Why Repeal the "Lurking" Law?

I am working to repeal Minneapolis’ “lurking” ordinance for four reasons:

1) It is poorly crafted,

2) It is unnecessary,  

3) It is ineffective,

4) It contributes to racial and economic disparities and injustice.

Here is the law, in its entirety:

“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.”

Find more detail on my reasons to repeal the lurking ordinance below the fold.

It is a bad law.

I believe that a good law is one that prohibits behavior that is demonstrably harmful to the health and well-being of people or infringes on their rights to peacefully enjoy their lives. This law criminalizes thought and intentions and requires no actually harmful behavior to occur. No infringement or harm needs to be done to any person or any property for a crime to be committed.

A more significant flaw, however, is found in how overly vague it is. A good law ought to be clear enough to provide notice to everyone about what exactly is prohibited and guidance to police officers, complainants, prosecutors and juries, so as to prevent arbitrary or discriminatory enforcement practices. This ordinance offers little to no direction to police or the general public on how to remain lawful.  Nor does it offer any guidance about how to infer intent, even if one believed that bad intentions should be illegal.  It requires police and others to guess what a person is planning to do without providing any basis for making that determination.

The law is likely unconstitutional because it is so vague, because it attempts to control thought and because it fails to provide for equal protection to all groups of people. 

It is not needed.

Of the 100 largest cities in the United States only two, Minneapolis and Grand Rapids MI, have stand-alone laws that prohibit lurking with intent to commit a crime.  Ninety-one of the 100 cities have no lurking law whatsoever. Two of the 100 cities (St. Paul and Richmond) prohibit lurking within a larger loitering ordinance and five (San Francisco, Sacramento, Stockton, Las Vegas and North Las Vegas,) prohibit it while carrying a concealed weapon.  The vast majority of U.S. cities have proven that there are other strategies for addressing the public safety and nuisance concerns that are most often used to justify our lurking law. 

While most cities have found ways to fight crime without a lurking-with-intent law, because we have had our law on the books for so many years, some people still argue that the police need it to arrest people who are engaged in or attempting to engage in other more serious crimes like theft, invasion of privacy (peeping), and burglary. But for many, if not all of these cases, there are alternative laws that could apply. For example, Minnesota Statute 609.746, Interference with Privacy is usually used against peepers, and Minnesota Statute 609.546, Tampering with Motor Vehicle, can be used in the situations where a person is attempting to open car doors.

We also have several Minneapolis ordinances related to trespassing (385.20, 385.325 and 385.380), and loitering (285.50) that provide alternative tools for police in a variety of situations.

It is also important to remember that if police see something, or hear something that gives them “probable cause” or “articulable suspicion” they can investigate further. Police 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.  Additionally, they can hold and detain someone for if they have probable cause to investigate to see if a crime has been committed.  There are also already laws against attempted crimes, such as robbery or burglary.

It is ineffective.

I am also concerned about the lurking law because I think it is an unwise use of public resources and leads us to believe we have a good tool for not only holding criminals accountable but also for addressing so-called livability or nuisance issues when, in fact, we are only be managing them temporarily on the surface and creating bigger problems for individuals and the community in the long run.

One indication that the lurking law is ineffective is that the charges are usually dropped or dismissed.  In a 2006, for example, only 25% of arrests actually led to a conviction. 

In 2014 there were 65 citations issued for lurking.  Of those cases, 4 are still open.  Of the 61 that have been closed, 35 were declined or dismissed by City Attorney's Office, 14 defendants pled guilty to lurking, 8 defendants pled guilty to another crime and had the lurking citation dismissed as part of a plea agreement, 2 cases were dismissed by the Court, one case was continued without prosecution, and 1 case was dismissed because the defendant was deemed not competent to stand trial.  Overall, 22% of lurking citations in 2014 resulted in a “lurking” conviction, 12% were dismissed as part of a plea, and 58% were dismissed or declined.  None were brought to trial.

There are in fact, much more effective, efficient and affordable ways to address nuisance conditions that do not deplete use of costly police, court and jail resources.

One report, released by the Council on Crime and Justice in 2006, “Reducing Racial Disparity While Enhancing Public Safety,” recommended an approach to addressing the problems of “livability” crimes that relies more on “multi-pronged strategies to address low level offenses thereby reducing the ineffective over-reliance on the criminal justice system.” It called for “community based problem solving strategies at identified hotspots.”

This is a strategy that has been used in many places, including Minneapolis. The City has developed a number of promising approaches based on a more holistic community-oriented philosophy that reinforces the effectiveness of this approach. These three initiatives illustrate alternative approaches.

1. The use of street outreach workers to respond to concerns about potentially homeless individuals. Our approach to potentially homeless people a decade ago was very different.  Police would go and roust a person, potentially arrest them and move them through the system, often on charges of lurking, or trespassing, or camping illegally.  Now, when there is a call about a potentially homeless person, a trained outreach worker accompanies the police, accesses the needs of the individual and helps the person find services. Generally an arrest is avoided.  

2. The use of Youth Workers, or Youth Development Specialists, hired and trained through the Youth Coordinating Board with funding from the city, schools and the downtown improvement district.  This program started when the Minneapolis Public Schools moved to giving a metro pass/ “go to card” to all high school students and concerns were raised about youth being downtown, especially after school.  The program has continued, been expanded in the summer and now we have youth workers in some high schools. The workers respond to concerns and help to proactively redirect and engage youth in positive activities who might otherwise be viewed as a nuisance or problem to local businesses, residents and each other and be at risk for police intervention and arrest.

3. Another approach that has seen some success is the Downtown 100 program.  This program identifies the people who most frequently get involved with the police and courts for low level offenses. The City, County and services providers cooperate to provide these people services to address the underlying concerns or needs like housing, health care, employment or education. 

The lurking law is a much less effective way of dealing with livability concerns than the many available alternatives, and what can be accomplished though holistic, multi-pronged community-oriented efforts.  

It is unjust.

The most important concern I have with our lurking ordinance is that it plays a role in the racial and economic disparities we see in our criminal justice system and to the larger disparities we see in health, educational attainment, employment, wealth and other areas.

Its connection to a structurally racist criminal justices system has been recognized for at least a decade.  Even before I took office in 2006 the lurking ordinance had been reviewed and recommended for repeal or reform on several occasions.

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 2006, the Council on Crime and Justice report, “Reducing Racial Disparity While Enhancing Public Safety,” examined the complex, sometimes subtle and often far reaching effects of racial discrimination in the criminal justice system. Lurking is 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.  

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 was four times more likely to be charged with “lurking” than a non-African American, and an American Indian was three times more likely.  Someone experiencing homelessness was fifteen times more likely to be charged with “lurking” than someone with housing.

Since then, a national consensus has been forming on the need to dismantle the institutionalized racism that is imbedded in our criminal justice system.  In 2010, Michelle Alexander’s groundbreaking book made the case that the unfair mass incarceration of African Americans, especially males, is intrinsically connected to police and prosecutorial practices at the local level and that police stops based on low level offenses, like lurking, provide the gateway into a system that serves to dispossess an entire segment of our communities.

She summarizes her thesis as follows:

“In the era of colorblindness, it is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion, and social contempt. So we don’t. Rather than rely on race, we use our criminal justice system to label people of color “criminals” and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination—employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service—are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it.”

― Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness

Recent outcomes of lurking arrests continue to show racial disparities. Between 2009 and 2014, over two-thirds of the people arrested or cited for lurking in Minneapolis were people of color:  59 percent were Black, 8 percent were American Indian, 1 percent were Asian, 6 percent were “other” and 24 percent were White.

While most of the Lurking arrests do not result in convictions, fines or jail time, they can and do have more lasting consequences for those who are arrested.  These arrests can be discovered during background checks and can often make it harder for people to find housing and employment.  In this way, this law has the effect of perpetuating and institutionalizing racial and economic disparities.  This law is a striking example of a policing strategy that reinforces structural racism that is deeply embedded in our criminal justice system and compounds existing racial and economic inequities.

To help understand this better, I offer the State Health Department (in Advancing Health Equity in Minnesota: Report to the Legislature, February 1, 2014, Commissioner’s Office, Minnesota Department of Health) explanation of structural racism:

"Structural racism is the normalization of an array of dynamics — historical, cultural, institutional and interpersonal — that routinely advantage white people while producing cumulative and chronic adverse outcomes for people of color and American Indians. Structural racism is deeply embedded in American society and is a potent factor leading to inequities in all major indicators of success and wellness. Structural racism is perpetuated when decisions are made without accounting for how they might benefit one population more than another, or when cultural knowledge, history and locally-generated approaches are excluded. When this happens, programs and policies can reinforce or compound existing race-based inequities."

As a City Council Member and lawmaker working in 2015, I believe that I have an obligation to consider the larger historical, institutional and cultural context as I work to make, amend and repeal laws. I need to account for how past and current decisions benefit or harm certain segments of our population.  When it is clear that some laws and policies reinforce historic and existing inequities I will work to change that.

Additionally, I fear that if we do not do more to dismantle biased policies like this and address the injustices in our system we will further erode the trust people have in their government and their police. In many ways we now have two Minneapolises: one Minneapolis for the more affluent and predominately white where the government and police are trusted allies in the effort to solve problems; and the other Minneapolis for the predominately nonwhite and poor, where government and the police are too often something to be feared and are too often indifferent to the needs and interests of the people.

Minneapolis can be a leader in the nation in addressing this.  We can demonstrate to the world how a large urban city can disentangle itself from the insidious, tenacious tentacles of structural racism that infects us at all levels of government and society.   Rather than continue to be party to the systematic disenfranchisement of so many of our most valuable citizens let us unite to confront and dismantle the New Jim Crow in Minneapolis.  Let the repeal of this poorly crafted, overly vague, unnecessary and ineffective law be one small step towards the more just city we all seek.  And let it bring us one step closer to tackling the root causes of crime; and improving the community’s trust and confidence in their government.

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Appendix 1

This effort is supported by:

·         The Coalition for Critical Change

·         Black Lives Matter Minneapolis

·         Neighborhoods Organizing for Change

·         The Council on Crime and Justice

·         The Minnesota Black Lawyers Association

·         Communities United Against Police Brutality

·         The National Law Center on Homelessness and Poverty

·         The Legal Rights Center

·         The Advocates for Human Rights

·         The American Civil Liberties Union

·         Jewish Community Action

·         Minnesota Coalition for the Homeless

·         Neighborhood Hub

·         Minneapolis NAACP

·         Congressman Keith Ellison

·         The University of St. Thomas School of Law Community Justice Project

·         The Minnesota Association of Criminal Defense Lawyers