East Syracuse ‘Disruptive Conduct’ Law

Barrie Gewanter Statement to East Syracuse Village Board of Trustees July 21, 2008 — I stand before you again as a representative of the NYCLU, the state affiliate of the ACLU. I spoke to you last on June 2nd when you first considered the proposed disruptive conduct ordinance and the proposed revisions to your existing teen curfew. Since then we have had several conversations with Village Attorney Germain and at least one conversation with Mayor Liedka. I am pleased to say that those conversations were cordial and constructive. As a result of these discussions some significant changes were made in the original language in the disruptive conduct law, especially to articulate the due process rights of landlords and tenants. However, today I must still state our continued opposition to both proposals. We still feel that these two laws remain constitutionally flawed and are unjustifiably burdensome on tenants and local youth. Accordingly we ask you to consider our remaining concerns, and to vote “No” on both proposals. 1. The Disruptive Conduct Law

• The definition of “disruptive conduct” is still vague, and the law bestows too much discretion on police to determine that disruptive conduct has occurred and that it merits an official report with serious consequences for tenants of a rental property. This procedure also seems quite open to manipulation and abuse by angry or hostile neighbors or estranged spouses who file repeated complaints. I understand that the village police plan to review each report before it is made official, but this check and balance is not yet encoded in the language of the law.
• The proposal states that police may file a report when the conduct rises to no more than the level of a violation. Violations do no constitute criminal behavior. Absent a pattern of criminal behavior in a rental property, the government should not try to force a landlord to commence something as serious as an eviction. This is a very severe penalty that other municipalities only pursue when there is a pattern of serious criminality or illegal trade on the premises.
• This proposal continues to hold both the landlord and the tenant responsible for behavior that they may not have any control over. Landlords should not be required to regulate the private personal behavior of their tenants. A lease establishes a business relationship between landlord and tenant, not a regulatory or parental one. Tenants who may be dealing with an abusive spouse or a rebellious teen may have little control of the timing or volume of private disagreements with such parties. Tenants in such circumstances may need some assistance from government agencies, but a government-mandated eviction from their home could create even more dire consequences and disruption for families going through difficult times.

2. Very little has changed in the proposed revisions to the teen curfew. Several aspects of this are troubling from a constitutional standpoint and from the perspective of public policy.

• Generally, we object to a law that allows police to place youth in custody even if they are doing nothing that would amount to even a misdemeanor or violation.
• Youth have a right to be out on the streets with parental permission if they are not misbehaving or causing others harm or annoyance.
• The current version of the law retains the automatic placement of youth under the age of 16 under the supervision of the probation department as a “Person in Need of Supervision” also known as PINS. No youth should be put under the jurisdiction of the criminal justice system if they have not done anything that would amount to even a misdemeanor or violation.
• The law still mandates jail time for 16 and 17 year olds caught being out after curfew hours, even with parental permission and absent any criminal behavior. This is highly inappropriate. You may have increased the curfew hours for 16 and 17 year olds by 1 hour, but this is still unreasonable, especially on the weekend and during the summer months.
• The younger teens should still be able to be out after 10 p.m. if they have parental permission and as long as they are peaceful and under control. It is up to parents to decide what is appropriate for their children. The government should not attempt to supersede, judge or regulate parental decision making unless there is clear evidence of abuse or neglect.
• There is still no clear finding that the changes proposed to this law are related to a specific problem that creates a danger or harm for these specific age groups at the specific curfew times, or that the restrictions imposed on these teens are designed primarily to benefit them. Instead this law seems designed to benefit and address concerns of other residents of the village, and as such, the constitutionality of the restrictions are suspect. The courts have been clear on this. You can’t impose such restrictions on youth unless you are addressing a problem that affects them and instituting changes that will primarily benefit them. Should we receive a complaint about the application of this law, we would consider a constitutional challenge.

I understand that you will vote on these proposals tonight. I ask you to consider our concerns before you cast your vote. In particular I would like you to consider whether putting the provisions of these laws in place is really the best way to address the concerns about the quality of life in this village. These proposals may be popular and may make it seem like you have “done something,” but they are not only legally problematic, they are bad public policy. I urge you to seek alternative directions and other solutions.
 
Laws Proposed in East Syracuse May Violate Constitution, NYCLU Says June 2, 2008 — The Central New York Chapter of the New York Civil Liberties Union raised objections to two laws on tonight’s East Syracuse Board of Trustees agenda. One proposal would turn landlords into de facto prosecutors by forcing them to evict tenants based on nuisance allegations. The second would extend a youth curfew to 16 and 17 year olds and impose unnecessarily punitive fines and jail time. “Both proposals are constitutionally flawed and unjustifiably burdensome,” said Barrie Gewanter, director of the chapter. The proposed disruptive conduct law would force landlords to act as prosecutors for the village. They would be expected to move to evict their tenants after receiving copies of three “disruptive conduct” reports from the Village Codes Enforcement Department. The law would require police to file these reports when they respond to a rental location, even though behavior that may be labeled as “disruptive conduct” is not clearly defined, leaving too much discretion in the hands of individual officers. “Tenants would not get notice or even an opportunity to defend themselves before facing eviction,” Gewanter said. “Landlords already have a means to get rid of tenants who violate their lease through a pattern of criminal behavior. Police can already make arrests for disorderly conduct and disturbing the police. This law is an invitation for selective enforcement and violates the very definition of due process.” A proposed revision to the local curfew law, extending it to 16 and 17 year olds, is similarly flawed. The new law would infringe on the long-recognized rights of parents to direct the upbringing of their children. There is no exception for children who engage in evening activities with the permission of their parents, and the law would again allow police broad discretion to determine when a violation has occurred. The law would also violate the First Amendment by requiring youth to carry signed and dated permission slips to engage in constitutionally protected activity such as attending a school board meeting. The new law would impose monetary fines on youth and mandate jail time up to 30 days for multiple violations of the curfew. “City leaders must strive to strike a balance between protecting the public and preserving our fundamental rights,” Gewanter said. “Local governments should strive to improve public safety, but not by infringing on the constitutional rights of youth or passing judgment on parental decision making.” Gewanter – who has begun a dialogue with the city attorney and will continue to urge the village mayor and trustees to reconsider the provisions of these two proposals – will deliver copies of a letter that outlines the NYCLU’s concerns at the meeting tonight. Copies of this letter are also available through the chapter office.
 
Barrie Gewanter Statement to East Syracuse Village Board of Trustees on the so-called “Disruptive Conduct” Law June 2, 2008 1. I represent the NYCLU, the state affiliate of the ACLU. We have members throughout the Central New York area, including more than a few who reside in East Syracuse. 2. I stand here today to deliver these letters and to state our strong opposition to proposed Local Laws Number Two and Four of 2008, currently before this board. Both proposed laws are constitutionally flawed and are unjustifiably burdensome on both tenants and local youth. 3. We initiated one conversation so far with Mr. Germaine, the village attorney, and he seems open to a constructive dialogue about our concerns. I urge you to join in this dialogue and to hold off on any vote on these measures until there has been full consideration of the constitutional issues involved, and further public discussion of revisions that may bring the two proposals closer in line with constitutional principles. Until this occurs we urge you to vote “no” on both proposals as written. 4. The so-called “disruptive conduct” law is somewhat novel. I understand that the problems you face in the village may call for active and creative solutions. However in the current language:

• The relationship between a tenant and a landlord is a private business relationship. Absent a pattern of criminal behavior by the tenant or in their home, the government has no role to interfere in that relationship. Other municipal laws that require a landlord to evict are based on the existence of criminality or an illegal trade or business on the premises.
• The definition of disruptive conduct is too vague. Therefore a tenant and their landlord should be able to challenge the report of such conduct before they face the potential of eviction.
• Tenants are not provided with either notice or an opportunity to contest each disruptive conduct accusation. Due process requires notice and the opportunity for a hearing related to government interference with a protected property interest, such as a residential lease.
• Provisions of the current draft create unfettered discretion for police to find disruptive conduct by village residents.
• The proposed law also imposes harsher penalties for violations than is allowed by New York law.
• The draft ordinance places undue responsibility on landlords to regulate the conduct of their tenants. East Syracuse cannot force landlords to police its neighborhoods and run undesirable residents out of town.

5. The changes to the existing curfew proposed today are unnecessarily punitive towards youth and interfere with a parent’s right to direct the upbringing of their children, especially as they transition into legal adulthood.

• A 10 p.m. curfew is an unreasonable limitation on youth who may have parental permission to study at a friend’s house, attend a concert in Syracuse, go out on a date or see a late movie.
• The government has no business imposing any standard of parental responsibility or determining what is “effective parenting.” By doing so, the proposed changes in the curfew law deprive parents of the authority to raise their children as they see fit. It is well-settled in law that parents have a due process right to do so. There is no objective test. Absent evidence of legally defined abuse or neglect the government has no business judging or dictating what parents should do or not do, or punishing them for parental choices.
• Moreover, the requirement that minors carry a signed, dated written document from their parents in order to go on errands or — more importantly — to engage in “First Amendment activity” is unreasonably onerous. Such regulation of First Amendment activity is itself impermissibly vague and nullifies youths’ right to anonymous speech.
• It is also unreasonable to eliminate the curfew’s former exceptions for events sponsored by schools or civic organizations.
• The curfew imposes harsher penalties on both minors and parents than are allowed by New York law.

6. We understand that the East Syracuse Board of Trustees may vote on one of these proposed laws tonight. We therefore respectfully request that you table this vote or vote down the ordinance in its current form so that it may be brought in line with constitutional requirements. We ask that before you act, you give time for full consideration and dialogue about the constitutional issues and informed input from the public in a democratic process.