Essay by Ed Quillen
Salida legal system – October 1997 – Colorado Central Magazine
Seldom does one see constitutional issues argued in Salida Municipal Court, which generally functions as a Robin-Hood-in-reverse economic machine.
Most defendants are young and many are poor. They plead guilty and are fined and assessed court costs. Their money goes into the city treasury, to be spent on more police to protect us from the young and poor who hang out on street corners rather than at the Elks’ Lodge, or for more safety enforcement to protect us from people who can’t afford to bring everything up to code at once.
But the state and federal constitutions were discussed in city court on Sept. 3, and the result was a ruling from Municipal Judge Bill Alderton (also the Chaffee County judge) that the Salida loitering ordinance violated the state and federal constitutions and thus could not be enforced.
Two local men charged on separate occasions with loitering — Josh Edelstein and William Bradford Spence — moved to have their charges dismissed on constitutional grounds. They were represented by attorneys Ernest Màrquez of Salida and Mark Silverstein of Denver, the Colorado director of the American Civil Liberties Union.
Spence did not testify in court, but I knew about his case. His brother-in-law is a friend of mine, and he and Spence were walking back from downtown at 11:30 p.m. on June 20.
At the corner of Third and F streets, they saw four teenaged girls being cited for loitering. They stopped to watch their employee, a policeman, at work.
For their trouble, Spence got a loitering ticket, and my friend was charged with interfering with the police and faces a trial in county court.
The arresting officer for that case, Dan Martin, did testify on Sept. 3. Under oath, he said that he felt threatened by the two men because they stood erect with their arms crossed in front of them.
Now, my dad always told me that if you wanted to stay on a cop’s good side, you kept your hands where he could see them. And everybody’s mother has harped about good posture.
But in Salida, following parental advice means that you can get arrested because you appear threatening to a husky guy toting Mace, a night stick, a radio, and a pistol. Perhaps the way not to appear threatening to a Salida policeman is to genuflect.
Josh Edelstein, the other loitering defendant, did testify. He explained that he lives in a second-story apartment in downtown Salida. He met some friends after work (he’s a bartender and that means well after 11 p.m.)and was saying good-bye to them out on the sidewalk when a police car circled the block seven or eight times, then pulled over and an officer started writing tickets.
The car “had its lights on and all that for about twenty or thirty minutes,” Edelstein testified, “so I’m sure it disturbed people’s sleep a lot more than anything we did. One guy got woke up, and leaned out the window to see what was going on, and the police told him to get back inside.”
Keeping people’s sleep from being disturbed was one benefit achieved by the loitering law, according to another witness, John Brefeld, who resides near Alpine Park and F Street in the landmark “Gray House” (named not for its color, but for its first occupants, Garret and Julia Gray, who owned the Madonna Mine near Monarch).
Brefeld has lived in Salida about five years, he said, and until this summer, when the loitering law took effect, crowds of youths outside his house made so much noise that he had trouble sleeping.
I can’t speak for the present, but years ago we had friends who lived on F Street. When we visited on summer nights when the windows were open, the car noise from outside was dreadful. It was hard to carry on a conversation over the honking horns and revving engines, and they said it was hard to sleep, too.
So, I can understand the noise concerns, although the auto noise doesn’t seem a problem now. Then it was cruisers in cars, now it’s loiterers on foot.
I had noise problems, too, when we lived near the post office. The big trucks coming and going, and their banging and clanging against the loading dock, disturbed sleep on many nights. A church down the block held loud revival meetings, complete with singing and shouting, that lasted until the wee hours of the morning. I had to be up at 6 a.m. in those days because I had to be at work by 7 a.m.
But I like getting mail, and I believe in religious freedom, and if the exercise thereof disturbs me from time to time, well, nothing comes without a price. If you believe that people enjoy the right to associate in public places, then there’s a price to that, too.
At the municipal court hearing, most of the testimony came from Salida Police Chief Darwin Hibbs, who seemed a bit embarrassed at one point. Hibbs, who grew up in Salida, was asked if, when he was a teenager, he had ever hung out downtown. He confessed that he had, but Salida City Attorney Al Sulzenfuss successfully objected to further testimony along that line.
Hibbs testified that if one person in a crowd is creating a disturbance, it is often difficult to identify and cite that person, yet the police must do so, under the rules of evidence. The loitering law gives them the power to disperse any congregation, without the difficulty of finding a noisemaker.
Most of the questions Hibbs got came from the defense attorneys, who wanted to know how the police were applying the law.
In essence, the part of the law at issue prohibits loitering in certain parts of the city between 11 p.m. and 6 p.m. Loitering is defined as “remaining in one location for over five minutes; and one location for the purposes hereof shall be deemed to be within any two points within 200 feet of each other.”
Under the ordinance, defendants can be acquitted if they can show that they were part of a “lawful assembly as a part of peaceful and orderly petition for redress of grievances, either in the course of labor disputes or otherwise.”
But that’s the only exception. Hibbs testified that if firefighters were standing outside a building for more than five minutes, they would be breaking the law as it is written, although they certainly wouldn’t be cited.
That led Silverstein to argue that the law was unconstitutional because it gave too much discretion to the police. It is the city council’s job to determine which conduct is lawful, and that cannot be delegated to the police, he said.
It occurred to me that, the way the law is written, if a policeman stands and observes you loitering for the requisite five minutes, then he, too, has broken the law. There’s an exception for political activity, but no exception for lawful employment.
Most of the constitutional arguments, though, concerned “fundamental rights.” Federal courts have held that when a law affects a fundamental right, it must be drawn very narrowly to infringe as little as possible, and serve a proper governmental purpose that cannot be achieved any other way.
The example cited was from the City of Atlanta, Georgia, which wanted to prevent littering by forbidding the passing out of handbills.
Prevention of litter is a legitimate governmental goal, the court said, but banning handbills infringes in the First Amendment rights to free expression. Thus if the city wants to eliminate litter, it can ban littering, but not handbills.
Salida’s desire to reduce downtown disturbances may be a legitimate goal, the defense attorneys argued, but it can do so by enforcing laws against disturbing the peace, loud noises, public urination, etc. Banning the use of public spaces for normal social intercourse is an unnecessary intrusion onto a fundamental right of association.
Sulzenfuss, representing the city, essentially argued that there’s also a fundamental right to sleep in one one’s home at night, and if the city can close its parks during certain hours to protect that right, it can also close its streets.
Neither of these “fundamental rights” appears anywhere in the U.S. Constitution. As for the state constitution, well, some years ago I agreed to teach a writing class for Colorado Mountain College. I received a contract, which contained a loyalty oath, to the effect that I would support and defend the federal and state constitutions.
I had no problem with the federal constitution, but I figured I should at least read the state constitution before I signed an oath to support it.
Our state constitution is the first volume of the Colorado Revised Statutes, and it’s about 600 pages long. Most of that, of course, is footnotes and references to various court cases. If learnéd attorneys, who make understanding such matters their business, can’t agree on what it means, how could I make an honest statement about supporting it?
Fortunately for those of us who have never read our state constitution, neither prosecution nor defense alluded to any specific provision when they talked about “fundamental rights.”
Judge Alderton held against Sulzenfuss and the city in his ruling, issued on Sept. 8. He ruled that “walking about in a public place or standing in a public place is a fundamental right under both the United States and Colorado constitutions,” although he didn’t say where it appeared in either document.
Any regulation of a fundamental right must be very narrowly drawn to serve a legitimate governmental purpose that cannot be advanced any other way, Alderton observed, and Salida’s was not. “The City has ordinances prohibiting disturbing the peace, fighting, underage possession of alcohol, littering, and other activities which were found to be problems necessitating this Ordinance. These laws can be enforced without infringing on the fundamental liberties of all citizens for 7 out of the 24 hours of a day.”
And so, “the Ordinance is found to be overly broad and in violation of the Constitutions of the United States and the State of Colorado. Therefore, the Ordinance is declared to be unenforceable and the Defendants’ motion to dismiss is granted.”
The city had 10 days to appeal Alderton’s ruling, and an appeal was filed, Sulzenfuss told me. He said the city government had previously agreed to appeal if the city court went against the loitering ordinance.
An appeal, which would be heard in district court, won’t be argued until a transcript of the city hearing is prepared, and that would be the end of the year, at the earliest, Sulzenfuss said.
Meanwhile, Police Chief Hibbs says the ordinance will not be enforced until it works all the way through the courts. “That’s the only fair way to do it,” he said.
The appeal process could take years working its way from district court to Colorado Court of Appeals to Colorado Supreme Court to federal courts.
As an opponent of the loitering ordinance, I suppose I should feel heartened by these developments. But I’m disgusted that my elected representatives ever passed such a shabby law in the first place.
Forget my bad attitude for the moment, and keep in mind that I live cater-corner from the former St. Joseph parochial school, now leased by the Salida school district and used for kindergarten and sixth grade.
Now consider this section of unconstitutional Salida Ordinance No. 199711, not mentioned in court:
“It is unlawful for any person to loiter in a school building, on school grounds, or within 1,000 feet of the perimeter of such school building while school is in session or when children under the age of 18 years are present on the school ground after such person has been asked by a school administrator, other school representative, or a peace officer to leave the area. As used herein, the term `school’ refers to both public schools and private schools and includes facilities commonly referred to as `day care’ facilities. The prohibition in this paragraph shall not apply to persons upon privately owned property with the consent of the owner or lawful occupant thereof.”
How magnanimous of the city. I’m allowed to stand in my own yard on a school day.
But if I’m on the sidewalk and stop to talk to my next-door neighbor, we’re violating the law if we don’t move on within five minutes after being told to do so “by a school administrator, other school representative, or a peace officer.”
Peace officers carry badges, and I have a fair idea of what constitutes a school administrator. But who qualifies as an “other school representative”? A teacher, probably. But what about an officer in the school parents’ association?
Or the sixth-grade class president? If that sounds far-fetched, well, my own children, when going on school trips, were often told that they were “representing the school.” Which means that any given 12-year-old might well qualify as an “other school representative.”
Curious as to how I would know who might be able to tell me to get off the sidewalk in front of my own house in broad daylight, I asked Sulzenfuss. As city attorney, he wrote that law, and I figured he of all people should know what it meant.
But he dodged the question, then evaded it, then admitted that he really didn’t know.
Since he didn’t know, how am I, a mere Salida resident, supposed to know whether I’m breaking this law or not? Even if you want lethal injection for convicted loiterers, I think you’d agree that the law should be clear, so that a citizen can know whether he’s obeying or violating it.
As it is, I disregard the pipings of 12-year-olds at my peril — one might be an “other school representative” able to get me arrested, and the other as powerless as I am, and I don’t know how to tell the difference.
All right, I suspect you think I’m quibbling at this point, since few 12-year-olds would have the nerve to confront a husky, middle-aged man, no more than a policeman would arrest a fireman for loitering.
No child has actually ever said anything to me. But a 12-year-old might readily confront a 7-year-old. And that’s what makes our loitering law a bad idea.
Historically, laws that allow for so much discretion tend to be more vigorously enforced against people we perceive as more suspicious than average — or people we view as downright undesirable.
Whether that means bearded strangers, young men with earrings, teenagers, hostile neighbors, the handicapped, the indigent, blacks, Jews, obvious foreigners, young mothers, tourists, firemen, or businessmen is entirely a matter of discretion.
That a city council could pass such a poorly formed law — a law that also, as written, forbids a policeman from standing on a street corner for more than five minutes — says something dismal about the city council. It does not speak well either for the mayor who advocated it, or for the local newspaper editor, who lauded it as a prudent and sensible solution to some of Salida’s problems.
For the near future, though, loitering shouldn’t be much of an issue as the nights get colder with the approach of winter.
In the November election, five of the six Salida city council seats will turn over, and a new council might do what’s right and vote to drop the appeal and repeal the ordinance.
So, for the time being, and probably for quite some time hereafter, you can stand around in Salida at night without glancing over your shoulder to see if the police are watching, ticket book in hand.
But the loitering ordinance is a symptom, not the disease. When the city council passed it on an emergency basis early last summer, it also passed a slew of similar laws, such a youth curfew and one concerning the consumption of alcohol in public places (a beer with a picnic in a park is now a crime).
Kids have hung out on Salida street corners for a long time. Darwin Hibbs did it when he was a kid. A 1948 Salida Mail contained complaints about loiterers. For all I know, it was a problem in 1880 — that’s what kids do in small towns.
And Salida, until recently anyway, was a small town. But there are those who would make it otherwise — not a big city, but more like an exclusive, gated, covenanted upscale development on the model of some Los Angeles enclave where pedestrians are not fellow citizens, but either skulking potential felons or, perhaps even worse, people who can’t afford a car — since either constitutes a blight that might diminish property values.
And the easiest way to protect those soaring real-estate prices, so that people of means will continue to buy into this amenity-laden development, is to eliminate the pedestrians.
That faction prevailed on the city government. That faction was able to swing the municipal machinery like a club to batter people it didn’t like. Ideally, perhaps, government is supposed to concern itself with the welfare of the entire community, but in modern America, government is increasingly a tool of class warfare, and it isn’t the tool of the lower classes.
It would be a relief if this were merely a Salida problem, because then I could escape just by moving. But where?
Even Saguache County, perhaps the least-regulated jurisdiction in Colorado and an appealing destination for aggrieved Salidans, suffers from this problem. Bob Philleo, who served four years as a county commissioner there, once told me that “People who have money are always pressuring you to act against those who don’t.”
Observe Congress or the Colorado General Assembly in session, and you’ll see the same dynamics.
As is the case with “fundamental rights,” the state and federal constitutions are rather silent on this subject, too.
But I do recall reading that Thomas Jefferson and his followers, then known as Republicans, were opposed to strong governments, even governments with good intentions, because they feared that the wealthy would gain control, and use the government to advance their interests, while directing the government against everyone else. Their ideal was to limit the power of government, rather than try to direct its ends.
Like many of Jefferson’s ideas, that sounds like something worth keeping in mind.
–Ed Quillen
