Commentary: Public nuisance laws are an unconstitutional nuisance

Scott Forsyth

The city of Rochester has a public nuisance ordinance, which targets “problem” properties. The mayor assesses points against a property every time a violation of federal, state or local law occurs on it or somebody “suffer(s) or permit(s) the premises to become disorderly.” Disorderly is not defined.

If a property accumulates too many points in a certain period of time, the mayor may suspend or revoke any license associated with the property and even order the closing of a building on the property.

For rental property, the license is the certificate of occupancy. Its loss, or the threat thereof, forces the landlord to remove his tenants.

Neighborhood groups and politicians applaud the ordinance as another tool to rid the city of undesirables, usually drug dealers. They should temper their praise in light of happenings in Norristown, Pa.

Lakisha Briggs is a poor, single mother living in an apartment in Norristown. Her boyfriend physically abused her at least eight times. She or her neighbors called the police, who did respond, usually to arrest the boyfriend but sometimes her. She did get an order of protection, which the boyfriend violated.

It so happens Norristown has a cruder version of Rochester’s ordinance. If the chief of police in his discretion determines three instances of “disorderly behavior” have occurred at a rental property, he may suspend or revoke the landlord’s rental license.

Again, disorderly is not defined. The ordinance does provide some examples of disorderly behavior, including calls for domestic violence.

During the fifth response, a police officer told Ms. Briggs, “You are on three strikes. We are gonna have your landlord evict you.” Norristown tried, first putting Ms. Briggs and her landlord on probation. After the eighth response it revoked the landlord’s license.

Reluctantly, the landlord commenced an eviction proceeding. The judge refused to grant a warrant of eviction. Despite the ruling, Norristown claimed it had an “independent right” under the ordinance to condemn the property as “unlawful” and evict Ms. Briggs for trespassing.

At this point Ms. Briggs turned to the ACLU for assistance. Last April it commenced a lawsuit, alleging the ordinance violates the First, Fourth and Fourteenth amendments and two federal statutes, Briggs v. Borough of Norristown, No. 2:13-cv-02191 (E.D. PA 2013).

Of special note is the First Amendment claim, that the ordinance violates the right of Ms. Briggs “to petition the Government for a redress of grievances.” While a petition is usually thought of as having a political or social purpose, it can be as basic as a plea for emergency assistance from law enforcement or a report of criminal activity, see, e.g., Meyer v. Bd. of County Comm’rs, 482 F. 3d 1232 (10th Cir. 2007).

That the grievance may be “personal” is irrelevant. Two years ago the Supreme Court reminded us“(t)he Petition Clause undoubtedly does have force and application in the context of a personal grievance. … At the founding, citizens petitioned on a wide range of subjects, including matters of private and public concern. Petitions to colonial legislatures concerned topics as diverse as debt actions, estate distributions, divorce proceedings, and requests for modification of a criminal sentence,” Borough of Duryea v. Guarnieri, 564 U.S. __, 131 S. Ct. 2488 (2011).

Besides, eradicating domestic violence is a matter of great public concern. That is why we have laws on the subject.

The enforcement of the ordinance against Ms. Briggs had a concrete and ongoing chilling effect on her right to contact the police. She grew more fearful of eviction with each incident. Following the last attack by her boyfriend, which hospitalized her, she did not even call the police. She refused to cooperate in its investigation. The borough’s actions “would have chilled or silenced a person of ordinary firmness from” seeking police assistance.

The standard of review is strict scrutiny. Norristown must demonstrate the infringement on the right to petition is based on a compelling interest and the ordinance uses the least restrictive means to further the interest.

In its papers the borough asserts the ordinance “decreases the burden and expense” on the police of responding “to incidents of domestic violence or other disorderly behavior” and protects the “welfare” of neighbors.

Neither saving taxpayer dollars nor promoting community welfare is a compelling interest. In an order, the police department states one of its goals “is to reduce the incidents and severity of domestic violence.” Threatening the victims of such violence with eviction will only discourage them from calling the police. Perversely, the ordinance may increase the incidence and severity of domestic violence in Norristown.

Briggs involves the application of a public nuisance ordinance against a victim of domestic violence. But the issue the case raises, about the chilling effect such ordinances have on persons seeking law enforcement assistance, applies to all victims and witnesses. Why should a renter in Norristown or Rochester report a crime if so doing may result in her eviction?

Effective law enforcement depends on strong relationships between the police and members of the community. Public nuisance ordinances undermine that trust and municipalities should not enact them.

Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or [email protected]