Andrews says “steam has gone out” of curfew push, touts anti-loitering bill – UPDATED

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 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.

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4 Responses to Andrews says “steam has gone out” of curfew push, touts anti-loitering bill – UPDATED

  1. Woody Brosnan says:

    Woody Brosnan wrote,

    In Prince William County a couple of years ago, three Hispanic men were arrested for loitering outside their own apartment complex. Fortunately, they were only cited and not taken to jail, where there names would have been sent to ICE. Supporters of the loitering law contend this would not happen in Montgomery County. But once you put a law on the books you give citizens a right to call the police and complain that the law is being violated. So a business or anti-immigrant group could file complaints and the police would be forced to respond. And this actually expands the hours that teens could be questioned for just hanging out.


  2. Mike Mage made a similar point at the meeting re business owners. The law does seem to be restricted to being applied in “public places” or “establishments” that welcome the public, so perhaps there wouldn’t be the risk of repeating the PG incident you describe. (I see I left out links to the text of the bill, I’ll fix that. UPDATE-fixed… and you’re right, the bill probably would risk the same kind of incident: “Public place means any place to which the public, or a substantial group of the public, has access. Public place includes any street, highway, and common area of a school, hospital, apartment house, office building, transport facility, or shop.”)

    I added that I felt that in general, all else equal, the fewer new laws to run afoul of the better. That’s especially true these days, when when running afoul of them can land people “in the ICE machine” — a very disproportionate result for a minor offense like this. So new laws should be absolutely necessary, and designed to successfully address real problems; I don’t think this one meets those tests. As Mr. Andrews points out, crime is declining, and it seemed to me that he conceded his proposal wouldn’t have necessarily made a difference in either of the high-profile incidents that prompted the curfew initiative or now this one, presented as an alternative.


  3. I should add that Councilman Andrews’ reply to some of the above was that just because crime is declining shouldn’t mean you don’t take steps to continue to push for less. I agree with that, but doubt that this one would actually do much to reduce crime, at the risk of profiling or even deportation for those who happen to encounter an overly zealous police officer.

    I should also add that Councilman Andrews deserves a lot of credit for coming to the ACLU meeting and discussing his proposal, which he admitted he assumed would not find a lot of favor there. He was open to questions, criticism, and constructive proposals to tweak/improve the bill. But I think even tweaking leaves a problematic bill in search of a purpose.


  4. Pingback: People's Blog for the Constitution » Takoma Park, MD condemns domestic military detention

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