Aggressive Solicitation: selective enforcement

This was a formerly unpublished blog from my first term in office.  Since both Don and Paul are running this year for other offices, I decided to publish it now. 

While I was working hard in 2006 and 7 to decriminalize poverty, othere were doubling down and not willing to be concerned about unfair and biased enforcement. 

There was another aspect of the speeches made by my colleagues who are supportive of the Remington/Ostrow amendment to further criminalize panhandling which I found distrubing. CMs Paul Ostrow and Don Samuels both, in different ways, stated that the proposed ordinance was going to be selectively enforced but concluded that that's ok.

Here's CM Ostrow:

“There’s a longstanding doctrine of prosecutorial discretion, and in every single law that’s ever been written, there are circumstances where the prosecutor and the police can say: ‘this is not an appropriate situation to apply the ordinance.’ So while I think that Council Member Gordon has pointed out some questions about where, perhaps, one might apply this ordinance, I don’t think, in the real world, that those are going to create real challenges in terms of the application of this ordinance. I think to some extent we do – the best of ordinances unreasonably applied are unreasonable. And I think we at some point have to have some faith that the ordinances we pass will in fact be reasonably applied, and I think that should go for this particular ordinance as well.”

We must understand that Council Member Ostrow’s “prosecutorial discretion” is code for selective enforcement. The message is very clear: don’t worry. If you’re white, if you look like you have money, if you have a home, if you’re middle-aged, this ordinance will not be used against you. No one will advocate arresting you for violating this ordinance if you need spare change for a meter. If you’re a candidate for office and you violate this ordinance, you won’t be arrested. We all know who this ordinance is designed to target: people without homes, people without money, people addicted to drugs or alcohol, people with mental illness, people of color. People who look scruffy. This is the “reasonableness” that Ostrow is talking about. “Reasonable” police officers and prosecutors know that my mother-in-law, though she is breaking the letter of the law, is not the kind of person the law was intended to target, and therefore it would be “unreasonable” to enforce it against her. This is selective enforcement, this is profiling based on race and class, and this is both morally wrong and bad public policy.

CM Samuels spoke of our "squeamishness" to pass laws that we know will be enforced against the have-nots, the poor, the homeless, the black. But he exhorted us to get over this squeamishness and pass laws that we know are intended to be selectively enforced, because we must "incentivize" those who are panhandling now to participate in our outreach programs.

I believe that when we pass laws making certain acts illegal, we must be very clear that the act itself is wrong, no matter who is engaging in it.

I believe that the Council did a good job meeting that standard with the existing Aggressive Solicitation ordinance. Badgering and intimidating someone for money is a destructive act. Swearing and berating people who refuse to give money is wrong. People who are in a line, a sidewalk cafe, a crosswalk or an ATM can't get away, and shouldn't be targeted for solicitation. The City can defensibly state that the existing code criminalizes clearly bad acts, and we should expect equal enforcement across the board.

The proposed ordinance does not meet this standard, and Ostrow and Samuels' speeches asking us to trust that the police and prosecutors will be "reasonable" in exercising their "prosecutorial discretion," and exhorting us to get over the squeamishness we may feel about enacting laws that are intended to be selectively enforced make this perfectly clear.

So don't worry, middle class homeowners. This law is not intended to be used on you. It's for those other kinds of people, you know who. The poor, the homeless, the scruffy, the nonwhite, the "creeps."

Race and class-based profiling isn't a few bad apples. It comes right down from the top.