Appeal by city not likely

5 council members are expected to favor end to loiter-law fight

Struck down in court

McMillan urges support for ordinance, says city could win


April 03, 2001|By Amanda J. Crawford | Amanda J. Crawford,SUN STAFF

Annapolis' fight to preserve its anti-loitering law - struck down Friday by a federal judge as unconstitutional - is likely to end without the city filing an appeal.

Five city council members - the required majority - are expected to vote against appealing the ruling of Judge Catherine C. Blake in U.S. District Court in Baltimore. That includes Alderman Joseph Sachs, a Republican from Ward 4 who initially voted in favor of the law, aimed at curbing open-air drug markets. The law passed the city council, 5-4, in October 1999.

"I don't think we should spend any more money in that direction," said Sachs, chairman of the council's finance committee. "We have a judge who has issued a ruling. If we are going to spend more money, we should spend more money trying to eradicate drugs, not fighting more lawsuits."

Sachs said yesterday that he voted for the measure because its sponsor - fellow Republican Alderman Herbert H. McMillan from Ward 5 - asked for his support.

Because the judge agreed with the arguments made by the American Civil Liberties Union, which filed a lawsuit on behalf of the Anne Arundel County branch of the National Association for the Advancement of Colored People and three city residents in February last year, Sachs said he is unwilling to take the chance of losing again on appeal.

"I have to say I think it would be inexcusable for a council member who voted for this law to back away from an appeal," said McMillan, who announced his candidacy for mayor last month.

City Attorney Paul Goetzke had always "made it clear to the council that an adverse ruling in the U.S. District Court was likely," McMillan said. "The city's legal strategy has always been predicated on success in the 4th U.S. Circuit Court [of Appeals]."

Sachs said he did not know that that was the city's strategy and said "fiscally, that is not a responsible way to go."

But McMillan argued that not filing an appeal, which he believes the city could win, is "legally and financially reckless."

The ACLU will petition the U.S. District Court to have the city pay its more than $220,000 in legal fees in the case, a practice allowed under federal law in constitutional questions. As of the first week in March, the city had paid about $34,000 to Funk & Bolton, a Baltimore law firm it retained to help fight the lawsuit. That figure does not include the free legal counsel received by the city from Miguel Estrada of the Washington law firm Gibson, Dunn & Crutcher, or the time of city staff.

"Quitting now is like leaving a card game with all your money on the table and you have a great hand," McMillan said.

Aldermen Ellen O. Moyer, Sheila M. Tolliver and Cynthia Carter, who voted against the law initially, said they would vote against an appeal. Alderman Samuel Gilmer, who was the other vote against the measure originally and is expected to oppose an appeal, said yesterday that he agreed with Blake's decision. Of those who voted in favor of the law, Aldermen Louise Hammond said she would probably support an appeal, and Alderman Michael W. Fox and Mayor Dean L. Johnson said they would make their decision after consulting with the city's lawyers, who are expected to brief the council in the next week.

The city has 30 days to appeal.

The law - which the city did not enforce pending the outcome of the case - allowed for the creation of drug-loitering-free zones, where individuals suspected of engaging in drug-related activity could be asked by police to move on and be arrested if they did not comply.

In her ruling, Blake said the law "criminalizes a substantial amount of protected activity" and could subject individuals participating in such legal activities as voter-registration drives to "move-on" orders from police.

She also said the law was vague and did not give citizens and police enough guidance as to what kind of activity was prohibited and could be used disproportionately against African-Americans and other minorities.

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