that are jawing at each other or harassing bystanders(such as in the cases commonly cited as proof of needing a curfew) can't cops already inject themselves in those situations without additional curfew or loitering laws? There isn't already a vague law or seven on the books about disturbing the peace, failure to disburse, unlawful congregation, etc., if outright harassment or assault haven't yet occurred?

Woody Brosnan said...

I fear that a loitering law would be used to target immigrants. That's what happened two years ago in Prince William County. Three Hispanic men were arrested on loitering charges even though they were standing outside their own apartment complex. Had the men been taken to jail the police could have checked their immigration status with ICE.

Thomas said...

I think either the curfew or the anti-loitering ordinance could easily lead to racial profiling (even if done unconsciously by a largely well-intentioned police force). If either one is passed, I'd hope it would include language like that in Sections IV, VII, and VIII of the "Local Civil Rights Restoration Act" developed by the Bill of Rights Defense Committee, as a way of measuring, deterring, and correcting racial profiling.

Robert said...

I'm not sure we need a new law at all, but if we do, this is a lot better than the curfew. It wouldn't criminalize simply being out at a given hour for one group of people.

Instead apparently it would criminalize bad behavior at any hour by anyone. That is a lot more reasonable, and probably a lot more effective at accomplishing the objective. Cops wouldn't have to figure out how old someone is, for example.

If proposed law is well written to avoid harassment, I'd support it.

Julian said...

This post was just cited as a source on WUSA 9News Now (5:34 am).

Woody Brosnan said...

I'm passing this on from the executive's office. If you oppose the curfew, fine. But don't support a bad law just as an alternative.

"Facts About Proposed “Loitering & Prowling” bill

• This bill does nothing to protect underage young people later at night from becoming victims of crime or involved in crime or anti-social activities. Young people could not be told to go home if they were out after curfew hours under this legislation, thus undercutting a primary reason for the curfew bill – to protect young people.

• This bill does nothing to address the fact that existing youth curfews in neighboring Prince George’s County and the District of Columbia are driving underage youth to come to Montgomery where, at present, a curfew does not exist.

• The County Council unanimously (including the current bill’s sponsor repealed Montgomery County’s previous loitering law on July 11, 2006 because of questions about constitutionality in light of recent court decisions. The previous loitering law was dropped in substance AND name in favor of disorderly conduct, which is what we have today. The Council, instead of doing what Andrews is doing now (then and now of dubious constitutionality), decided unanimously to morph the law into disorderly conduct. At that time, Phil Andrews said that “loitering in and of itself should not be a crime.”

• For those concerned about profiling, this bill is practically an invitation to profiling. It would allow the police to charge any person at any time of the day or night with a violation if the officer has an “alarm or immediate concern.” Unlike the curfew bill, it does not apply just to underage young people. It is not restricted to late-night hours. Unlike the curfew bill, it contains no stated exceptions for late-night jobs, travel to and from sporting or entertainment events, travel with a parent or a number of others explicitly stated in the curfew bill. That would be left to the discretion of the officer and could lead to uneven enforcement – or the perception of uneven enforcement.

• The bill is vague in a way that likely makes it unconstitutional. Loitering and prowling are defined as remaining “in a public place or establishment at a time or in a manner not usual for law-abiding persons.” By contrast, the curfew bill is clear: persons under 18 years of age are not allowed to remain in public places during curfew hours unless they fall within crafted exceptions. Vagueness is chief among the constitutional concerns that have caused anti-loitering laws have been struck down or severely limited by federal court decisions.

• The sponsor cites that similar laws exist in Florida and Georgia. These are based on “model” anti-loitering legislation that, in two decades, has only been adopted in these areas. Youth curfews, by contrast, exist in 80 percent of cities with over 180,000 residents and exist, of course, in Washington DC, Price George’s County, and Baltimore.

• These laws have not passed muster by the United States Supreme Court. Curfew laws have been upheld by the courts."

Dan Reed said...

"Unlike the curfew bill, it does not apply just to underage young people."

So let's say the curfew bill and anti-loitering law do represent violations of our civil liberties and an invitation to use profiling. By Ike's logic, it's okay to do that to kids, but not everyone else?

I really do wonder why the County Executive has been so aggressive with this curfew when after three months it still lacks support from a majority of the Council and has a lukewarm reception from the public at best. Two of the county's Citizens Advisory Boards (out of five) chose not to take a vote on the curfew, and one that did (Upcounty) voted in favor by a slim majority. You'd think he'd see the writing on the wall by now.

Thomas Hardman said...

I'd personally prefer the anti-prowling version to the proposed teen curfew. While it's just pretty unusual for me to agree with Mr Leventhal on anything, he's got my wholehearted support on this issue.

The Department of Police raise a good point on their lack of authority to improve public safety in certain situations. Remember, it wasn't until 2010 that they had the authority to make a warrantless arrest for second-degree assault. Now they have the authority to investigate or arrest for second-degree assault if they see it or even hear about it in such a manner as to provide them with reasonable suspicion that an investigation and/or arrest are necessary.

This would give additional powers to protect people and property when the officer reasonably believes that there is "...immediate concern for the safety of persons or property in the vicinity."

I feel that this is necessary to be enacted at a State level, although the County is taking a strong step in the right direction.

If this law passes, officers watching someone with a baseball bat sneak up behind someone else will have the legal authority to question that person, quite possibly saving them a busted head. In the rest of Maryland, however, officers would have to witness the actual second-degree assault actually occur before they were empowered to make an arrest. Prior to 2010, they would not be empowered to make an arrest until the victim appeared before the Commissioner of Police and swore out a complaint... by which time the weapon and assailant would likely be long gone. (If the victim died, the police already have the power to launch their own investigation and make arrests without the complaint of the deceased.)