Stakes run high in bid to defend loitering law

City could be forced to pay all legal fees if it loses challenge

March 14, 2001|By Amanda J. Crawford | Amanda J. Crawford,SUN STAFF

The fight to preserve Annapolis' drug-loitering law - which is being challenged as unconstitutional in federal court - could end up costing the city hundreds of thousands of dollars if it loses.

The American Civil Liberties Union, which is representing the Anne Arundel County chapter of the National Association for the Advancement of Colored People and three city residents in the lawsuit, has racked up legal bills of more than $220,000. If the ACLU and NAACP win the case, the city could be ordered by the court to pay all or some of the costs.

"We've been saying [to the city] since the outset: `If you enact this, you could be on the hook for these fees,'" said Dwight Sullivan, staff counsel for the ACLU of Maryland.

Those fees would be in addition to the expenses the city has accrued defending the law that passed the city council by a 5-4 vote in October 1999.

So far, the city has paid $33,800 to Funk & Bolton, a Baltimore law firm retained to help fight the suit, City Attorney Paul Goetzke said last week. That figure does not include the cost of Goetzke's time or that of other city employees. Miguel A. Estrada and his Washington law firm, Gibson, Dunn & Crutcher, have agreed to take the city's case on a pro bono basis, Goetzke said.

Critics question the prudence of risking a large amount of money on a law that passed by a one-vote margin, and which has been decried by many who say it could be used by police disproportionately against African-Americans.

"I think that it may have been reckless of the majority of the council to put us in this position of having this degree of exposure without further exploring the legality of this measure," said Alderman Sheila M. Tolliver, a Ward 2 Democrat who voted against the law.

Since either side could be expected to appeal the decision of Judge Catherine C. Blake of the U.S. District Court in Baltimore, the fees so far could be just the beginning.

"We are talking about a substantial amount of money eventually," Tolliver said. "I don't know how much - maybe a half-million dollars or more."

But the law's defenders say the threat of a lawsuit should not keep the city from enacting laws it believes are for the public good.

If the city council backs off "every time we pass a piece of legislation and someone threatens to take us to court, we could find ourselves not passing anything at all," said Mayor Dean L. Johnson. "The city has to be prepared to defend itself."

The federal statute that provides for the reimbursement of fees lets "plaintiffs that otherwise couldn't afford the substantial costs of litigation to bring lawsuits to vindicate their rights under the constitution or some federal statutes," said David Lubitz, an attorney with Swidler Berlin Shereff Friedman of Washington who is arguing the case for the ACLU.

The ACLU's fees to date include time spent working on the case by Lubitz, Sullivan and other attorneys, but does not include their expenses, which also could be billed to the city if the ACLU and NAACP win, Sullivan said. Lubitz said that if the city is ordered to pay his firm's fees, the firm will donate the money to the ACLU. In any case, he said, his firm will not bill the ACLU, NAACP or other plaintiffs.

Alderman Herbert H. McMillan, the Ward 5 Republican who sponsored the law that allows for the creation of drug-loitering-free zones in areas with three or more drug-related arrests during a two-year period, questioned the costs the ACLU has accrued.

"If the law is patently unconstitutional why do they have to spend so much money to take it down?" he asked.

"The ACLU generally doesn't have cases it can win on the merits," he said. "Since it can't win in the courtroom, it tries to win through the checkbook by bankrupting small cities into submission."

But Sullivan said it is unfair to portray the lawsuit in David vs. Goliath terms. Estrada's firm, which is working for the city, is one of the premier Washington litigation firms, Sullivan said.

"It's more like Goliath vs. Goliath," he said. "It is hardly a case where the mighty civil rights group is going after the poor city of Annapolis."

The ACLU has argued that the law - aimed at curbing open-air drug dealing - could encroach on citizens' First Amendment rights to free expression and free assembly. It allows police officers to approach and "move along" people in "drug-loitering-free zones" who exhibit behaviors that raise the suspicion of drug-dealing; police can arrest people who do not comply with the "move along" order.

The city council has designated eight "drug-loitering-free zones" in four neighborhoods - three of which are predominantly black - but is not enforcing the law pending the outcome of the lawsuit.

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