WILMINGTON, NC (WECT) - The American Civil Liberties Union of North Carolina opposes an attempt by the city of Wilmington to ban gang members from public parks.
City Council is set to discuss the proposed ordinance Tuesday evening at its regular meeting. Police Chief Ralph Evangelous says the move is necessary as a preventative measure to keep parks safe. Evangelous says officers would have to validate individuals as gang members before taking this action.
In a letter to council members, ACLU Policy Director Sarah Preston writes that this move is not necessary.
"Everyone can certainly agree that keeping our communities safe is an important goal," Sarah Preston wrote. "However, Wilmington Police have tools at their disposal to fight actual criminal activity and the Proposed Ordinance may violate the freedom of association and invite profiling or other arbitrary enforcement."
Preston contends the ordinance would violate rights of citizens based on relationships and not on basis of criminal activity. The ACLU says there are laws dealing with gang activity on the North Carolina books now that should currently help the city.
The city would be the first local jurisdiction in the state to make such a move, according to the city attorney.
At a recent agenda briefing, some members expressed concern about the potential for profiling under the measure.
The ACLU will have a representative at tonight's meeting.
The full letter from the ACLU of NC follows in italics:
Dear City Council Members,
The American Civil Liberties Union of North Carolina (ACLU-NC) is a nonpartisan, nonprofit organization with approximately 11,000 members and supporters in the state. As an organization dedicated to preserving and protecting the individual rights provided for in the U.S. and North Carolina Constitutions, we have serious concerns about the proposed amendment to Article 1, Chapter 7 of the City Code to Prohibit Criminal Street Gang Members from Trespassing in Public Parks (Proposed Ordinance). Everyone can certainly agree that keeping our communities safe is an important goal. However, Wilmington Police have tools at their disposal to fight actual criminal activity and the Proposed Ordinance may violate the freedom of association and invite profiling or other arbitrary enforcement. We therefore urge the City Council not to adopt the Proposed Ordinance.
There are extensive laws at the state level which provide tools for law enforcement to address criminal activity, as well as criminal street gang activity. Article 13A, the North Carolina Street Gang Suppression Act, prohibits a range of street gang activity, including making it a Class H felony to engage in a pattern of criminal street gang activity. The criminal conduct that can be used to demonstrate this pattern includes nearly all crimes found in the North Carolina Criminal Code. Wilmington Police already have an effective tool in the criminal code to combat actual criminal activity committed by gang members in parks or anywhere else in the city. However, simple membership in a gang is not a crime and cannot be criminalized as it is constitutionally protected associational activity. Both the Supreme Court and the Fourth Circuit have recognized that simply "being in a gang is not itself illegal."1 Any city ordinance the Council wishes to adopt must be crafted so as to avoid criminalizing or punishing simple membership in a gang without a showing of actual criminal conduct.
1 Lytle v. Doyle, 326 F. 3d 463, 469 (4th Cir. 2003); see also City of Chicago v. Morales 119 S.Ct 1849 (1999).
However, public comments made by Wilmington Police Chief Ralph Evangelous indicate that the goal of the Proposed Ordinance is to punish people simply for hanging out with other individuals who may
or may not be gang members.2 This likely runs afoul of the First Amendment protection of free association. The Proposed Ordinance does not require that there be any evidence that those being banned from public parks are associating for the purposes of committing a crime in order to charge the individuals with public trespass. Instead, it is likely the Proposed Ordinance will disproportionately affect people in certain neighborhoods, based more on where they live or who their neighbors, friends, or relatives are.
The state law identified in the Proposed Ordinance as defining criminal street gangs, does so broadly, defining a street gang as any group of three or more people who "may have a common name, common identifying sign or symbol."3 Since the Proposed Ordinance does not require a showing of criminal conduct, nor contemplate any kind of criminal convictions or judicial findings before notice may be given, it leaves this definition wide open to interpretation. Not only could this invite racial profiling or other abuse of discretion by law enforcement, it could violate constitutional requirements that laws be specific enough to provide notice to the general public about what actions may violate the law. The Supreme Court has said that where a law "encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do to satisfy the statute," it is void for vagueness.4 This is particularly true when dealing with laws that curb constitutionally protected activity such as the freedom of association or expression.
The Proposed Ordinance is also likely to interfere with certain individuals' right to travel freely. The U.S. Supreme Court has recognized the "right to remove from one place to another according to inclination" for over 100 years.5 The North Carolina Supreme Court has held that "the right to travel upon the public streets of a city is a part of every individual's liberty protected by the Due Process Clause of the Fourteenth Amendment . . . and by the Law of the Land Clause, Article I, § 17, of the Constitution of North Carolina."6 An ordinance designed to ban suspected gang members from public parks, without a finding or any evidence of criminal wrongdoing, seems likely to violate the right to travel which has been laid out by both the U.S. and the North Carolina Constitutions.
North Carolina has extensive laws designed to address criminal activity resulting from gang membership that law enforcement can use to deter and punish criminal gang activity. Given the likelihood that the Proposed Ordinance will violate the rights of Wilmington residents based on their relationships, rather than focusing on criminal activity, and given its potential for abuse, we urge the City Council not to adopt the Proposed Ordinance.
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