Memo says loitering law flawed

Council proceeded despite warning about drug zone ordinance

`It does seem strange'

City attorney advised them to delay vote on Newtowne Twenty

February 18, 2000|By Amy Oakes | Amy Oakes,SUN STAFF

The Annapolis city council ignored the city attorney's warning of a defect in its new anti-loitering law, and went ahead this week to designate the Newtowne Twenty housing development as a "drug-loitering free zone."

In a memo given to the council members before their meeting Monday -- and obtained by The Sun yesterday -- City Attorney Paul G. Goetzke recommends that the council table the vote until its next meeting because the law firm hired to provide legal advice for the expected lawsuit had discovered a "defect in the underlying ordinance." The memo states that the defect can be easily corrected, which would improve the law's chances in litigation.

The American Civil Liberties Union Foundation of Maryland filed a lawsuit Wednesday in Anne Arundel Circuit Court against the city and its police department, challenging the constitutionality of the law, which was narrowly passed last year. The suit was filed on behalf of the National Association for the Advancement of Colored People and three Annapolis residents who counsel youth, the homeless and drug abusers.

Susan Goering, executive director of the ACLU of Maryland, said she was surprised to learn of the memo, which was placed on the aldermen's desks before the meeting.

"It does seem strange to pass a resolution in the face of this legal advice," Goering said. "But, it doesn't surprise us that other legal counsel would see flaws in the law."

Goetzke declined to comment on the memo, saying, "The office of law does not comment on its attorney-client communications."

A source, who declined to be identified, said the "defect" refers to a section of the law that states an officer must determine if a suspect's actions are drug-trade related and then ask the person to move along. If the person does not, the officer can make an arrest.

The source said the law contradicts general police practice of an immediate arrest if the officer has probable cause of illegal activity.

The ACLU contends that the anti-drug and loitering law is unconstitutional and targets a class of people who stay out at night, have dealt drugs in the past or make hand gestures to friends.

The anti-loitering law allows Annapolis neighborhoods to apply for "drug-loitering-free zone" status. If the designation is granted, the ordinance gives police wider discretion to act against loiterers.

The ordinance bars known drug offenders -- those convicted of drug possession, distribution or use in the past seven years -- from loitering in designated areas. Police officers can also move along people they suspect are dealing drugs within the areas.

The designation remains in force for two years and can be renewed.

The memo suggests that the council vote on Newtowne Twenty at the March meeting in which resolutions to designate the Robinwood neighborhood, the area within 500 feet of 24 Pleasant St. and the area within 500 feet of 1003 Monroe St. as "drug and loitering free zones" are expected to be on the agenda. The memo also recommends making the correction before the resolutions are adopted.

"Therefore we strongly recommend that the Council not adopt the Newtowne 20 Resolution until the correction is made," the memo states. "If we lose the legal challenge, the City may be ordered to pay significant legal fees."

Alderman Samuel Gilmer, a Democrat representing Ward 3 who voted to table the resolution Monday, said he had talked to the city attorney about the issue a few days before the meeting. Alderman Sheila M. Tolliver was the only other council member to vote to table the resolution.

"The city attorney had asked me to see if we could get it held off," Gilmer said. "We tried, but failed."

"I was just trying to save the city some money," Gilmer said.

Mayor Dean L. Johnson said the city uses outside law firms to consult on issues the city attorney's office does not have time for. He said if the recommendation had come to the council earlier, it might have affected the vote.

"The legal review had not been as thorough as we'd expect," Johnson said.

Johnson said the residents of Newtowne Twenty, one of Annapolis' 10 public housing developments, deserved a decision this week because they had applied for the designation in October. To change the law, the council would have to introduce an ordinance, which could take up to three or four months, he said.

"It wouldn't really be fair to them," Johnson said.

Supporters of the law, including Alderman Herbert H. McMillan, who introduced the ordinance and resolution, have said that residents had met the designation requirement of having three or more drug-activity arrests within two years in the neighborhood and had wanted the designation. In response to the ACLU suit, McMillan has said he was surprised to see the NAACP listed on the complaint.

He has said Newtowne Twenty is a predominately African-American community and that the NAACP was fighting this neighborhood as it "seeks to take back its streets from drug dealers."

McMillan, who could not be reached for comment yesterday, has said he was disappointed that the local NAACP chapter was more interested in maintaining its political alliance with "local demagogues" and the ACLU than the African-American residents of Newtowne Twenty.

Carl O. Snowden, a lifetime member of the NAACP and former Ward 5 alderman, defended the organization and the other plaintiffs -- Larry Griffin, Kenith Dean and Parris Lane -- listed in the complaint.

"It is unfortunate that citizens who have a different point of view are called demagogues," Snowden said, adding, "I am convinced that once a judge reviews the recently passed Annapolis law, it will be struck down."

The city has 30 days to respond to the ACLU lawsuit. Goetzke has said the city might wait until after the suit is resolved to enforce the law at Newtowne Twenty.

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