| Notable is the "OrdinanceMemo" - created yesterday. Sometimes the explanation is worse than silence (as police officers should know from those they arrest). Chief Wightman states: I recommended these modifications to the City’s code of ordinances at the October 2008 City Council goal setting retreat because Brighton did not previously have a mechanism for addressing harassment at this level. Harassment that reaches the level of stalking can be addressed under state law, but lesser forms of harassment require local ordinances. The language adopted in Brighton was adopted primarily from a similar ordinance in Royal Oak that has been in effect for decades. As I described at the goal setting retreat, such ordinance modifications would provide a tool to enhance law enforcement efforts to respond to citizens reporting incidents of harassment. Some examples where this would apply include:
*Ongoing neighbor disputes that rise to a level where application of the ordinance might prevent a more dangerous escalation of conduct
*Ex-boyfriend or ex-spouse harassing an individual or the new significant other
*Unwanted and repeated text messages
*Harassing phone calls or hang-up calls
*Co-worker harassment
*Harassment of an individual because of their race, sexual orientation, or religious affiliation "Ongoing neighbor disputes that rise to a level where application"...? So this statute can be used by neighbors against neighbors? That begs the original question - what exactly does "annoy" mean in a neighbor-dispute context. Still unconstitutional. And second, that contradicts this (unfortunately paraphrased) statement in one of the very first Livingston Daily (& Argus) stories on the issue: Foster said the rules, which take effect Jan. 2, are aimed at those who interfere in public areas, as opposed to residents who are simply annoying for the sake of annoyance.
So, Wightman now memo's Foster saying non-public disputes like neighbor issues are included - not just "public areas" conduct as Foster had originally told the media. But Wightman's whole laundry list of reasons is suspect - "Harrassing phone calls or hang up calls"? That would seem to already be covered by federal communications statutes and stalking law. "Harassment ... because of race, sexual orientation, or religious affiliation." I'm all for preventing racial discrimination, but this is already covered by federal and state law, with the note that "harassment" itself must be tightly defined to avoid constitutional issues even in this domain. "Unwanted and repeated text messages." That's new - although not clear from the ordinance - and begs the question of what's "unwanted". That's "unconstitutional" because it is subjective and based only on the alleged-victim's definition of wanted. Wightman then proceeds to list more than dozen similar communities (which means thousands of communities do without these burdensome and inane regulations), but then argues that Brighton's allegedly sets a "higher standard" for law enforcement than the other communities. He asserts Brighton's "requires a course of conduct or repeated acts in order for enforcement action to occur" where other ordinances "appear to only require a single instance..." But is that true? Read the ordinance (just the changes are underlined): Sec. 54-98. Insulting, harassing, etc., others.
(a) It shall be unlawful for any person in the city to insult, accost, molest or otherwise annoy, either by
word of mouth, sign, or motion any person in any public place.
(b) It shall be unlawful for any person to harass any person in any public place by striking, shoving,
kicking or otherwise touching a person or subjecting them to unwanted physical contact or following a
person in or about a public place or places.
(c) It shall be unlawful for a person to engage in a course of conduct or repeatedly commit acts that
alarm or seriously annoy another person and that serve no legitimate purpose.
(d) It shall be unlawful for any person, with the intent to harass or alarm another person, to communicate
with a person, anonymously or otherwise, by telephone, mail, or any other form of written or electronic communications, in a manner likely to harass or cause alarm.
(e) Any person found to violate this chapter shall be guilty of a civil infraction and shall be punished by a
fine(s) as set forth in section 1-16(b).
Looking just the new parts (because the old provision is suspect too), part (c) does in fact limit itself to "course of conduct or ["or" suggests that "course of conduct" is different than "repeatedly", and could be a singular act stretched over time] repeatedly" but part (d) immediatley takes that back, being triggered by any (single) act intended "to communicate with". Part (b) is also related to one act, although it is perhaps the most reasonable and well-defined section since it refers mostly to objective behavior - other than the phrase "unwanted physical contact," which is subjective. Of course, part (a), which admittedly is not "new" - is equally unconstitutional and one-act focused. Given its vagueness, part (a) looks like it covers just about everything any police officer could need to use, and the changes merely have brought to public attention the unconstitutionality of the whole thing. Wightman makes it clear though that he seeks an expansion of local police power: Harassment that reaches the level of stalking can be addressed under state law, but lesser forms of harassment require local ordinances.
That begs the question again. Exactly what "lesser forms" of harassment are we regulating? Why not be specific. The language of this statute gives the police too much power in defining what harassment is. And why is state law not good enough? There must be reasons the state has chosen not to regulate such conduct. The whole list Wightman's "examples" is suspect because Wightman is using proxies for "harassment" that depend on subjective, un-definable words. State and federal harassment law works well - obviously not well enough for Wightman - because it has been "vetted" through long-processes in both the legislature and court system. For cities to try to circumvent that or "set higher standards" is treading in dangerous territory. While I'm for "local control," there are some issues, like criminal conduct regulation, that is better left to the state legislature. Having states with somewhat uniform standards within the state makes travel and commerce more likely. Like in baseball stadiums where special rules cover unusual local conditions (like the wall height or vines growing on a wall), City ordinances are appropriate for defining those situations. Good city policy limits the number of regulations to those situations. At the very least though, the City is still bound by the "higher standard" of the US Constitution. |
