Sign, Sign, Everywhere a Sign:
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Learning More
There are probably dozens if not hundreds of cases that at least touch on the issues presented by a constitutional attack on Carbondale’s encroachment ordinance. Space prevents an exhaustive review of all or even a majority of such cases. To provide Nightlife readers with some excerpts from U.S. Supreme Court decisions in this area, however, here are summaries and quotes from four major Supreme Court opinions from the 1960s to the 1990s. Keep in mind that, in each of these cases, there was a city (or state) on one side whose position was that the application of the law in question was constitutional, and the Supreme Court decided otherwise (although, in many cases, some justices dissented).
Nightlife encourages readers to look up and read these cases and the others cited in those opinions. Many libraries, and all law libraries, have Supreme Court decisions. A citation "461 U.S. 352 (1982)" means volume 461, page 352 of the U.S. Supreme Court Reports. "352" would be the starting page of that case. "1982" is the year the case was decided.
In addition, readers can learn more at a Southern Illinois American Civil Liberties Union forum on this issue Monday, April 15 at 7:30 p.m. in the SIU Museum Auditorium on the north end of Faner Hall. "The purpose of the forum is to gauge community experience with use of the ordinance and explore ways that enforcement guidelines or the statute itself might be modified to preserve civil order while having the least impact on appropriate use and enjoyment of sidewalks by the public," reads an SI-ACLU press release. Carbondale Police Chief R.T. Finney, City Attorney Paige Reed, Undergraduate Student Government President Michael Perry, and SIU Crime Studies Center professor emeritus Cyril Robinson will participate. "The forum is designed to advance ongoing conversations between residents and city officials about the enforcement of the code and allow for maximum community input in the process," states the press release.
"The forum is design to solicit community opinion before [the next city council meeting]," writes SI-ACLU president Mark Schneider in an email to Nightlife. "While much has been written about the topic, few people other than Rob Taylor have complained about enforcement of the ordinance in public." Schneider hopes the meeting will not only prove educational, but will offer opportunities for the public to discuss any objections with the ordinance or the way it’s been enforced, and "to discuss alternative ordinances or guidelines that could accomplish the reasonable objective of preventing the Strip from being taken without making the Strip a wasteland between 1:30 a.m. and 2:30 a.m."
Finally, interested parties may wish to attend Taylor’s trial, scheduled for Monday, May 13 at 1 p.m. at the Carbondale Civic Center. Those who attend, however, must respect the court, its proceedings, and its decision, whatever it may be, or face arrest and charges that will only hurt Taylor and his cause. That means keeping absolutely silent while court is in session.
The Precedents
In 1962, the city of Birmingham, Alabama, enforced an ordinance that made it an offense to "so stand, loiter, or walk on any street or sidewalk... so as to obstruct free passage over, on or along said street or sidewalk." The ordinance also made it "unlawful for any person to stand or loiter upon any street or sidewalk... after having been requested by any police officer to move on."
Mr. Shuttlesworth was standing on the sidewalk in Birmingham in front of a store. A policeman told him he was obstructing the sidewalk. Shuttlesworth asked, "You mean to say we can’t stand here on the sidewalk?" He was ordered to move again. He said, "You mean to tell me we can’t stand here in front of this store?" Then he walked into the store. He was arrested in the store. He was convicted and sentenced to 180 days of hard labor.
After three years of appeals, the U.S. Supreme Court in 1965 reversed Shuttlesworth’s conviction in Shuttlesworth v. Birmingham. The court’s opinion, written by Potter Stewart, reads in part:
"Literally read... the second part of this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no demonstration.... It does not provide for a government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat.... Instinct with its ever present potential for arbitrarily suppressing First Amendment liberties, that kind of law bears the hallmark of a police state."
The case is Shuttlesworth v. Birmingham, 382 U.S. 87 (1965), and the above quote was found at pages 90 and 91. Based on constitutional violations, Shuttlesworth’s conviction was set aside.
In a similar U.S. Supreme Court case, Papachristou v. City of Jacksonville, 405 U.S. 156 (1972), a Florida city’s vagrancy law was declared unconstitutional. The ordinance prohibited, among other things, "Common night walkers... persons wandering or strolling from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business...."
In the opinion of the court, Justice William O. Douglas quoted an article from the Yale Law Journal where the author stated, "If I chose to take an evening walk to see if Andromeda has come up on schedule, I think I am entitled to look for the distant light of Almach and Mirach without finding myself staring into a blinding beam of a police flashlight."
The opinion went on to quote longstanding legal doctrines:
"This ordinance is void for vagueness, both in the sense that it ‘fails to give a person of ordinary intelligence that his contemplated conduct is prohibited by the statute,’ [as per] United States v. Harris, 347 U.S. 612, 617, and because it encourages arbitrary and erratic arrests and convictions [as per] Thornhill v. Alabama, 310 U.S. 88 [and] Herndon v. Lowry, 301 U.S. 242.
"Living under a rule of law entails various suppositions, one of which is that ‘[all persons] are entitled to be informed as to what the State commands or forbids’ [as per] Lanzetta v. New Jersey, 306 U.S. 451, 453. Lanzetta is one of a well-recognized group of cases insisting that the law give fair notice of the offending conduct. See Connally v. General Construction Company, 269 U.S. 385, 391; Cline v. Frink Dairy Company, 274 U.S. 445; United States v. Cohen Grocery Company, 255 U.S. 81."
In 1983 the U.S. Supreme Court struck down yet another law that restricted freedom of movement. In Kolender, Chief of Police of San Diego v. Lawson, 461 U.S. 352 (1983), Justice Sandra Day O’Connor wrote the opinion in a seven-to-two decision. California had passed a law designating a person to be a criminal if he or she "loiters or wanders on streets from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer to do so, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification." If so, a person was required to provide "credible and reliable" identification, according to the California courts. This included "assurances that the identification is authentic and providing a means for later getting in touch with the person." Failure to provide "credible and reliable" identification was grounds for arrest.
Justice O’Connor stated, "[This law] contains no standard for determining what a suspect has to do in order to satisfy the requirement to provide a ‘credible and reliable’ identification. As such, the statute vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute and must be permitted to go on his way in the absence of probable cause to arrest. An individual, whom police may think is suspicious, but do not have probable cause to believe he has committed a crime, is entitled to continue to walk the public streets ‘only at the whim of any police officer’ who happens to stop that individual under [the California law, citing] Shuttlesworth v. Birmingham, 461 U.S. 352 at 358."
On page 361 of the Kolender opinion, Justice O’Connor continued, "Appellants (the State of California) stress the need for strengthened law enforcement tools to combat the epidemic of crime that plagues our Nation. The concern of citizens with curbing criminal activity is certainly a matter requiring the attention of all branches of government. As weighty as this concern is, however, it cannot justify legislation that would fail to meet constitutional standards for definiteness and clarity. See Lanzetta v. New Jersey, 306 U.S. 451 (1939)....
"We conclude this [California law] is unconstitutionally vague on its face because it encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute."
In a more recent case, the U.S. Supreme Court struck down yet another anti-loitering law as too vague and giving too much discretion to police. In 1992, the city of Chicago enacted the so-called Gang Congregation Ordinance, which made it a crime for a person to "remain in one place with no apparent purpose" and whom a policeman "reasonably believes to be a criminal street gang member" who fails to obey a police order to disperse. Penalties included jail time, fines, and community service. In three years, police issued more than eighty-nine-thousand orders for people to disperse. More than forty-two-thousand persons were arrested.
Trial courts found the ordinance unconstitutionally vague and refused to enforce it. The Illinois Appellate Court agreed. The city appealed to the Illinois Supreme Court, which agreed that the ordinance was defective. The city stubbornly appealed again to the U.S. Supreme Court, which took the case.
In delivering the opinion of the court, Justice John Paul Stevens stated, "The broad sweep of the ordinance also violates the ‘requirement that the legislature establish minimal guidelines to govern law enforcement’ [citing Kolender v. Lawson]. There are no such guidelines in [the city of Chicago’s] ordinance. In any public place in the city of Chicago, persons who stand or sit in the company of gang members may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to catch a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may-- indeed, she ‘shall’-- order them to disperse....
"As we discussed in the context of fair notice, the principal source of the vast discretion conferred on the police in this case is the definition of loitering as ‘to remain in any one place with no apparent purpose.’ As interpreted by the Illinois Supreme Court, it ‘provides absolute discretion to police officers to decide what activities constitute loitering.’"
The case is City of Chicago v. Morales, 527 U.S. 41 at 60-1 (1999).
According to Jennifer Hoyle, the City of Chicago Department of Law’s Public Information Officer, the city of Chicago had to revise its gang-loitering ordinance to clarify terms like "loitering" and "disperse" in order for it to pass constitutional muster. Chicago police officers also received special training in the enforcement of the new gang-loitering law.
Both Sides Now:
Carbondale’s Encroachment Ordinance
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"The opinion that the Carbondale ordinance is unconstitutional has continually failed to be supported by any state or federal case law," writes Reed in an email to Nightlife. "In fact, the cases [summarized and quoted above] seem to clearly hold that as long as there is proof of ‘obstruction or blocking of pedestrian flow of traffic on the sidewalk,’ then the city's ordinance is clearly constitutional as written and enforced.
"As you know, the city's policy of enforcing this ordinance includes evidence of ‘obstructing or blocking.’ Therefore, any allegation that the city of Carbondale's ordinance is unconstitutional is unsubstantiated."
Reed says a state court in Jackson County ruled the ordinance constitutional in City of Carbondale v. Anthony Post, 2000-OV-1589.
It is not clear from a review of the case file, however, that constitutional issues ever arose in Carbondale v. Post; Associate Judge Kimberly L. Dahlen, who ruled on the case, does not even acknowledge a constitutionality argument in her court order, filed on January 26, 2001.
Court documents show that Post was arrested November 4, 2000 at about 2:18 a.m., the weekend after Halloween 2000 and the first weekend in which the Carbondale Police Department began zero-tolerance enforcement of the encroachment ordinance. Carbondale Police Chief R.T. Finney signed Post’s ticket.
In a phone interview with Nightlife, Post, who no longer lives in Southern Illinois, said at the time he had just received his bachelor degree in zoology. Post was not a lawyer, nor did he retain a lawyer to represent him. Instead, Post and some friends did their own legal research and he defended himself in court.
Post said he filed no legal briefs challenging the ordinance’s constitutionality; none are in the court file.
Post said he tried to argue the facts of the case-- that there was no traffic to block, he said, and therefore he couldn’t have been guilty of encroachment. Part of Post’s defense hinged on the definition of encroachment-- Post said his legal research revealed that encroachment did not apply to people, but to the placement of personal property on sidewalks. Under the definition of encroachment, he argued, people could not encroach. Moreover, Carbondale’s ordinance, he said, appeared to be enacted to regulate sidewalk sales and pushcart vendors. Post tried to argue that the city council didn’t intend for the ordinance to be used to regulate foot traffic.
Post’s arguments did not prevail. He was found guilty and fined $75 plus court costs, for a total of $139.
The case file contains copies of two U.S. Supreme Court decisions, Chicago v. Morales and Coates et al. v. Cincinnati 402 U.S. 611 (1971), and an Illinois appellate-court decision, Chicago v. Youkahana 213 Ill.Dec 777, 660 N.E. 2d34 (Ill.App.1 Dist.1995), but these cases are not addressed in any of the documents in the Carbondale v. Post case file. The motion for reconsideration filed on Post’s behalf by attorney Betsy Streeter, which was denied, mentioned Post’s "Constitutional right to peaceably assemble," but did so in passing; instead of mounting a constitutional challenge, the motion for reconsideration primarily reiterated the arguments Post made at trial. Post did not appeal.
In 2001, Post was again busted for encroachment, and he told Nightlife that this time he intended to challenge the ordinance’s constitutionality. While he hired an attorney to help him prepare paperwork (including a motion to dismiss, declaring the ordinance "unreasonably vague"), Post again intended to represent himself in the case, City of Carbondale v. Anthony Post, 2001-OV-419. Post, however, never argued the case. He told Nightlife that the notice of his status hearing was postmarked August 28, the Friday before Labor Day. Post’s status hearing was Tuesday, September 4, the day after Labor Day-- the day he said his notice to appear arrived in the mail. Post says the letter arrived while he was at work. He came home to discover he’d missed his court date. He was found guilty ex parte and fined $250 plus court costs, for a total of $336. Again, Post did not appeal.
The court files in the Circuit Clerk’s office at the Jackson County Courthouse may not be complete, however. For example, the first Post case file does not contain Judge Dahlen’s response to the motion for reconsideration filed by Betsy Streeter.
Meanwhile, Paige Reed wrote that there were other cases in which the city successfully defended constitutional challenges. Reed, however, could not produce the case names or their case numbers from memory.
The Southern Illinois ACLU’s Mark Schneider wrote in an email to Nightlife that "running the original Carbondale Times story [about the encroachment ordinance] by the Illinois ACLU did not cause [the ACLU] to leap into action. The attorney I talked with suggested that no ‘protected activity’ was involved and so the situation fell outside ACLU concerns. Yet some members of the local ACLU see the matter [differently]."
William A. Schroeder, a professor at the SIU School of Law and a former prosecutor who teaches criminal procedure and evidence, weighed in against the ordinance. "It seems to me that the Carbondale ordinance is even worse than the one in Shuttlesworth," declared Schroeder in an interview with Nightlife. "At least in Shuttelsworth a person could avoid arrest if he or she obeyed an officer's order to move on. In Carbondale one is subject to arrest without warning simply because one is perceived to be ‘unreasonably blocking’ the way. How can anyone know when someone else will perceive their actions as unreasonable?"
Most people know they can’t lay down in the streets or sidewalk and block traffic. The city ought to be able to bust the people who do, right? "Yes," said Schroeder. But isn’t that all the ordinance provides for? "No, and that’s the problem," said Schroeder. "As far as the obstructing and encroachment part, ‘encroachment’ is defined as advancing by gradual steps or stealth onto the rights of others or advancing beyond usual or proper limits. What are the usual and proper limits on sidewalk use?
"‘Obstruction’ means to block or hinder passage. Passage of what? Pedestrians? Vehicles? The ordinance refers to those things but only in the context of unreasonably blocking them." As written, he says, someone who fell down on the street, broke a leg, and couldn’t move would be encroaching.
"I do not see how those words are any clearer than the words the Supreme Court has declared unconstitutional in other cases," said Schroeder. "Like the language the court has struck down, Carbondale's ordinance does not provide fair notice of what is prohibited and what is permitted. And it encourages arbitrary enforcement as illustrated by the fact that [it] is only enforced at certain times in certain places."
But do they have to spell it out? Does Carbondale have to give warnings before citing people for blocking traffic? "Without a warning, that makes [the vagueness issue] that much worse," said Schroeder.
Does the city even need an encroachment ordinance? Why not just use the disorderly conduct ordinance?
"The problem they’re trying to address, I would concede, is legitimate, and they may need a special way to address it," he said. "I do think that the city could pass an ordinance that imposed reasonable limits on the number of people who could stand on the sidewalk and limits on the time they could stand there, but the ordinance could not use the word ‘reasonable.’ Instead it would have to say something like ‘no more than three people for no more than three minutes.’ And I think it could (and should) be limited to certain areas where there have been problems....
"The fact remains they could have written a better ordinance, and they didn’t do that."
It would help a lot, said Schroeder, if Carbondale did what the Chicago City Council did in its gang-loitering ordinance and added clear definitions to the encroachment ordinance-- in Carbondale’s case, definitions for terms like "block" and "encroach."
Potential Consequences
It appears there is, at least, a substantial question whether the Carbondale ordinance is constitutional. An ordinance of questionable validity may invite attack. Such an attack, even if unsuccessful, either as a defense or at trial, or in a civil case seeking a declaration of invalidity, may require significant city funds and resources in what could turn out to be a losing cause.
That’s what happened to the city of Chicago in Morales. Jennifer Hoyle said that taking the case to the United States Supreme Court "no doubt required an extensive use of resources... but I can’t put a dollar figure on it" because the case was entirely handled in-house by salaried city attorneys, including a staff constitutional-law scholar. Chicago did not require expert witnesses or outside legal council charging hourly rates in order to defend its gang-loitering ordinance. Smaller municipalities might have, and the costs could have proven enormous.
When asked about the cost of defending an ordinance at appeal, William Schroeder agrees with Hoyle. "That’s hard to calculate," he said. "In a sense, it costs nothing, because [a city is] doing it with salaried employees. In another, it requires hundreds of hours. Hiring outside counsel at $75 an hour [to take a case to a state appellate court], which is obscenely cheap? Five to ten grand, maybe fifteen grand." Taking it to the state supreme court would require another $5,000 to $15,000, said Schroeder. As for the United States Supreme Court, "That’s very unlikely. That’s not going to happen. The chances of that happening, I would have to say, are about a likely as us getting hit by a meteor before this conversation ends. But it would be very, very costly-- another ten to twenty grand."
Closing Arguments
As the United States Supreme Court has stated, there are a number of reasons why overly broad and vague laws are not permitted in our legal system. Why a city might choose not to follow these rulings is speculative. In the case of the Chicago ordinance in Morales, the city council made a number of findings: that gang activity was responsible for a rising murder rate and escalation of other crimes, that gang members commit crimes when police are not present, and that gang activity creates fear in law-abiding citizens. Probably, none of us would argue with the proposition that "something should be done" in response to fear-inducing, violent activity. Yet Chicago chose to enact a defective law. In Morales, Justice O’Connor suggested that the city had many legal options to combat gang activity (such as enforcement of existing criminal and other laws), but it chose an illegal option.
Will Rob Taylor or others challenge the Carbondale encroachment ordinance as constitutionally defective? Will Taylor or others succeed? How much money and resources will the city spend on the ordinance’s defense? Will the city continue to arrest and prosecute citizens for violation of this ordinance? Stay tuned.
Editor’s note: Gary L. Goldblatt, while an attorney, is not a constitutional law expert. This article is not a legal opinion or legal advice. It is definitely not a complete or exhaustive review of the issues in this legal area. It is intended as a journalistic overview of some historical and practical considerations relating to these legal issues. If you would like to learn more, please read the cases cited in this article as well as the references mentioned in the test of the cases cited in this article.
from Nightlife 06/13/02
Epilogue: Juris-prudence
Last week, the city of Carbondale dropped encroachment charges against Rob Taylor.
The ordinance under which Taylor was cited, City Code 17-1-4, declares that "No person or group of persons shall obstruct, encroach upon, or unreasonably block the flow of pedestrian or vehicular traffic upon any public highway, street, sidewalk, alley, or publicly-owned common area, or any part thereof, by any means whatsoever."
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Governmental entities drop charges for many reasons. The most obvious is a lack of sufficient evidence.
Less obvious motives exist, however. Taylor intended to challenge the ordinance’s constitutionality. By dropping the charges, the city can avoid the potential embarrassment of having its ordinance struck down. Dropping the charges leaves the law on the books.
Taylor was also subpoenaed by the city in a criminal case-- while at work he allegedly witnessed a knife fight. Dropping the charges could be designed to ensure Taylor’s cooperation in a more important case.
Whatever the rationale, Taylor is out of trouble for encroachment and the law remains on the books.Meanwhile, a new fabric-art/silkscreening company, Dumpster Diver Productions, released a T-shirt at MakandaFest lampooning the city’s encroachment ordinance. Dumpster Diver’s fine apparel has a graphic of the city’s encroachment-warning signs on the front, with text reading "Big brother is watching you" on the back-- and the word "arresting" is superimposed over "watching."
The company is offering a free T-shirt to anyone who brings in an encroachment ticket. For more information, email <woodboxgang@yahoo.com>.