In its most dramatic move against civil liberties in recent memory, Berkeley's City Council voted 7-1 on May 10 to pass a previously rejected law that bans loitering "with intent" to break drug laws. Moments after Councilmember Maio admitted, "We're not really going to solve anything with this," she joined the Council's majority and officially pronouced hanging out a threat to public safety.
Councilmembers Dean and Wainwright originally proposed the ordinance on May 22, 1990, after reviewing similar legislation from East Palo Alto, Menlo Park, and Monrovia. The move touched off a storm of controversy and outrage among a broad spectrum of the community, who came together to oppose it. The American Civil Liberties Union, COPWATCH, Uhuru House, the Police Review Commission (PRC), and even the City Manager opposed the ordinance. Revisions were made twice to make the bill more palatable, but the final draft was voted down on December 10, 1990, in an action then-Councilmember Ann Chandler hoped would "bury this once and for all."
But while everyone breathed a collective sigh of relief, Dean and Wainwright got busy with the shovels, unearthed the dead law and touched it up for resubmission. Their revision "committee" proudly announced: "The ordinance has been revised in direct response to the comments that have been received."
Under the new law, anyone who hangs out near parks, schools, recreation centers, laundromats, liquor stores or boarded-up buildings, "with the intent" to buy, sell, or use drugs, has two choices: leave the area immediately when asked by a cop to do so, or get arrested on a misdemeanor charge.
Hoping to pre-empt any objection to the draconian recklessness of the bill,
Dean and Wainwright set about codifying how a cop can legally establish "intent."
Anyone can be busted under the new law if:
Dean and Wainwright included a number of other substantial changes to the bill, changes which have received little public attention. Under the old law, loiterers could be targeted by the police if they were within 50 feet of the listed establishments. Under the new law, police can run you off or charge you with loitering if they find you as close as two blocks -- in any direction -- to an abandoned building, a laundromat, or any of the other sites on the list. In addition, Dean and Wainwright expanded the new list to include schools and recreation centers, which were not included under the old bill.
The sponsors of the bill firmly opposed a public hearing. Dean and Wainwright cited the "widespread circulation of the ordinance and discussion in the community" as the reason why further discussion of this issue would be tiresome and superfluous. In fact, just such discussion had led to the ordinance's rejection in past years.
On April 18, Mary Wainwright met with the Police Review Commission to solicit their approval of the proposed law. During this meeting, Wainwright said repeatedly that this law would only be used on those the officer "knows" is involved with drugs. PRC members asked Wainwright why an officer can't just arrest a "known" drug user for violating drug laws; or, if no drug laws are have been, why the guiltless party should move along or face arrest. Wainwright's only response was, "Standing on the street corner leads to death."
In this meeting, Wainwright also stated that the goal of the law is not to prosecute individuals for its violation, but to chase Berkeley youth away from certain parts of the city. "Right now we don't have any reason to ask them to move along," said Wainwright, "This tool is specifically to ask them to move along." In effect, the Council is giving the police the right to take action without the responsibility of justifying it in a court of law.
The PRC was not impressed with Wainwright's arguments. Citing "extreme reservations with the proposal," they voted 5-2 to revoke their approval of the proposed measure. In a later meeting, they further voted to request that the City Council hold a public hearing before voting on the law, and asked about the effects of similar laws in other cities.
Unfortunately, the PRC's recommendations were to no avail. On May 10, Councilmember Shirek was the lone voice of reason. The rest of the Council chose to ignore the PRC, the former City Manager, previous Council actions, and a packed house of Berkeley citizens opposed to the measure, and approved the most brutal attack on our civil liberties to date.
Note: As we go to press, opponents of the law are considering a ballot initiative petition drive to revoke the anti-loitering ordinance. Call COPWATCH at (510) 548-0425 for an update on this issue.