Public nuisance ordinances are becoming the rage among municipalities. The City of Rochester has one. The Borough of Norristown, just outside Philadelphia, had one. Hopefully, Rochester does not follow the example of Norristown.
In the words of the Rochester ordinance, there exist “flagrant violation(s) of certain Penal Laws and Municipal Code provisions” in the use of property, violations which adversely affect “the quality of life and total community environment.” Rather than address the violations through the criminal justice system, which is perceived to be time-consuming, the municipalities seek a nimbler, civil remedy they control.
In the case of Rochester, it assesses points against the property. After a certain number of points within certain periods of time, the city may suspend or revoke permits or order a building closed.
Norristown’s ordinance differed a bit. It addressed rental properties only and focused on “disorderly behavior” engaged in by tenants or guests. An example of such behavior was a domestic disturbance.
Three occurrences of disorderly behavior, as determined by the chief of police in his “sole discretion,” could cause the landlord to lose his rental license. In practice the borough would notify the landlord he had a disorderly tenant and threaten to revoke his license unless he evicted the tenant.
Enter Lakisha Briggs, a Section 8 tenant with a small child and an abusive boyfriend. Between January and May 2012, he assaulted her or her family seven times. She called the police the first five times.
After the fourth incident the police told her they were charging her with a strike under the public nuisance ordinance. They were tired of responding to her calls. “We’re gonna have your landlord evict you.”
Briggs stopped calling the police but that did not stop the beatings or prevent neighbors from calling. After two more incidents, the borough told her landlord to evict her or lose his license. He tried, twice.
Briggs turned to the ACLU for assistance. It brought suit alleging the ordinance violated her rights under the First, Fourth and Fourteenth amendments and the Fair Housing Act, Briggs v. Norristown, No. 2-13-cv-02191 (E.D. PA 2012).
Of particular interest is the First Amendment claim – the ordinance violates Briggs’ right to petition the government for redress of grievances.
The courts have not said much about the scope of the petition right. They do distinguish on one hand between making a request of government, and on the other hand compelling government to provide services, such as police protection, as a result of the request, or to pursue a criminal investigation. The former is protected petition activity and the latter is not.
Briggs argued the enforcement of the public nuisance ordinance chilled her from contacting the police to request emergency assistance or to report incidents of domestic violence. Any reasonable person in her shoes under these circumstances would be afraid to call the police for fear of losing her home.
Norristown asserted Briggs called 911 for “purely personal” purposes and personal use is an exception to the right protected by the First Amendment.
Suggesting domestic violence is an issue not worthy of police response belittles a topic of great public concern today. Fortunately, the Supreme Court has held the Petition Clause has “force and application in the context of a personal grievance addressed to the government. … At the founding, citizens petitioned on a wide range of subjects, including matters of both private and public concern. Petitions to the 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. __ (2011).
In the end Briggs triumphed. She changed apartments and terminated her relationship with her abuser. Last month Norristown repealed its ordinance. It paid her $495,000 in damages and attorney fees.
What about Rochester? Under its ordinance the mayor assesses points against a property if a violation of one of 33 penal laws or municipal code provisions occurs. A conviction is not necessary. Nor does the owner need to know of the illegal activity to have the points assessed. Maybe so far, so good.
But the ordinance goes further. Points can be assessed if “the premises” “become disorderly” or if “a business at the premises” becomes “a source of disruption for the neighborhood and/or a focal point of police attention.” This language is as open-ended as the disorderly behavior language in the Norristown ordinance, which the borough used to harass Briggs.
A friend who is familiar with the enforcement of Rochester’s ordinance is not aware of the city using the open-ended language to go after owners or tenants. I suppose we should thank the city for showing restraint. Better yet, it should delete the vague sections.
Crime victims, especially domestic violence victims, are not nuisances. They deserve access to police services and help to break the cycle of violence, not notices they are disorderly and demands to move.
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]