Unlawful park bench sitting?

[MMandM]

In New York the Rivington Playground on Manhattan's East Side has a small sign at the entrance that says adults are prohibited unless they are accompanied by a child.

 

Sandra Catena, 47, said she didn't see the sign when she sat down to wait for an arts festival to start.

 

Two police officers asked her if she was with a child. When she said no, they gave her a ticket that could bring a $1,000 fine and 90 days in jail.

 

The city parks department said the rule is designed to keep pedophiles out of city parks, but a parks spokesman told the Daily News that the department hoped police would use some common sense when enforcing the rule.

 

The Fourteenth Amendment provides:

 

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

Issue: Whether the city "rule" that criminally penalizes adults for entering a public park when unaccompanied by a child is unconstitutional on its face and/or as applied to Sandra Catena?

Edited April 15, 2007 by MarkESQ

[NickolasJames8]

My opinion....If it's a public park, paid for with public money, for the enjoyment of the public, then the law is unconstitutional on its face.

[Luc]

The first question I would ask (and it is a question because I do not know the answer) would be: If the park is a City park (property owned and operated by the City of New York) does it have the right to restrict use of the property as it chooses?

 

I believe if it were owned by a private party or organization, it would have that right as long as the restriction did not violate any of the laws that protect against discrimination (for example, it could not exclude on the basis of race)?

 

In the city in which I live there is a park that contains a smaller area that is fenced in and has a sign posted that limits its use to children under 10. It has always been understood that this is because the rides are designed for younger kids and it is an area where the little kids can play without worrying about being harassed by the

[MMandM]

Both excellent points. All the woman was doing was sitting on a park bench, she was only asked if there was a child with her, when she said no, the police wrote the ticket.

 

Fundamental right: Freedom of Movement

 

An adult's right to freely move about and stand still has been recognized as fundamental to a free society. See, eg., PAPACHRISTOU v. CITY OF JACKSONVILLE, 405 U.S. 156 (1972)

 

Freedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it often makes all other rights meaningful--knowing, studying, arguing, exploring, conversing, observing and even thinking." Aptheker v. Secretary of State, 378 U.S. 500 (1964) (Douglas, J., concurring).

 

When a state has a strong interest in protecting minors, it may restrict their rights in ways in which they could not restrict adults' rights. Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944). Accordingly, it might makes some sense for the City to prohibit children from playing in a public park without adult supervision (for their own protection), but it makes no sense to make it a crime for an adult to be in a public place if unaccompanied by a child.

 

Before a municipality may enact valid legislation which infringes on a fundamental right like freedom of movement, the Government must prove a compelling need. Here, the City claims the rule is intended to keep pedophiles out of public parks--i.e., to protect children from pedophiles. Certainly, crime prevention and protecting children is a compelling state interest. But, the rule that prohibits ALL adults who are unaccompanied by children from entering a public park is NOT narrowly tailored to to the city's interest.

 

It is irrational to penalize all adults who are unaccompanied by children in public places as suspected pedophiles. The rule treats all of these adults as persons who criminally victimize children without probable cause to believe they are committing a crime. This runs contrary to the due process clause and the presumption of innocence.

 

The rule is unconstitutionally broad because it prohibits ALL adults (most of whom are not a threat to children) from entering public parks where children might be playing. The number of adults engaged in safe and innocent activity (e.g., sitting on a park bench waiting for an arts festival to begin) certainly outnumber the those engaged in criminal activity. The rule is not a narrowly tailored to the city's interest in protecting children from becoming the victims of pedophiles and is therefore an infringement on an the freedom of movement of adults.

Edited April 15, 2007 by MarkESQ

[Luc]

Does freedom of movement permit anyone to go anywhere though? *thinks* I guess it might

[NickolasJames8]

The difference between and public school and a public park is night and day. There would be no reason for an adult who didn't have business there to show up unaccompanied by a child. A park is a different story. What about a couple(gay or straight) having a romantic picnic? Their tax dollars pay for that park to be there, unless it's privately owned, so I still say that the law's unconstitutional.

[MMandM]

Providing public facilities (e.g., playground, park benches, public space) to one class of persons while excluding other classes of persons raises issues under the equal protection clause of the Fourteenth Amendment. Public grounds, swings, slides, teeter-totters, benches, etc., belong to the entire public to enjoy--not just children and their supervising adults. Most adults enjoy sitting on public benches in public parks, enjoy the fresh air and scenery, and enjoy watching children play in a public playground--and most of them are NOT pedophiles.

 

Even though a lot of people (judges included) use the phrase "constitutional right," its use is misleading. The Constitution does not confer rights. It specificially SECURES some of the rights we retained when our government of limited powers was formed. The people retained everything-- surrendered nothing--when they formed a more perfect union to SECURE the blessings of liberty.

 

In the beginning, the United States Constitution served as security or protection for the people against FEDERAL government intrusions or infringements on our rights. It wasn't until AFTER the civil war and the passage of the Fourteenth Amendment that the United States Constitution began to SECURE the blessings of liberty against STATE government intrusions or infringements on our rights.

 

Therefore, when dealing with a STATE or a political subdivision of a STATE infringement (e.g., the City of New York's rule) on life, liberty, or property, we apply the Fourteenth Amendment.

 

The due process clause of the Fourteenth Amendment protects all persons from state infringements on life, liberty, or property without due process of law. Due process means the "law of the land" and includes both a procedural component and a substantive component. The equal protection clause guarantees that similarly situated persons or classes of person will be treated equally.

 

When analyzing issues that arise under the Fourteenth Amendment, the courts apply different levels of scrutiny. State laws that classify based on race, color, or nationality, or infringe fundamental rights are subjected to strict scrutiny. The state must have a compelling state interest and the means used must be necessary and narrowly tailored to serve that compelling interest.

 

Freedom of movement within society is a fundamental right.

 

In CITY OF CHICAGO v. MORALES, 527 U.S. 41 (1999), the United States Supreme Court considered Chicago's Gang Congregation Ordinance that prohibited "criminal street gang members" from loitering in public places. If a police officer observed a person whom the officer reasonably believed to be a gang member "loitering" in a public place with one or more persons, the officer would order them to disperse. Anyone who did not obey the disperse order violated the ordinance. The Court held that the city ordinance violated the Due Process Clause of the Fourteenth Amendment.

 

Justice Stevens wrote:

 

While we, like the Illinois courts, conclude that the ordinance is invalid on its face, we do not rely on the overbreadth doctrine. We agree with the city's submission that the law does not have a sufficiently substantial impact on conduct protected by the First Amendment to render it unconstitutional. The ordinance does not prohibit speech. Because the term "loiter" is defined as remaining in one place "with no apparent purpose," it is also clear that it does not prohibit any form of conduct that is apparently intended to convey a message. By its terms, the ordinance is inapplicable to assemblies that are designed to demonstrate a group's support of, or opposition to, a particular point of view. Cf. Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984); Gregory v. Chicago, 394 U. S. 111 (1969). Its impact on the social contact between gang members and others does not impair the First Amendment "right of association" that our cases have recognized. See Dallas v. Stanglin, 490 U. S. 19, 23-25 (1989).

 

On the other hand, as the United States recognizes, the freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment. 19 We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution. Williams v. Fears, 179 U. S. 270, 274 (1900); see also Papachristou v. Jacksonville, 405 U. S. 156, 164 (1972). 20 Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is "a part of our heritage" Kent v. Dulles, 357 U. S. 116, 126 (1958), or the right to move "to whatsoever place one's own inclination may direct" identified in Blackstone's Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765). 21

 

There is no need, however, to decide whether the impact of the Chicago ordinance on constitutionally protected liberty alone would suffice to support a facial challenge under the overbreadth doctrine. Cf. Aptheker v. Secretary of State, 378 U. S. 500, 515-517 (1964) (right to travel); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 82-83 (1976) (abortion); Kolender v. Lawson, 461 U. S., at 358 -360, nn. 3, 9. For it is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that "simply regulates business behavior and contains a scienter requirement." See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982). It is a criminal law that contains no mens rea requirement, see Colautti v. Franklin , 439 U. S. 379, 395 (1979), and infringes on constitutionally protected rights, see id. , at 391. When vagueness permeates the text of such a law, it is subject to facial attack.

 

Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. See Kolender v. Lawson, 461 U. S., at 357 . Accordingly, we first consider whether the ordinance provides fair notice to the citizen and then discuss its potential for arbitrary enforcement.

 

In this case, the Court ruled that the Chicago's Gang Congregation Ordinance was void for vagueness under the due process clause.

 

The New York City rule prohibits an adult from entering a public place--a park or playground--unless the adult is accompanied by a child. The rule is a criminal law that contains no mens rea requirement (it is a strict liability crime) and infringes on constitutionally protected rights. To pass constitutional scrutiny, the rule must serve a compelling state interest and must be NECESSARY and NARROWLY-TAILORED (not overbroad) to serve that compelling state interest.

 

According to the article, the city parks department promulgated the rule in order to keep pedophiles out of public parks--to protect children from becoming victims of pedophiles. The state has a compelling interest in deterring crime and protecting children. However, a rule that prohibits ALL ADULTS from entering a public park unless accompanied by a child is not narrowly-tailored to serve a compelling state interest. Its sweep is too broad and will snare entirely too many law-abiding adults who are NOT pedophiles and are present in the public place for innocent, non-criminal purposes (e.g., sitting on a park bench waiting for an arts festival to begin).

 

Unless the law is declared void for vagueness in violation of the due process clause as in CITY OF CHICAGO v. MORALES, each and every infringement upon your fundamental liberty interests--e.g., your freedom of movement--must be analyzed in accordance with the test established by the Supreme Court: Compelling state interest and necessary, narrowly-tailored means to serve that compelling state interest.

Edited April 15, 2007 by MarkESQ

[Luc]

I

[MMandM]

Actually Luc you brought up some very good points. However assuming someone may be a criminal runs contrary to the due process clause and the presumption of innocence.

 

When discussing whether a law that infringes upon a fundamental right is necessary and narrowly tailored to serve a compelling state interest, courts often use this language: OVER-INCLUSIVE (overbreath) and UNDER-INCLUSIVE (underbreath).

 

If the compelling state (city) interest is to protect children from possible criminal victimization by pedophiles, prohibiting ALL adults who are unaccompanied by children from entering a public playground is BOTH an over-inclusive and under-inclusive means of serving the compelling government interest.

 

Obviously, not ALL adults unaccompanied by children are pedophiles (over-inclusive)--and it is possible that some adults who ARE accompanied by children ARE pedophiles (under-inclusive). The presence or absence of a child in the company of an adult doesn't have any rational connection to the issue of whether the adult in question MAY or MAY NOT be a pedophile.

 

And finally, if the City specifically made a law that prohibited PEDOPHILES from entering a public park where children are likely to be present, isn't the city penalizing STATUS rather than CONDUCT? It is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to penalize a person for their status rather than their conduct. See ROBINSON v. CALIFORNIA, 370 U.S. 660 (1962).

 

http://laws.findlaw.com/us/370/660.html

 

If the constitution prohibits the government from doing something directly, the government may not get around that prohibition through indirect measures. IMO, it is clearly unconstitutional to prohibit ALL adults unaccompanied by a child from entering a public park because of the remote possibility that the adult might be a pedophile (status) even though the adult's conduct is completely innocent (e.g., sitting on park bench waiting for art festival to begin)

 

Without doubt, the New York City "rule" at issue raises a LOT of constitutional questions.

[Luc]

*laughs* You are obviously a good lawyer. And I base that opinion not only on the way you present your argument and support it, but also on your ability to not answer a specific question but to answer and clarify other questions which may or may not have been asked. And no, that is not a criticism, it is a compliment. I have some personal experience with lawyers and have always been impressed by their ability to divert attention from one thing and focus it on another. Lawyers are magicians in their own right. I am absolutely certain that I should NEVER try to have an argument with a lawyer since I would end up arguing something completely different from my original argument

[MMandM]

I

[old bob]

You are obviously a good lawyer. And I base that opinion not only on the way you present your argument and support it, but also on your ability to not answer a specific question but to answer and clarify other questions which may or may not have been asked. And no, that is not a criticism, it is a compliment. I have some personal experience with lawyers and have always been impressed by their ability to divert attention from one thing and focus it on another. Lawyers are magicians in their own right.

Thanks a lot to both Luc and MarkESQ for your exchange of opinions. Considering your legal problem from a distance of about 6'000 miles and across the Atlantic ocean, as I do, show the deadly importance of it .

I dont have often such an occasion to laugh.(not about the problem, which is serious indeed, but about the discussion)

I am absolutely certain that I should NEVER try to have an argument with a lawyer since I would end up arguing something completely different from my original argument

Edited April 16, 2007 by old bob

[glomph]

$1,000 fine and 90 days in jail

 

I think the legal principle of proportionality (or whatever it is called) would be the central issue here. Does the punishment fit the crime?

 

That is somewhat harsher penalty than many jurisdictions have for drunk driving, at least for the first few offenses.