Mixed reviews for loitering bill 35-11 at County Council public hearing

Speakers at public hearing about the Montgomery County loitering/prowling bill 35-11.

The public had a chance to weigh in on the  proposed Montgomery County loitering/”prowling” bill 35-11 on Tuesday evening, and the reviews were mixed at best.

The opportunity was a Montgomery County Council Public Safety Committee hearing — chaired by the bill’s sponsor, Councilman Phil Andrews.  Committee member Roger Berliner attended as well, but Marc Elrich was absent. (A video of the hearing can be seen at the Montgomery County web site.)

In addition to testimony by Thomas Nephew, posted below, the Public Safety Committee heard from seven other people: Mike Mage of the ACLU of Montgomery County, Max Etin (for Delegate Kirill Reznick), Kathleen Boucher (County Executive senior staff), Jim Zepp (Montgomery County Civic Federation), and Darian Unger, Fred Evans,  and Rebecca Smondrowski, all speaking as private citizens.   In addition, the ACLU of Maryland submitted a detailed memorandum opposing the measure.

Mike Mage noted a number of substantive objections to the bill, among which were that it failed to provide due process because it “does not let people know what is prohibited. Instead, it lets proprietors and police decide that on the spur of the moment.”  He went on to ask,

Whatever happened to probable cause? What happened to criminal intent?  The bill has no probable cause requirement. It doesn’t even mention intent. The Annapolis loitering law was thrown out in 2001 by the United States District Court for lack of criminal intent.

The bill says: “circumstances that warrant alarm”.  ”Alarm” is undefined.  This can result in racial profiling. Do I become a criminal because someone is alarmed at my language, or race, or dress?

Max Etin, speaking for Delegate Kirill Reznick, was actually the first speaker of the evening, and Reznick’s first words arguably set the tone for the hearing — a non-ringing, sort-of endorsement of the Andrews loitering bill:

As a resident and elected representative of Montgomery County, I feel obligated to express my muted support for Councilmembers Andrews and Leventhal’s bill 35-11 … Though my preference is for no legislation to be adopted with regard to this issue, this proposed legislation is a significantly more fair solution to perceived deficiencies in our county laws to deal with groups of troublemakers.

Reznick’s message went on to take more time taking issue with the youth curfew bill than defending the loitering one, and reiterated, “Of all the choices available to the county, my preference is to do nothing on this issue.”

Ms. Kathleen Boucher — Assistant Chief Administrative Officer for County Executive Ike Leggett — followed.  She noted that the County Attorney believes the Maryland Court of Appeals would probably find the bill unconstitutional because it “vests a police officer with virtually unfettered discretion to determine whether a person is committing the crime of loitering and prowling,”  and later referred to Police Chief Thomas Manger’s similar concerns.  Ms. Boucher was also frank, though, in defending the similarly questionable youth curfew — her boss’s proposal — and in accusing Councilman Andrews of an about-face on loitering just to confuse debate on the curfew bill:

Why else would an idea that was unanimously rejected by the Council in 2006 be resurrected with a slightly new twist in 2011? In 2006, the Council repealed the County’s loitering law because it did not “provide a person of ordinary intelligence adequate notice of what conduct is forbidden in the statute.”1 Citing concerns about the constitutionality of the law, the Council deleted the term “loitering” from the County Code altogether and substituted concrete language that prohibited disorderly conduct. Councilmember Andrews noted at the time that “loitering in and of itself …should not be considered a crime”.

As advocates for a youth curfew, Ms. Boucher and Ike Leggett find fault with the loitering proposal for the same reasons Andrews prefers it: it isn’t directed at a particular class of citizens — under 18 years of age — who they believe to be at risk” and/or worrisome:

Bill 35-11 bill does nothing to address the vulnerability of our County that exists simply because youth curfews in neighboring Prince George’s County and the District of Columbia drive youth to visit Montgomery County late at night because there is no curfew law here. The loitering bill does nothing to reduce the number of minors who are out late at night and at risk of becoming involved in criminal activity or the victims of criminal activity. There is no authority under the loitering bill for police officers to direct minors to go home if they are out late at night. The loitering bill does nothing to support parental responsibility for children. In sum, there is simply no logical relationship between the loitering and curfew bills.

Jim Zepp, speaking for the Montgomery County Civic Federation as chair of its Public Safety Committee, said that the MCCF voted to support the 35-11 loitering bill at their November general meeting.  However, Mr. Zepp — who noted he had over 25 years of experience in the criminal justice field — added that given the potential for misuse and abuse by police that could threaten basic rights,

We would strongly recommend that the County Council take a proactive approach in this regard by establishing an annual reporting requirement that would document how this law is being applied by the County’s law enforcement personnel.

Among the data Mr. Zepp recommended for collection were number of incidents involving loitering/prowling charges, frequency counts of arrests per incident, day of week/time of day frequency counts for incidents involving these charges, number of arrestees by age and race/ethnicity, and others.  Mr Zepp also warned against using loitering laws as an element of police crackdowns, citing cautions raised by the Center for Problem-Oriented Policing, which warns that “poorly planned, ill-conceived, and improperly managed crackdowns, intended merely as a show of police force and resolve, ‘can create more problems than they solve.”

Mike Mage spoke next, followed by me, and our testimony has already been described.  The three persons who followed us — Darian Unger, Fred Evans, and Rebecca Smondrowski — didn’t speak on behalf of any group, but none of them just walked in off the street either: Mr. Unger is part of the Silver Spring Citizens Advisory Board, Mr. Evans is a former principal in the Montgomery County Public School system, and Ms. Smondrowski is on the board of the Montgomery County PTA, which recently voted to oppose the youth curfew bill 25-11.

Darian Unger came principally to oppose the youth curfew bill, despite the hearing’s focus on the loitering bill.  It struck me that several of his (well taken) objections to the youth curfew bill apply with equal force to the loitering one: the measure was “a knee jerk reaction to an isolated fight,” something with the potential to “selectively restrict the rights of innocent people to assemble peaceably.”  While Mr. Unger seemed skeptical of the loitering bill as well in a conversation before the hearing, he praised the effort — faintly — in saying “I’m glad the Council is at least looking at and exploring more thoughtful alternatives, I think it’s a step in the right direction…”

While Fred Evans was also better versed in objections to the youth curfew than to the loitering bill, he went beyond Mr. Unger’s comments in urging the Council to investigate other alternatives first.  An interesting idea was to convene a representative group of minors from the county and ask them what they thought would be effective ways to reduce youth crime; likewise, Mr. Evans recommended consulting law enforcement and surveying parents to learn what kinds of limits they impose on their kids.  Evans ended with the observation that “we often make bad decisions in the heat of the moment …prevention and intervention programs should be our primary focus.” 

Like most other speakers, Ms. Smondrowski, was an unequivocal opponent of the youth curfew measure.  But she was also the most unequivocal supporter of the loitering bill, explaining that a break-in of her home had left her shaken.  The loitering bill, in her view, is preferable because it’s “based on behavior rather than age and time of day”; she argued that it represents a “measured and targeted approach to addressing suspicious or menacing behavior that is a threat to people and property, and it allows authorities to use their discretion.”

The real winners of the evening weren’t even on hand: the most widely shared sentiment Tuesday evening was that the youth curfew was no good.

But as far as the loitering bill itself went, neither proponents nor opponents of the loitering bill could have come away newly confident about their prospects.  On the one hand, there were few outright endorsements of the bill; on the other hand, there were a number of statements that amounted to “well, it’s better than the curfew” — and those may seem to swamp opposition from expected corners like civil libertarians or Ike Leggett’s office.

For loitering bill opponents to prevail, it will be necessary to disabuse many of their fellow curfew opponents of the idea that Andrews’s bill is somehow better than Leggett’s.  It isn’t.  It’s true that the one-size-fits-all nature of a youth curfew guarantees it will be a daily infringement on the rights of youths and their families.  That means it will infringe on the rights of both the poor and — somewhat shockingly, it would seem — the privileged alike.

But to replace a youth curfew with a loitering/prowling bill is simply to replace one kind of unjustified, guilty-before-being-charged verdict with another one, and to expand that possibility to everyone.  While many youth curfew opponents may correctly calculate that they won’t ever be stopped under this statute, they at least shouldn’t pretend that makes it better.  It just makes it focused, in all likelihood, on a different class than the one they live in.

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