County Council tables curfew, loitering bills

Dec 6 Montg.County Council hearingvideo link

Dec 6 Montgomery County Council hearing: video link (choose item 10)

On Tuesday the County Council voted on the youth curfew and loitering/prowling bills  — but neither approved or rejected either one.  Instead, in a procedure that left at least one pro-curfew councilmember fuming, the Council simply tabled both bills.

While that’s certainly better than votes to pass either bill, a county press release indicated it also means “either bill can be reconsidered at a future date.”

That being the case, the statements made by each Council member are worth examining in more detail; some are among the most detailed positions taken in public about these issues.  The upshot is that while the Council is currently quite divided, future high profile events like the flash mob robberies or the Silver Spring gang fight might quickly sway enough members to quickly dust off and approve the youth curfew proposal, and perhaps the loitering/prowling one as well.

Roger Berliner (District 1) (2:04 in the video)
Newly elected Council president Roger Berliner led off with remarks framing the debate over both bills as one that required a different, higher level of agreement than more routine matters, continuing:

…we have strong views with respect to these issues … what is clear is that at this moment in time there is not consensus with respect to these matters  […] I don’t think that this is a matter that should be acted upon on 5-4 votes…

Not surprisingly, the council president had engaged in a lot of discussion with other council members before the session — and found that whatever enthusiasm there had been for either bill had waned: “a strong majority of you do not believe that at this moment in time there is a compelling need to act.”

Phil Andrews (District 3) (2:13)
Councilmember Andrews — the leading Council opponent of the youth curfew proposal and the leading proponent of the loitering/prowling one — spent more of his time discussing the weaknesses of the curfew bill.

Characterizing the debate as a “disagreement about proposed policy, not a disagreement about proposed goals” of reducing crime, Andrews noted the Public Safety Committee’s recommendation (Andrews and Berliner, Elrich abstaining) against that bill as “not needed at this time,” given declining overall and youth crime levels. Andrews emphasized the success of increasing police in Silver Spring, where incidents of concern had happened.  He also highlighted widespread community opposition:

…every countywide organization that has weighed in has opposed the curfew; every … commission that works with young people has declined to endorse the curfew […]  I think it is safe to say that a majority of the Council and a majority of the community does not agree that this proposal is warranted.

Interestingly, Andrews credited former Council president Valerie Ervin with preventing a “rush to judgment” on the expedited curfew bill, despite her own support (as it turns out) for that bill; he also said that time has shown that the July gang fight was an isolated event.

Regarding his loitering bill, Andrews defended it as a “more focused tool” than the curfew, “based on behavior, not age or time of day.”  Acknowledging the vigorous debate about his proposal — but not its rejection by the Public Safety Committee (Berliner and Elrich against, Andrews for) — Andrews chose to highlight other possible approaches to youth crime favored by Rice (school resource officers) or Navarro (youth programs).

Craig Rice (District 2) (2:23)
Councilmember Rice remains the leading proponent on the Council of Leggett’s youth curfew proposal.  Conceding it was no “panacea” for youth crime, but rather part of a comprehensive approach, Rice insisted it would oppose an alleged “mentality among our children that they can do whatever they want whenever they want” — even if it would often (indeed generally) be incorrectly timed to do so.

Re racial profiling, Rice said he had experienced it himself in Montgomery County “a long time ago,” but was now “confident that the structures that are in place now ensure that those types of incidents do not happen again,”  based on conversations with… police.  Meanwhile, he said, the African American community was the “subject of ridicule” for the largely black composition of the flash mobs responsible for robbing local 7-11s.

Rice then developed what may strike some as unusual primary reasons to support a blanket youth curfew: to keep young potential wrongdoers safe from retaliation or stigmatization. In an emotional voice, he read a number of unarguably ugly, racially taunting or threatening comments about a surveillance video of the theft mob robberies, made on a local news web site.  Councilman Rice appeared to consider these to be evidence of a serious, pervasive intent to retaliate, and that in turn to be sufficient grounds for a curfew: “We are at a defining point right now where we can make a statement and keep one of these youths, just at least one, from making the wrong decision that might put them in harm’s way.”  Rice also asserted that sentiments in his district were pro-curfew.

Rice then moved an amendment by Nancy Floreen calling for a youth curfew that was limitable in time and geographic scope that would sunset by December 2013, and that could be called by the Executive at any time after consulting other county officials, he also moved that in conjunction with a non-expedited (i.e., a 5-4 vote would suffice) version of the curfew bill.

Nancy Floreen (At large) (2:30)
Councilmember Floreen said that the two flash mob events since the bill was introduced caused her to re-evaluate the need for a curfew: “I don’t think it’s a one-time thing for Montgomery County.”  She compared the curfew to the driving rule for under 18 year olds as another “great tool for parents” — some parents — in giving them leverage to get behavior they otherwise seemed unable to command.

Floreen was more persuasive in arguing for a vote rather than the (expected) tabling outcome, saying it was owed both to advocates and opponents of the bills.  She closed by enumerating the advantages of a curfew as she saw them:

1) It protects our young people from getting ensnared in very difficult situations, 2) it assists parents in protecting their kids, just as the state driving laws do, and 3) it sends a really clear message that is necessary to our community that safety is a high priority.

Tabling or voting down the bill presumably sends the less necessary message that civil liberties are a high priority.  As if months of controversy hadn’t happened, she then closed “This is a tool and a community standard that we can all agree on.”

Valerie Ervin (District 5) (2:34)
Councilmember Ervin begain with requesting some discussion from Council and County Executive staff, which established mainly that Leggett supported the Floreen amendment.

Confirming the impression she made in September at the Silver Spring Citizens Advisory Board hearing, where she assembled only proponents of the curfew bill, Councilmember Ervin echoed the comments of Councilmembers Rice and Floreen in several respects: in her view, the curfew bill was about the safety of young people, and it was an answer to and a “statement” about something new:

…I do worry about the new kind of crime trends we’re seeing… flash mob situations are part of that.  I think to give our police department every tool … is very necessary.  […] I think not only are we protecting young people but I think we’re making a statement here at the same time.  I do not believe these trends are going away, I think they’re only going to grow.

Ervin said that to her the bill was not about “kids with two parents at home who have strict rules for coming and going” — so that curfews presumably merely rule out what they never had — but rather those who lacked that kind of home life.  To me the comment perhaps inadvertently, but still rather blithely combined a slap at single parent families with a disregard of the rights of any family that doesn’t feel curfews — whether county-approved or not — are the way they want to raise their kids.

Nancy Navarro (District 4) (2:41)
Ms. Navarro began by expressing the somewhat wistful hope that as much discussion would be spent on “positive youth activities,” closing the academic achievement gap, and other programs policies that would reduce the “overrepresentation of youth of color” in the juvenile system.  She acknowledged that she was initially attracted to the curfew proposal, but then thought about herself “not as mother but as a legislator,” ultimately deciding alternatives hadn’t been tried enough:

I have not had enough experience sitting here witnessing an aggressive proactive approach to support our youth and families in crises.

She recalled her innovative “youth cafe” collaboration with IMPACT Silver Spring in the Briggs Chaney crime hotspot as an example of a better approach — and told of talking with one young African American woman from Sherwood who said her friends were so bored they were looking forward to a curfew — as an exciting way to get chased by police.

That said, Navarro, too, acknowledged interest in amendments that limit the duration and/or affected age range of the youth curfew – but those late-breaking developments hadn’t earned her support yet.*

George Leventhal (At large)  (2:45)
Pointing out that the current statutes allow a curfew in the event of “riot, weather calamity, or war,” Councilman Leventhal gave a strong statement of opposition to the youth curfew proposal:

I think Silver Spring is a safe place.  I don’t the think the presence of teenagers rises to the level of a riot, an emergency, a war.   […] We need to understand that young people are part of our community and that to impose a significant restriction on their liberty should [only] be done under really emergency circumstances.  I don’t sense that state of emergency.

He reiterated a point I heard him make at at a Loiederman Middle School Town Hall — that the curfew debate itself harmed the business climate in Montgomery County and specifically in Silver Spring:

I don’t think this debate over the curfew has been especially constructive, and I hope it ends soon, and I’m not in favor of the proposed amendment or the underlying bill.

Marc Elrich (At large) (2:50)
Councilmember Elrich provided the most complete discussion of the curfew proposal on its public safety policy merits as he saw them, as opposed to those of “sending a message” or expressing a standard. Elrich staked out ground rather close to that of the County Executive (who all but said statistics, shmatistics in his FAQ document) in asserting that the debate was not “well served by a discussion of data,” but instead turned on an evaluation of the most notorious incident precipitating the proposal – the July gang fight in Downtown Silver Spring.

Elrich conceded that the “curfew loses if it’s strictly a data discussion” — and also conceded that he didn’t believe it would have much effect on flash mobs:

I frankly don’t believe this has much effect on flash mobs.  I think people intent on doing – particularly those intent on doing serious crime are going to care less about the possibility of getting a ticket for a curfew violation.  I just don’t think that’s a reasonable deterrent…

That observation notwithstanding, Elrich asserted the youth curfew would somehow be an effective measure against the seemingly similar gang fight scenario.  The Councilmember was concerned that the July fight might be “indicative of a changing situation” requiring the proverbial new tool in the toolbox to deal with that: “I do think that stuff is a game changer if it becomes the norm. If it becomes the norm we need different tools.”

Yet Elrich also advocated an amendment that would lower the maximum age subject to curfew to 16 — excluding an additional number of July gang fight participants — as well as not granting permanent curfew power to the County Executive.  Elrich wants a tool that could “be more carefully wielded than either the County Executive’s or Ms. Floreen’s proposal. […] I would support a modified version but not this version.”  Overall, Elrich argued, the wisdom of the youth curfew depends on “whether we’re a landing place” for non-county troublemakers. ”

Elrich was firmer in opposing the loitering bill (which he voted against in committee).  It was “clearly something the police don’t want,” and “not a good cure for the problem.”  Elrich spoke of “turning police officers into fictional characters who can discern ill intent and issue tickets based on the perception of ill intent,” adding “I don’t believe the police chief can imbue his officers with such magical powers and I wouldn’t ask him to try to do that.”

Hans Riemer (At large) (2:57)
Focusing on the alleged public safety value of the curfew, Councilmember Riemer — a curfew advocate at the Youth Town Hall event in October — explained his change of heart on the issue:

…what has been incredibly compelling for me, and changed a lot of my feelings about the issue, was the results of the increase in police staffing in Silver Spring.  […] [my research tells me that]…increasing the number of police that you have is the most important thing, far and away, and most other policy measures are well behind that.

Riemer cited statistics saying that the number of robberies in the Silver Spring Central Business District declined from 6 per month in previous years to 1.5 per month after the “upstaffing” in police.  He continued:

The question I am left asking is what the additional benefit for public safety that we would get from a curfew? …I think it’s quite small… And in the face of that, my finding is that there is widespread community opposition.  For something of such small potential benefit — significant but small —  we should have a very, very good reason to overcome such widespread community opposition.

With that said, I don’t want to assume that the positive crime trends are going to continue forever…  [but] until we feel like Silver Spring is not a safe place for our kids to go out at night, and I don’t believe that that is the case… the right position for us is to say that the jury should remain out, because the facts on the ground are in flux.

And with that, Riemer moved to table consideration of the amendments and the curfew bill.

Tabling votes
Councilman Rice quickly objected that the tabling motion was improper, because no other urgent matter had arisen; he was overruled by Councilman Berliner after consulting with legal staff in the chamber about the procedural rules involved, and the motion to table the curfew amendment passed 6-3: Riemer, Leventhal, Elrich, Berliner, Navarro, and Andrews for, and Ervin, Floreen, and Rice against.  Berliner clarified the significance of the vote:

…should at some point in the future the council have a consensus with respect to these matters we will take it up at that point in time; should the situation on the ground change we will take it up at that time, but until then this matter is going to not be before this body.

Turning to the loitering bill and its negative recommendation from the Public Safety Committee, Berliner said he thought the Council “would be also well advised to just have it sit for a while.”  Rice took the floor to “state for the record that a travesty of justice has just been implemented by our Council President,” Councilmember Floreen moved that the “brilliant” committee recommendation to reject the loitering bill be voted on… and Councilmember Riemer moved to table that vote as well.  This time, the motion carried by only 5-4, with Councilmember Elrich joining the prior “Nay” votes.

Conclusions
Several factors have been in play in fighting the curfew and loitering bills to their current standstill.

First and foremost, enormous credit is due to the students like Leah Muskin-Pierret, Abigail Burman, and others involved with StopTheCurfew.net: they researched the legal and policy issues thoroughly and presented their findings well, they educated, mobilized, and gave a platform to large numbers of students and parents, they persistently lobbied County Council, and they politicked effectively outside the Council with the Montgomery County PTA and local media.  They were the youthful, beating heart of the “community opposition” so many Council members referred to; sincere congratulations to all of them for their successes so far, and for a textbook example of community and issue based organizing.

Second, one might also argue that the system worked, at least so far, in this legislative check of the County Executive.  Leggett clearly misstepped by introducing and pressing an expedited bill — requiring a 6-3 vote — over the head of Public Safety Committee chair Phil Andrews.  The back and forth about the initial “rush to judgment” that was “wisely” delayed was evidence of some sensitivity to that by several council members.

As has been the case for most of the debate, there was much more discussion of the youth curfew than of the loitering bill — and it must be counted as a cost of the debate that the loitering bill was an acceptable alternative by all too many curfew opponents.  It isn’t — if anything, it would be worse in potentially affecting anyone, and in enacting a pseudo-legal apparatus for bypassing probable cause and ratifying police clairvoyance as a law enforcement prerogative.

Even more worrisome is the fragility of the success in stopping both bills.  Several council members continue to be all too willing to wipe their feet on everyone’s civil liberties for the sake of ‘sending a message,’ enforcing ‘community standards’ as they see them, and/or for the sake of safety advantages they concede to be small.  And others may be ready to revisit the debate and approve these measures the next time some headline grabbing incident takes place.  

But that’s nothing new — these days, no civil liberty can ever be taken for granted, and just preserving one can be a major accomplishment.  So we can take some real satisfaction in having elevated the debate about the ill-advised curfew and loitering measures — and more importantly in having prevented them, at least for now.

(To correspond with any of the Council members — whether to congratulate, politely criticize, or simply inform them, visit our Montgomery County page and click the corresponding email icon.)

= = = =
Other coverage of the Council’s Tuesday action:

* Navarro also noted she’d been interested in amending the curfew with reporting provisions — meaning she might be interested in the “encounter form” language of the LCRRA.

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