Anti-loitering law challenged

GROUPS SAYS DAY LABORERS SITE RESTRICTIONS ARE UNCONSTITUTIONAL.
BY MARK SCHULTZ, STAFF WRITER (The Chapel Hill News)


CARRBORO - The Durham-based Southern Coalition for Social Justice has asked Carrboro leaders to rescind the town's anti-loitering ordinance because it is unconstitutional.
The ordinance targets the corner of Jones Ferry and Davie roads where dozens of Latino and black men gather daily to wait for work. It makes it a misdemeanor for any person to "stand, sit, recline, linger, or otherwise remain within the area" from 11 a.m. to 5 a.m. the next day.
"The ordinance has interfered with workers' ability to obtain employment during these times," says a letter from the coalition signed by staff attorney Christopher Brook and others. "Workers who have risked violating the law in an effort to put food on their families' tables that evening have been subjected to humiliating herding off the street by Carrboro police officers in their cruisers."
The letter, sent to Town Attorney Mike Brough and the Board of Aldermen, was also signed by lawyers from the North Carolina NAACP, ACLU of North Carolina, N.C. Justice Center, the N.C. Immigrant Rights Project, UNC Center for Civil Rights, UNC School of Law Center on Poverty, Work & Opportunity, and professors in the UNC Immigration/Human Rights Policy Clinic and UNC Civil Legal Assistance Clinic.
The aldermen have not discussed the letter, which was dated June 16. Several interviewed last week said the issue could possibly be resolved if efforts to establish a day laborer center, the subject of a meeting this weekend at El Centro Hispano in Carrboro Plaza, succeed. (See sidebar, page 5A.)
Longtime Alderwoman Jacquie Gist acknowledged the anti-loitering ordinance was controversial. But she said the board was responding to community concerns on both sides of the issue when it approved the rules four years ago and that Brough wrote the language carefully.
"This arose when people not only felt uncomfortable but threatened walking past that corner," Gist said. "We did not want to prevent anybody from getting work."
Alderman Sammy Slade, who was not on the board when it passed the ordinance in 2007, said it has always surprised him.
"I can see how that letter makes sense," Slade said. "If people do something illegal that's why we have police."
The letter cites a 2009 Court of Appeals case, North Carolina v. Mello, that the coalition letter says struck down a Winston-Salem anti-loitering ordinance. The court said "mere presence in a public place cannot constitute a crime" because it failed to prove intent and because it would curb such permissible activities as hailing a cab, distributing fliers or collecting donations.
"While the ordinance may have been adopted with legitimate ends in mind, this cannot justify encroaching on First Amendment-protected activity," the letter says.
The aldermen meet this Tuesday for the last time before their summer break. Alderwoman Lydia Lavelle, who also was not yet on the board when it passed the ordinance, said the issue needs more time than is available this week.
Lavelle is an attorney and teaches law at N.C. Central University, where she's had her students write about the ordinance. She said the aldermen have three choices: do nothing, modify the ordinance or do away with it.
"I have some concerns about it, I do," she said. "I respect [Brough's] opinion, but there are two sides of it, and I am a little troubled by it."
mark.schultz@nando.com or 932-2003