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HomeMy WebLinkAboutAmend Chapter 13, by inclusion of Article 1, Entitled Gang Loitering regulations and Deleting Sections 13-55 and 13-56~ -~ ., ORDINANCE No. s3a~-o= Passed by the Common Council of the City of Soutlz Bend, Indiana August 26, Attest: Attest: Presented by me to the Mayor of the City of South Bend, Indiana August 27 20 02 City Clerk President of Common Council City Clerk Approved and signed by me August 28, 20 02 ~~~~ - ~A 20 02 Deputy Mayor/Acting Executive Ordinance No. ~ ~ ~0~ AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AMENDING CHAPTER 13, BY THE INCLUSION OF NEW ARTICLE 1, ENTITLED GANG LOITERING REGULATIONS AND DELETING SECTIONS 13-55 AND 13-56 OF THE SOUTH BEND MUNICIPAL CODE STATEMENT OF PURPOSE AND INTENT The Common Council of the City of South Bend, Indiana, acknowledges that on March 19, 2002, the Circuit Court of Cook County, Illinois, upheld the City of Chicago's gang loitering ordinance which had been passed by the Chicago City Council in February of 2000. That ordinance incorporates verbatim U.S. Supreme Court Justice O'Connor's definition of "gang loitering" which was set forth in City of Chicago v. Morales, 119 S.Ct. 1849 (1999) when the initial Chicago gang loitering ordinance was held to be unconstitutional under the vagueness doctrine on June 10, 1999, by a 6-3 decision. The new Chicago gang loitering ordinance authorized the Superintendent of Police to designate areas of the City for enforcement of the ordinance. Such designation followed in depth discussions with residents and groups within neighborhoods who were knowledgeable about the effects of gangs, guns and drugs in particular areas of Chicago. Loitering by criminal gang members was determined to create a justifiable fear for safety of persons and property because of such violence. The Chicago City Council concluded that aggressive action was necessary in order to preserve the streets and other public places so that the general public would be able to use such places without fear. The Council found that such loitering is often associated with trafficking in narcotics and controlled substances which intimidates law-abiding citizens, diminishes the value of adjoining property, and has the potential to destabilize communities and attract violent activities The Chicago gang loitering ordinance that was upheld as being constitutional also incorporated Justice Steven's plurality reasoning as to criminal purpose and the standards for police enforcement as to the purpose of the redrafted ordinance. As a result, the fatal errors in the initial ordinance of giving "too much discretion to the police and too little notice to citizens who wish to use public streets" were corrected. The right to loiter for innocent purposes was therefore protected under substantive due process provisions of the Constitution. The provisions of this ordinance are closely patterned after the gang loitering ordinance upheld as being constitutional in March of 2002 in Chicago. It is the result of meticulous and methodical research, discussions, and many public meetings held over the past four (4) years. Representatives from the City of South Bend including our Police Chief and the four (4) Regional Commanders of the Police Department, the Police Department attorney, a representative for Neighborhood Planning, a Council Member and the Council Attorney met in Chicago on August 13, 2002, with representatives of the Chicago Police Department and the General Counsels Office to see firsthand their operations. The South Bend Common Council acknowledges that street disorder continues to be a topic of concern in many American cities, including South Bend. Police departments, mayors, city councils and prosecutors continue to face an increased demand for action on panhandling, graffiti, camping in urban parks, sidewalk interference, excessive noise, public urination, street drug and prostitution markets and loitering". In recent years, gang loitering and narcotics-related loitering have further challenged the fragile threads which hold many of our neighborhoods together. The many forms of gang loitering have resulted in the quality of life in our city and specifically in our neighborhoods, being compromised by such disruptive activities. 2002 South Bend Gang Loitering Ordinance--Substitute Bill No. 42-02 Page 2 Gang loitering is one of the prime street disorder problems in our city, and if left unresolved, may directly result in loss of population, in businesses leaving for suburban areas, and may jeopardize the city's economic viability to operate effectively and efficiently as a municipality. In order to propose constitutional and reasonable local regulations, and as a means to implement proper response strategies to address the problems of the many forms of gang loitering, the South Bend Common Council, in conjunction with Indiana University South Bend, SPEA Program, jointly sponsored three (3) conferences on loitering beginning in 1999. Community representatives from the City of Chicago, Illinois; the City of Seattle, Washington; legal scholars, neighborhood representatives, residents, members of law enforcement from communities from northern Indiana and southern Michigan came together and discussed the many aspects of different types of loitering. By focusing on solving these problems in partnership with the stakeholders of our community, namely the residents, business owners, police, social service providers, and neighborhood leaders, the Common Council has determined that realistic and constitutional goals and objectives can be established. This ordinance is timely and appropriate since many of the current city ordinances were passed prior to 1962 and are insufficient to address the aforementioned problems. Current local ordinances are inadequate to deal with problems posed by gang loitering and loitering as a means to facilitate trafficking in narcotics and controlled substances. The recommended regulations are neither overbroad nor vague, and are narrowly tailored to serve significant governmental interests. The ordinance is not vague since it gives individuals a reasonable opportunity to know what is prohibited, it limits the discretion of law enforcement when enforcing its provision so that such enforcement will not be arbitrary or discriminatory, and it does not inhibit individuals of exercising their constitutional rights of lawful assembly. The regulations will add significantly to the ability of the City of South Bend to maintain order in residential neighborhoods and other areas of the city by setting appropriate standards for behavior. It is believed that the passage of this ordinance would be in the best interests of our City by strengthening the provisions which address health, public safety and general welfare concerns. aPLObU, $G~j~i`~~OrB, ~~ it Or~~ItC~~ by the Common Council of the City of South Bend, Indiana, as follows: Section I. Chapter 13, Article 1, of the South Bend Municipal Code is hereby amended to read in its entirety as follows: ARTICLE I. GANG LOITERING REGULATIONS. Sec. 13-1. Legislative Findings and Intent. The Common Council of the City of South Bend, Indiana, makes the following findings of fact: 1. Quality of life issues are of paramount importance, affecting not only the physical well-being and safety of the City of South Bend's residents, but are vital to revitalizing the central business district, the older commercial strips, and our residential neighborhoods which must be recognized as being safe, secure and civil public spaces. 2002 South Bend Gang Loitering Ordinance--Substitute Bill No. 42-02 Page 3 2. Persons who engage in unlawful conduct in public places harass and unduly interfere with the lawful use and enjoyment of such public places thereby constituting a danger to the public health and safety. 3. It is appropriate for the protection of the public safety and welfare to enact reasonable regulations to ensure that public safety is not jeopardized by acts of loitering when they are committed for the purpose of intimidation, coercion, harassment, menacing or assaultive conduct in violation of applicable law. 4. Loitering in public places by criminal street gang members creates a justifiable fear for the safety of persons and property in the area resulting from the high rates of drug-dealing, shootings and vandalism often associated with such activities which intimidate law-abiding citizens, diminishes the value of nearby property, and has the potential to destablilze communities and attract further violence. 5. The existence of such gang loitering is often accompanied by secondary effects that are detrimental to the public health, safety, morals and general welfare of the citizens of South Bend, Indiana. Such secondary effects include significant criminal activity and activities injurious to the public health, safety, morals and general welfare of the community, detrimental effects on nearby businesses and residential areas and a decline in property values. 6. Current ordinances are inadequate to deal with the problems posed by gang loitering and loitering as a means to facilitate trafficking in narcotics and controlled substances since many depend upon the willingness of civilians to testify against gang members and drug dealers with civilians being reluctant to put themselves in harms way by providing such testimony. 7. This ordinance is further intended to detect and discourage the involvement of gang activities, to prevent the exploitation of minors, to effectively deploy the City's limited law enforcement resources, to protect the public health, safety, morals and general welfare, and to assist law enforcement in the enforcement of loitering regulations when associated with the violation of controlled substance and alcoholic beverage laws, assaults, and breaches of the peace which negatively impact the quality of life in the neighborhoods where it is allowed to persist. It is not the intent of the City that this ordinance have either the purpose or effect of suppressing lawful assembly or speech activities protected by the federal or state constitutions. 2002 South Bend Gang Loitering Ordinance--Substitute Bill No. 42-02 Page 4 Sec. 13-2. Definitions. For the purposes of this Article, the following terms and phrases shall have the indicated meanings: a. "CRIMINAL GANG ACTIVITY" means the commission, attempted commission, or solicitation of the following offenses, provided that the offenses are committed by two (2) or more persons, or by an individual at the direction of, or in association with, any criminal street gang, with the specific intent to promote, further or assist in the criminal conduct by gang members any of the following sections of the Indiana Code : Title 35, Article 42 "Offenses Against the Person"; Title 35, Article 43 "Offenses Against Property"; Title 35, Article 44 "Offenses Against the Administration"; Title 35, Article 45 "Offenses against Public Health, Order and Decency"; Title 35, Article 46 Miscellaneous Offenses"; Title 35, Article 47 "Weapons and Instruments of Violence"; Title 35, Article 48 "Controlled Substances"; and Title 35, Article 49 "Obscenity and Pornography". b. "CRIMINAL STREET GANG" means any ongoing organization, association in fact or group of three (3) or more persons, whether formal or informal, having as one of its substantial activities the commission of one (1) or more of the criminal acts enumerated in paragraph a. of this section, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. c. "GANG LOITERING" means remaining in any one place under circumstances that would warrant a reasonable person to believe that the purpose or effect of that behavior is to enable a criminal street gang to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities d. "NARCOTICS-RELATED LOITERING" means remaining in any one place under circumstances that would warrant a reasonable person to believe that the purpose or effect of that behavior is to facilitate the distribution of substances in violation of Title 35, Article 48, "Controlled Substances" of the Indiana Code. e. "PATTERN OF CRIMINAL GANG ACTIVITY" means rivo (2) or more acts of criminal gang activity of which at least two (2) such acts were committed within five (5) years of each other. f. "PUBLIC PLACE" means the public way and any other location open to the public, whether publicly or privately owned. Sec. 13-3. Gang Loitering Prohibited. Whenever a police officer observes a member of a criminal street gang engaged in gang loitering with one or more other persons in any public place designated for the enforcement of this Article, the police officer shall, subject to all applicable procedures promulgated by the Chief of Police: 2002 South Bend Gang Loitering Ordinance-Substitute Bill No. 42-02 Page 5 a. Inform all such persons that they are engaged in gang loitering within an area in which loitering by groups containing criminal street gang members is prohibited; b. Order all such persons to disperse and remove themselves from within sight and hearing of the place at which the order was issued; and c. Inform those persons that they will be subject to penalties if they fail to obey the order promptly or engage in further gang loitering within sight or hearing of the place at which the order was issued during the next three (3) hours. Sec. 13-4. Narcotics-Related Loitering Prohibited. Whenever a police officer observes one or more persons engaged in narcotics-related loitering in any public place designated for the enforcement of this Article, the police officer shall: a. Inform all such persons that they are engaged in loitering within an area in which such loitering is prohibited; b. Order all such persons to disperse and remove themselves from within sight and hearing of the place at which the order was issued; and c. Inform those persons that they will be subject to penalties if they fail to obey the order promptly or engage in further narcotics-related loitering within sight or hearing of the place at which the order was issued during the next three (3) hours. Sec. 13-5. Areas Designated for Enforcement. a. The Chief of Police of the South Bend Police Department shall by written directive designate areas of the City of South Bend in which the Chief of Police has determined that enforcement of Section 13-3 is necessary because gang loitering has enabled criminal street gangs to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities. Prior to making a determination under this Section, the Chief of Police shall consult as he or she deems appropriate with persons who are knowledgeable about the effects of gang activity in areas in which the ordinance may be enforced. Such persons may include, but 2002 South Bend Gang Loitering Ordinance--Substitute Bill No. 42-OZ Page 6 need not be limited to members of the South Bend Police Department with special training or experience related to criminal street gangs, other personnel of that department with particular knowledge of gang activities in the proposed designated area; other law enforcement personnel with particular knowledge of gang activities in the proposed designated area(s); elected and appointed officials of the area; community-based organizations; residents of the area; and the Chairperson of the Common Council's Health and Public Safety Committee. The Chief of Police shall develop and implement procedures for the periodic review and update of designations made under this paragraph. b. The Chief of Police shall by written directive designate areas of the City of South Bend in which enforcement of Section 13-4 is necessary because the areas are frequently associated with narcotics-related loitering. Prior to making a determination under this Section, the Chief of Police shall consult as he or she deems appropriate with persons who are knowledgeable about the effects of narcotics-related activity in areas in which the ordinance may be enforced. Such persons may include, but need not be limited to, members of the South Bend Police Department with special training or experience related to narcotics-related activity; other personnel of that department with particular knowledge of narcotics-related activities; other law enforcement personnel with particular knowledge of narcotics-related activities in the proposed designated area(s); elected and appointed officials of the area; community-based organizations; and the Chairperson of the Common Council's Health and Public Safety Committee. The Chief of Police shall develop and implement procedures for the periodic review and update of designations made under this paragraph. c. The Chief of Police shall by written directive promulgate procedures to prevent the enforcement of this Article against persons who are engaged in collective advocacy activities that are protected by the Constitution of the United States or the State of Indiana. Sec. 13-6. Violations and Penalties. a. Gang Loitering Penalties: Any person who fails to obey promptly an order issued under Section 13-3 Gang Loitering Prohibited, or engages in further gang loitering within a sight or hearing of the place at which such an order was issued during the three-hour period following the time the order was issued, shall be issued a citation subjecting said person to a fine of not less than one hundred dollars ($ 100.00) for the first offense. A first time violator of Section 13-3 shall make payment through the Ordinance Violations Bureau. Failure to make payment within thirty i 2002 South Bend Gang Loitering Ordinance--Substitute Bill No. 42-02 Page 7 (30) days of the issuance of a citation shall result in the assessment of a late fee of fifty dollars ($50.00). A person committing a second offense which occurs within the same calendaz year shall subject the person to a fine of not less than two hundred fifty dollars ($ 250.00). All subsequent offenses occurring in that same calendaz year shall be subject to a fine of not less than five hundred dollars ($500.00) for each offense. In addition to or instead of the above penalties, any person who violates Section 13-3 may be required to perform community service of not less than eighty (80) hours as ordered by a Court of competent jurisdiction. b. Narcotics-Related Loitering Penalties: Any person who fails to obey promptly an order issued under Section 13-4 Narcotics-Related Loitering Prohibited, or who engages in further narcotics-related loitering within a sight or hearing of the place at which such an order was issued during the three-hour period following the time the order was issued, is subject to a fine of not less than one hundred dollars ($ 100.00) for the first offense. A first time violator of Section 13-4 shall make payment through the Ordinance Violations Bureau. Failure to make payment within thirty (30) days of the issuance of a citation shall result in the assessment of a late fee of fifty dollars ($50.00). A person committing a second offense which occurs within the same calendar year shall subject the person to a fine of not less than two hundred fifty dollars ($ 250.00). All subsequent offenses occurring in that same calendar yeaz shall be subject to a fine of not less than five hundred dollars ($500.00) for each offense. In addition to or instead of the above penalties, any person who violates Section 13-4 may be required to perform community service of not less than eighty (80) hours as ordered by a Court of competent jurisdiction. c. Injunctive Relief. Any person who has received two (2) or more citations under this Article shall be deemed to have caused a public nuisance. The City may file suit against that person in Circuit or Superior Count to enjoin the nuisance activity. Sec. 13-7. Loitering Which Obstructs Public Ways Prohibited-Penalties. a. Prohibited Activity: No person shall loiter or remain in a public place for the purpose of obstructing vehiculaz or pedestrian traffic which results in impeding the use of such public way. b. Any person who fails to promptly obey an order by a police officer to disperse shall be subject to a fine of not less than fifty dollars ($ 50.00) for the first offense. A second or subsequent offense which occurs within the same calendar year shall be subject to a fine of not less 2002 South Bend Gang Loitering Ordinance--Substitute Bill No. 42-02 Page 8 than one hundred dollars ($ 100.00). In addition to or instead of the above penalties, any person who violates this section may be required to perform community service of not less than forty (40) hours as order by a Court of competent jurisdiction. c. Any person issued a citation under this Section shall make payment through the C+rdinance Violations Bureau. Failure to make payment within thirty (30) days of the issuance of a citation for violating any provision of this Section shall result in the assessment of a late fee of twenty-five dollazs ($25.00). d. Injunctive Relief. Any person who has received two (2) or more citations under this section shall be deemed to have caused a public nuisance. The City may file suit against that person in Circuit or Superior Count to enjoin the nuisance activity. Section II. Chapter 13, Article 4, Section 13-55 of the South Bend Municipal Code entitled "Loitering; police order to disperse; penalty" is hereby deleted in its entirety. Section III. Chapter 13, Article 4, Section 13-56 of the South Bend Municipal Code entitled "Lying or sleeping in certain places prohibited; exception" is hereby deleted in its entirety. Section IV. Severability: If any part, section, paragraph, sentence, clause or phrase of this ordinance is for any reason declared to be unconstitutional or otherwise invalid by a Court of competent jurisdiction, the unconstitutionality or invalidity thereof shall not affect the validity of the remaining portions of this ordinance. Section V. Effective Date: This ordinance shall be in full force and effect, from and after its passage by the Common Council, approval by the Mayor, legal publication, with an effective date of January 1, 2003. ~R Member of the Common Co cil of t~ie~~rfior~Council 1st READING 6'~ ~,~Z bs~~,~ PUBLIC HEARING ~-L6~~Z ~`S Su 3 rd READING ~ _Zb -0'C o~S S ~-~~~~~~ NOT APPROVED REFERREDp ~ PASSED D'-Zb' a2 0.S -S'u-,0~~~''~~~ ~il~d in C4~rk's ~ffii~~ AUK ~ ~ ZQ02 LOFcTid J. DUD,! ~ COMMITTEE REPORT TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND: Your Committee of the Whole, to whom was referred: BILL NO. 42-02 A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AMENDING CHAPTER 13, BY THE INCLUSION OF NEW ARTICLE 1, ENTITLED GANG LOITERING REGULATIONS AND DELETING SECTIONS 13-55 AND 13-56 OF THE SOUTH BEND MUNICIPAL CODE Respectfully report that they have examined the matter and that in their opinion, this bill is being recommended to the full Council with a favorable recommendation as substituted. Karl King Chairman RECOMMENDED AMENDMENTS CONTAINED IN SUBSTITUTE BILL NO. 42-02 1. Amendments in q 4 and q 10 in the "Statement of Purpose and Intent" 2. § 13-3, q c. Delete "arrest" insert "penalties" 3. § 13-4, q c. Delete "arrest" insert "penalties" 4. § 13-6, insert new q c entitled "Injunctive Relief 5. § 13-7, insert new q c entitled "Injunctive Relief 6. Insert new Section IV entitled "Severability" 7. Insert "January 1, 2003" and delete "October 1, 2002" in § V entitled "Effective Date" August 21, 2002 Fl~~t~ ~ ~ ~r~o ~ ~~~l~~ c~tl~ 2 ~ 700?. LORETTI~ J. prJt3~ CITY CLEFS, ~. pg~£1,1~- -