Speaking to an ACLU of Montgomery County meeting Wednesday night, County Councilmember Phil Andrews said he believed the “steam has gone out” of efforts to saddle Montgomery County with a youth curfew, and that the proposal would not pass the Council. Andrews pointed to a Tuesday night decision by Montgomery County PTA delegates to vote down a resolution supporting the curfew, the decision by the Silver Spring Citizens Advisory Board not to take a position, second thoughts by some council members, and months of opposition by groups like stopthecurfew.net and the ACLU of Maryland.
Andrews, the most outspoken curfew opponent on the County Council, reiterated his belief that a youth curfew was both a “fundamentally inappropriate” age-based strategy and ineffective, poorly targeted crime fighting: of the roughly 40,000 crimes in Montgomery County, only about 3,100 were committed by youths under the age of 22. He characterized the initial curfew proposal as a hastily drafted, not well vetted measure that was driven in part by concerns — following an early July youth rumble in Downtown Silver Spring — about what would happen when the new Fillmore music club opened. Andrews said he believed it was a mistake to “legislate from an isolated event” like that one or the 7-11 mob-robbing of a Germantown 7-11.
Notwithstanding his own advice, Andrews is proposing a new measure in search of a problem: a broadly drawn anti-loitering and “prowling” statute that he proposes as an alternative to the faltering curfew proposal. Councilmember George Leventhal — now off the fence and against the curfew — is a co-sponsor, as is Councilmember Craig Rice, among the most enthusiastic curfew proponents.
Councilmember Andrews’ Bill 35-11 defines “loitering or prowling” as
remain[ing] in a public place or establishment at a time or in a manner not usual for law-abiding persons under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
Flight, hiding, or refusing to identify oneself are immediate confirmations of “loitering or prowling”; otherwise, the person involved must get “an opportunity to dispel any alarm or immediate concern which would otherwise be warranted,” by identifying him- or herself and explaining his or her conduct. But the police officer is judge and jury of that explanation; if the officer still “reasonably believes that the person’s conduct justifies alarm or immediate concern for the safety of persons property,” then a citation or arrest may follow.
Andrews asserted that to be cited, persons must be engaged in “criminally suspicious” activities, offering examples such as “lurking behind a bush” or “systematically looking in car windows in a parking garage.” Yet the act’s language only seems to require “unusual” behavior or even just unusually timed behavior. Challenged on what this act solves that charges of disturbing the peace do not, Andrews said that State’s Attorney John McCarthy advised him that for that charge to be brought, an actual altercation must have occurred.
But Andrews conceded his anti-loitering measure might well not have helped with either the Silver Spring rumble or the Germantown flash-robbing. Along with the drop in crime statistics in Montgomery County that he’s happy to tout, Andrews’ anti-loitering bill seems superfluous, and driven merely, as he put it, by “concern that there is a need for legislation like this.” Delegate Ana Sol Gutierrez (on hand to talk about the Maryland redistricting debacle) added that she was concerned that this law would provide yet another opportunity for “Secure Communities” to collect fingerprints and deport harmless, undocumented Hispanic immigrants.
Mike Mage (chair of the Montgomery County ACLU) raised the point that not just police could “the owner, operator, or other person in control of the public place or establishment — “the owner, operator, or other person in control of the public place or establishment” could also decide that someone was unlawfully remaining at public place or establishment. Melissa Goemann of the ACLU noted that the lack of mens rea provisions — was there intent — in the Act will affect its constitutionality, as would vagueness.
Thanks very much to Melissa Goemann and Mike Mage for inviting me to the meeting!
UPDATE, 10/28: An ACLU of Maryland “Advocacy Update” this afternoon says they are opposing the Andrews anti-loitering bill:
People have the right to walk and linger in public places. Loitering laws seek to limit that right in one of two ways: Either they invite discriminatory enforcement through vague, non-specific language about what conduct is unlawful, or they prove unenforceable as a practical matter because they demand the police to be clairvoyant – requiring them to foresee the intent behind a loiterer’s conduct.
Unfortunately, Montgomery County’s draft bill fails to sufficiently define its terms, thus inviting arbitrary, discriminatory arrests and overzealous enforcement.
EDITS, 10/27: McCarthy, not McCutcheon (“McC” in my notes); links added to the approved MCCPTA resolution against the curfew and to a copy of Bill 35-11 ; the latter document links to the packet submitted to Council on 10/24.