Nov 122012
 

(Cartoon by Owen Courreges)

Owen Courreges

Last week, another salvo in the seemingly never-ending battle between New Orleans and the U.S. Constitution was lobbed by Mayor Landrieu.  This time Landrieu has proposed an ordinance with its sights on Jackson Square, the iconic public space at the heart of the city.

Now technically the target isn’t actually the square, but the surrounding streets and sidewalks (i.e., public rights of way) that the city has come to dub the “Jackson Square Pedestrian Mall.”  Through Councilwoman Palmer, whose district includes the French Quarter, Landrieu has proposed an ordinance for the mall that would:  1) mandate “clear lanes;” and, 2) provide “closing times” between  1 a.m. and 5 a.m. to persons “stopping, standing, or loitering.”

Both parts of the proposed ordinance are problematic, but the latter is blatantly unconstitutional.  

To hear Landrieu spokesman Ryan Berni speak, though, the so-called “closure” law is nothing new: “We’re trying to create some laws that give a little bit of order and establish some common sense closing times of the pedestrian mall,” he told the Times-Picayune.  “Most public spaces have hours of operation. There are hours of operation at Duncan Plaza and the Public Gardens in Boston.”

Berni’s sleight-of-hand is about as adept as your average sixth round of beer pong.  Landrieu wants us to believe that this is nothing more than a park closure law, which are commonplace and have been upheld countless times against constitutional challenges in courts across the country.   But that’s not what’s at issue here.  Here, the rights-of-way surrounding Jackson Square are not parks, they’re roads and sidewalks.

More importantly, though, is the fact that this law doesn’t actually “close” the rights-of-way on Jackson Square.  Rather, it provides that people may enter them but only “for the purpose of traversing the area without stopping, standing, or loitering.”

You see the trick?  This law doesn’t even need to use the phrase “closing times.”  It would say the exact same thing if it simply read: “Stopping, standing and loitering is prohibited in the Jackson Square Pedestrian Mall between the hours of 1 a.m. and 5 a.m.”  Landrieu threw in this drivel about closing times to make it seem like a park closure ordinance, when it reality, it’s an anti-loitering law.

This is a key distinction, because while park closure laws have generally been upheld against constitutional challenges, anti-loitering laws have, like anti-vagrancy laws, generally been thrown out as brazen attempts by public officials to give virtually unfettered authority to the police to harass and arrest citizens, or rather “undesirables” innocent of any criminal conduct. This is why, in its 1982 decision in State v. Stilley, 416 So.2d 928, 929 (La. 1982), the Louisiana Supreme Court struck down a law against loitering within 600 feet of a polling station or absentee voting site during an election.

“[L]oiter does not have a precise meaning,” the Court noted.  “One can loiter by standing or walking.  Almost any citizen within a six hundred foot radius of a polling place or absentee voting site could be charged with loitering.  One walking to the polling place to vote could be accused of sauntering. “

Therefore, the Court concluded, “[t]here are too many versions of the word loitering for the term to define criminal conduct.”  The statute could be “enforced against almost anyone or no one” and was thus overbroad.

Now, Landireu’s ordinance contains one crucial wrinkle.  It provides that a person can only be cited or arrested for “stopping, standing, or loitering” in the public rights-of-way alongside Jackson Square between 1 a.m. and 5 a.m. only if they first disobey an order by a police officer “to immediately vacate the area.”  However, this doesn’t save the statute.

After the Stilley decision, the state actually amended the anti-loitering statute for polling places to attempt to cure the constitutional defects, including a requirement that written notice be given to vacate before a citizen could be changed.   However, the law still used the word “loitering.”  Thus, the Louisiana Supreme Court once again held the law unconstitutional, noting that a criminal statute may not “entirely depend on whether or not a policeman is annoyed.”   State v. Schirmer, 646 So.2d 890, 902-03 (La. 1994).

Councilwoman Palmer has argued that the aim of the “closing hours” is to provide time to clean up the streets and sidewalks, but this doesn’t hold water.  Traditionally, these streets and sidewalks have been cleaned near dawn, just after 5 a.m., and it doesn’t take anywhere in the neighborhood of four hours to accomplish this task.

This law is a pretext for violating the state and federal constitutions, which Palmer is no stranger to doing.  The city is already staring down damages from Palmer’s ridiculous ordinance targeting certain speech with “social, religious or political” content on Bourbon Street (an ordinance that Mayor Landrieu failed to veto).  If this passes, we can look forward to more damage awards in federal court that the city is incapable of paying.

The entire ordinance, however, is full of pretexts.  The Administration has argued that the aforementioned “clear lanes” law is merely a restatement of existing law requiring clear fire lanes, but if that’s the case, then why is Landrieu proposing a new law?  Landrieu doesn’t seem to realize that characterizing a proposed law as redundant is not an argument in its favor.

So why is Landrieu doing this?  The conventional wisdom is that he wants to “clean up” Jackson Square in advance of the Superbowl, and thus the primary goal here is to keep the homeless out, or rather the bums and the gutter-punks.  Some people earnestly believe that this is a noble goal.  However, this ordinance will not just impact those groups.  It will also impinge on the tarot card readers, the street performers and the artists.  Street performers will have little to no room to perform under the “clear lanes” rule, and the artists and tarot readers who often set up early or run late will risk being hassled.  The ordinance is a shotgun blast masquerading as a scalpel.  It’s only a matter of time before the innocent get nicked.

Mayor Landrieu was not elected to attack the city’s culture and its own citizens for the purpose of creating some fake, idealized caricature.  I don’t want the French Quarter to be sanitized and prepackaged for tourists.  I don’t want Jackson Square to be nothing more than flagstones and AstroTurf.  And most importantly, I don’t want to think of the Quarter as a veritable prison where our basic freedoms don’t apply.

I recently said that Mayor Landrieu had declared war on live music, but that was a pitiful understatement.  It’s far worse than I thought.  Mayor Landrieu has declared war on New Orleans itself, and if doesn’t stop it soon, we’ll all be collateral damage.

Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.

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  • Richard Williams

    Thanks to Cmbr Palmer and Mayor Landrieu for seeking to preserve the constitutional rights of law abiding citizens who deserve to visit The Jackson Square without harassment or living with the waste of those who cannot care for themselves. Common sense would dictate that these public areas be kept safe and peaceful for everyone- even if we have to give up napping in there between 4 am and dawn ! Richard Williams

    • owencourrges

      Richard,

      What on earth are you talking about? There is no constitutional right not to be bothered by vagrants. You’re conflating what you view as a good public policy with constitutional rights to try and flip this back on me, but it makes no sense. Constitutional rights are rights with respect to the government, not other private citizens.

      As I explained, this law is pretty clearly unconstitutional. The Louisiana Supreme Court plainly said “no anti-loitering laws,” and Mayor Landrieu is proposing an anti-loitering law to roust vagrants in Jackson Square at night. If we want to mitigate problems with the homeless sleeping in Jackson Square, there are other ways that aren’t unconstitutional. It’s disturbing that you would heap praise on Palmer and Landrieu for pursuing a path than runs afoul of the constitution and could easily place the city on the losing end of lawsuits.

  • littlewitch

    You obviously do not live in the French Quarter. The clear lanes ordinance covers only the hours between 1AM and 5AM. I have never seen tarot readers and artists out working during those hours. I live 3 blocks from Jackson Square. Please remember that this is also a residential area, the Pontalba apartments obviously surround the park so advocating for artists and Tarot readers to carry on through the late night is already backing a loser.

    I do not want to get into a quasi legal argument here I just want to say that when street people take over the park or the surrounding area of the park or the benches of the Moonwalk those areas are no longer “public” suddenly you are in the middle of these people who are sleeping under balconies and on park benches, “outdoor apartments” You are in their bedroom and their living rooms and they act like you are disturbing them even though you are trying to enjoy a “public space”, too.

    I think an ordinance that seeks to prevent homeless individuals from taking up residence day in day out, in public spaces is a reasonable one. Best of all it would be a good time for the city to use those hours to clean the area which we need and want over there.

    I love almost everybody, and I want to provide any help possible to street people but handing over the square and the moonwalk seemstoo extreme and denies the majority of visitors and locals the enjoyment of these historic spots and riverside views.

    Lets make sure our shelters are clean and safe and not humiliating for homeless but I do not see the wisdom of giving over a popular public area.

    • owencourrges

      littlewitch,

      >>You obviously do not live in the French Quarter.<>The clear lanes ordinance covers only the hours between 1AM and 5AM.<>Please remember that this is also a residential area, the Pontalba apartments obviously surround the park so advocating for artists and Tarot readers to carry on through the late night is already backing a loser.<>I do not want to get into a quasi legal argument here I just want to say that when street people take over the park or the surrounding area of the park or the benches of the Moonwalk those areas are no longer “public.”<<

      To the extent anybody is harassing you or otherwise actively trying to prevent you from enjoying a public space, there are other laws that can handle those situations. But the drive to create some "catch-all" law to allow police to cite or arrest anybody they want in cases where they can't identify any criminal conduct is unconstitutional and immoral. I don't care how bad the homeless problem is. You hit the nail on the head with respect to shelters being part of the solution, but violating the constitution should not be.

      • http://www.facebook.com/profile.php?id=504777879 Scott Wood

        Again I suggest that Owen heads on down to the Square with a lawn chair and hangs out from 1am – 5am and sees just how comfortable he is exercising his right to hang out in a public space. Make sure you get right up next to the tarot readers too. Maybe buy some heroin off of them. That’ll really help you understand what you’re getting riled up for.

        • Mr. Dingle

          I am an artist in Jackson Square and have spent literally hundreds of nights out there doing just that Scott. And I can firmly state that you are exaggerating the problem. Most of the tarot readers are harmless and many of them are very good people. I have never been assaulted, robbed, raped or pillaged in the square at night after hundreds of hours spent out there burning the midnight oil. You have a nightmare in your head that does not match reality.

        • Mr. Dingle

          I am an artist in Jackson Square and have spent literally hundreds of nights out there doing just that Scott. And I can firmly state that you are exaggerating the problem. Most of the tarot readers are harmless and many of them are very good people. I have never been assaulted, robbed, raped or pillaged in the square at night after hundreds of hours spent out there burning the midnight oil. You have a nightmare in your head that does not match reality.

  • Uptown Spyboy

    Can we change the word “loitering” to “chillin’ ” at least?

  • http://www.facebook.com/marilyn.milam Marilyn Milam

    The Jackson Square area is not a street, it is a pedestrian mall and vehicles, except for emergency vehicles and any necessary for cleanup, are not permitted, at least the last I heard. If you lived in the French Quarter you would understand that 4 hours IS NOT enough time to clean it properly.

    • owencourrges

      Marilyn,

      They are still streets and sidewalks and they are still public rights-of-way. The streets have been shut off to most vehicular traffic, but it’s still not the same, or really even similar to, a park. Even if a pedestrian mall were the same as a park, this isn’t a park closure ordinance for the reasons I described; it’s an anti-loitering law.

      As for the time for cleanup, the city does not spend four hours per day on that and never has. It wouldn’t be necessary, either. Not even the most intensively used public spaces (at least of similar size) require that much clean up time. I suppose a germophobe might want to see Jackson Square cleaned continuously for 12 hours a day by an army of custodians bearing bleach and toothbrushes, but in reality it’s enough to simply sweep up trash and other debris and hose it down, which doesn’t take anywhere near four hours.

  • Toby

    What bothers me is that I live in the Pontalba Building on St. Peter Street. If I walk out of my front door at night and stand in, what is for all intents and purposes, my front yard, are you telling me that the Police could potentially arrest me? What a load of bull!! Living on Jackson Square, I can tell you from personal experience that the people who spend the night near the Square almost always keep to themselves and have never bothered me.

  • http://twitter.com/lunanola uǝןɐʞ

    From the U.S. Supreme Court’s decision re: CITY OF CHICAGO V. JESUS MORALES, ET. AL. in 1999:

    Speaking for the Supreme Court majority in finding the ordinance unconstitutional and unenforceable, Justice John Paul Stevens held that “…the freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment.”

    http://supct.law.cornell.edu/supct/html/97-1121.ZS.html

    • http://www.facebook.com/profile.php?id=504777879 Scott Wood

      “For innocent purposes” is the key phrase there. Many of the people camping out at Jackson Square are dealing heroin and crack and meth and are complete nutjobs that assault unknowing passers by. It’s really too bad half the crowd spoiled it for the other half but they have and need to go.

      • http://twitter.com/lunanola uǝןɐʞ

        Loitering is not a crime; the same cannot be said for drug-dealing and assault. Does it not bother you that there are already existing laws in effect that would address the drug-dealing and assault issues you’ve noted which aren’t being enforced to the degree that would make the Square safer without implementing an inherently flawed (and potentially costly) ordinance?

  • http://www.facebook.com/profile.php?id=504777879 Scott Wood

    That’s ridiculous. It’s not a first amendment issue. If they want to camp out and protest, then they should file for a permit. Otherwise, move it along drug dealing tarot reader psychopaths. I support Mayor Landrieu and think he’s finally giving New Orleans what it needs: some common sense. If the people cannot govern their own actions then their actions must be governed. There is absolutely no reason for people to be camping out on Jackson Square every night creating an unsafe environment for tourists that don’t know any better. Locals know to avoid the Square at night so they don’t get mugged or knifed or caught in the middle of a sour heroin deal. Ask any 8th district cop how they feel about Jackson Square at night and they’ll tell you. I suggest Mr. Courreges bring a lawn chair down to St Ann and Chartres at 3am and sit a spell around 3am any morning and see how comfortable he feels exercising his right to sit there. I guarantee he’ll change his opinion on the matter. Grow up dude, you’re a damn lawyer, you need to be more responsible and get a grip on what you’re actually talking about.