More on our "lurking" ordinance

I want to take a moment to explain why I am proceeding with efforts to repeal Minneapolis’ “lurking” ordinance.

This is a small part of a larger effort to improve public safety practices in our City; to address the root causes of poverty, homelessness and crime; to promote fairness in our criminal justice system; to better respect and value diversity; and to improve confidence in our City’s public safety services.

Even before I took office the lurking ordinance had been reviewed and recommended for possible repeal or reform on several occasions.

In 2003 the Community Advisory Board on Homelessness recommended that “the City repeal its lurking and disorderly conduct ordinances, or amend them so that they give specific guidelines and criteria for illegal conduct.”

In November of 2004 the Council on Crime and Justice completed a report on “Low level Offenses in Minneapolis: An Analysis of Arrests and there Outcomes,” that found dramatic racial disparities in citations and arrests for lurking and high (nearly 80%) dismissal and acquittal rates.

In a Council Study Session in June of 2005 the findings of a City Task Force on the Decriminalization of Homelessness indicated that dismissal rates for lurking, loitering and trespass over 2003-2004 stood at 69%, and that dismissal rates for lurking were the highest of the three.

After I took office in 2006, I reviewed these reports. In May 2006, at my initiative, the City Council unanimously voted to remove its ordinance making it illegal to dance in the streets. It was clear that it had been used in discriminatory ways to target people with mental illness or suffering from homelessness.

In June of 2006 the Council on Crime and Justice published a report, “Reducing Racial Disparity While Enhancing Public Safety,” that examined the complex, sometimes subtle but often far reaching effects of racial discrimination in the criminal justice system. Lurking was again highlighted: “The racial disparity is larger for low level offenses where police officer discretion is greatest. In 2001 the equivalent of one out of four Black residents were cited for such low level offenses as disorderly conduct, loitering and lurking. For whites, the number was one in 60.” The report articulated the connection between arrest records (even when charges were dismissed or people were acquitted) and the long lasting barriers to employment and housing that can be created.

The report recommended a new approach to addressing the problems of “livability” crimes that relies on “multi-pronged strategies to address low level offenses thereby reducing the ineffective over-reliance on the criminal justice system.” It laid out a process for developing “community based problem solving strategies at identified hotspots,” working with schools and communities on intervention strategies and reforming the “tab charge” process.

· In December of 2006, the City/County plan to end homelessness was unanimously approved by both the City Council and the County Boards. It calls on us to evaluate and recommend changes to ordinances that are determined to discriminate against or criminalize homelessness. The Ten Year Plan to end homelessness points us in a new direction and calls for us to:

"Change the paradigm from managing homelessness to ending it, from funding programs to investing in the community, from serving people to partnering with people to achieve self-sufficiency…

“Eliminate panhandling and other livability issues through providing prevention and outreach services…

It was within this context I decided to take a closer look at our city ordinances.

It soon became apparently that of our low level offenses, “lurking” was the most unusual, ineffective, unnecessary and potentially discriminatory.

Here is our “lurking” ordinance: ”385.80. Lurking. No person, in any public or private place, shall lurk, lie in wait or be concealed with intent to commit any crime or unlawful act.”

On its face it is vague, unclear and there is little to no direction on how to infer intent.

While some see it as an effective tool, all of the evidence that I have seen leads me to believe that the “lurking” ordinance is not an effective law enforcement tool, overlaps with other applicable statutes and ordinances, and offers nothing but an opportunity for discriminatory enforcement.

Before I reached that decision I looked at some of the current information.

Even recently, the outcomes of lurking arrests show serious racial disparities. There were 167 people arrested or cited for “lurking” in the City of Minneapolis in 2006, 133 of these people, or more than 80%, were people of color. An African American is four times more likely to be charged with “lurking” than a non-African American, and an American Indian is three times more likely. Someone experiencing homelessness is fifteen times more likely to be charged with “lurking” than someone with adequate housing.

I believe that the “toolbox” of the Minneapolis Police Department includes enough useful tools. More than a third of those charged with “lurking” in 2006 were charged with another, more serious offense. I remain completely convinced that law enforcement officers have the legal right to stop and question a person they suspect of committing an actual crime. If an officer sees someone trying to open multiple car doors, for instance, this can constitute “articulable suspicion” that the person is attempting to violate statutes and ordinances ranging from Theft to Tampering with a Motor Vehicle. The same is true for every illegal act I have heard used as a reason to have “lurking” on the books. Additionally, the Supreme Court of Minnesota said, when upholding the Minneapolis “loitering” ordinance, that “‘lurking’ is not significantly different from ‘loitering’”.

“Lurking” has a very, very high dismissal rate. This means that very often when folks are charged with this crime, it does not carry consequences. The ordinance therefore has little to no deterrent effect in itself. It is a way to move someone out of a given area for a few hours, not any sort of long-term solution.

The Declaration of Independence, Constitution and Bill of Rights put a priority on individual liberty and I think make it clear that government should criminalize acts, not thoughts. I believe that the “lurking” ordinance crosses that line. Our police officers are highly competent professionals. I believe that they can appropriately develop articulable suspicion and probable cause to charge persons engaged in actual illegal activity with crimes that bring real consequences.

My philosophy is that we should put our resources into effective investigations and consequences for actual criminal activity that harms people and into preventing crime by addressing its root causes. The “lurking” ordinance is the clearest example of where too much time and money are being spent with little positive effect and potentially far reaching unintended negative effects. Resources that would be better invested in investigating real crimes and convicting real criminals as well as addressing root causes of crime and developing community based strategies are instead wasted on an ineffectual criminal justice “revolving door.”

Additionally, the use of the “lurking” ordinance has been waning in recent years. I believe this is an additional sign that it is ineffective and unnecessary. It is clear that most large cities also find it unnecessary. We are one of only four of the largest 100 cities in the nation with distinct “lurking” ordinances.

I believe it is time to repeal the “lurking” ordinance, and I am not alone. So far this effort is supported by the Barbara Schneider Foundation, The Minneapolis Urban League, The NAACP, Jewish Community Action, The Council on Black Minnesotans, The African American Men Project, MICAH/OPAAC, Office of the 5th Congressional District of Minnesota, American Immigrant Lawyers Association, Chicano Latino Affairs Council, Communities United Against Police Brutality, Community Justice Partners, Woman Planting Seeds, The Salvation Army Harbor Light Center, African American Family Services and St. Stephens Human Services.

I plan to bring this forward to the City Council on Friday March 30 to introduce the subject matter for referral to the Public Safety and Regulatory Services Committee for a public hearing and recommendation. In order for it to go to the Committee a majority of the Council Members must vote in favor of the subject introduction. Your support could be very helpful.

Minneapolis can be a national leader by following the lead provided by our Ending Homelessness report and the Council on Crime and Justice. We can create a system of community centered policing that deals effectively and constructively with the underlying causes of crime. We can address and attack the racism and discrimination that continue to plague society and we can (as our City Goals state) make our city “One Minneapolis” with “Equal Access, Equal Opportunity and, Equal Input” for everyone where “diversity will be welcome, respected and valued” and “all residents will have confidence in public safety services.”