CITY OF WHITEACRE BLUFFS V. K.J. TYLER     The City of Whiteacre Bluffs, Ohio, historically was a close-knit, semi-rural, middle- class community. However, over the past two decades, Whiteacre Bluffs has experienced significant growth since the town was "discovered" as a trendy and accessible bedroom community. conveniently located fifteen miles from the rapidly expanding Gateway City, a major metropolitan area. Whiteacre Bluffs has a population of about 75,000, and can be accessed by two major interstate highway interchanges. Whiteacre Bluffs has had a reputation for being a good place to raise a family, particularly for people working in Gateway City who wanted the advantage of living in a suburban to semi-rural environment.
    In recent years. in part as a result of this reputation, its location, a relatively low cost of living area, its demographics, and the presence of a local university, Whiteacre Bluffs has became a very popular place to expand or to build new light manufacturing and other commercial facilities. In 1991 and 1992, one of these industries, Gentecho Chemical Manufacturing, relocated its Research and Development (R&D) facility and part of its corporate headquarters to Whiteacre Bluffs. Gentecho alone transferred about 400 employees from Chicago to work in its R&D facility and another 100 employees to work in the new corporate headquarters. Gentecho also hired a number of people who lived in Whiteacre Bluffs.
    In the early 1990s, increased demand for a workforce to staff the expanding service sector of Whiteacre's economy led to the construction of more than 9,500 multi-family housing units in Northeast Whiteacre Bluffs. The population living in other subdivisions and around the university also expanded tremendously. However, during the past two years, the population growth has leveled off. City officials attribute the flat growth to concerns by potential residents that Whiteacre Bluffs no longer presents an idyllic environment.
    Although the population growth has slowed, the number of crimes has increased. In particular, the number of reported incidents of burglary, assault, and drug trafficking has risen 15% over the past three years. In addition, there has been an increasing number of complaints about teenagers and young adults congregating on street comers and on public sidewalks, and loitering in public places long into the night. Whiteacre Bluffs police attribute this increase to the presence of street gangs which have appeared in the city over the past few years. One such group, the Fuchsia Posse, originated in and is still closely connected to, Gateway City. The Double Deuce, a new gang, has its origins in, and remains loosely associated with, a criminal youth organization in Chicago.
    Some Whiteacre Bluffs citizens attribute the presence of the street gangs to the influx of people from cities such as Chicago and Gateway City. Others attribute the increase in youth gang activity and general loitering problems, at least in some small way, to the demise of the Light in the Window Program ("LWP"). From 1990 to 1996, the LWP was operated by the Whiteacre Bluffs School System in its middle and high schools. The program was developed and administered by Blake Fischer, formerly employed by the Chicago Public School System. Fischer moved to Whiteacre Bluffs with a mate who was transferred there by Gentecho in 1990. The LWP operated on a “safe harbor” principle. Children were provided a safe, supervised, drug- and violence-free environment until 10:00 p.m. This ensured that the kids were supervised until parents came home from work. The program was staffed by community and university volunteers and social service personnel. The LWP was highly successful; however, the School Board discontinued the program in 1996 because of inadequate finding. Available funds were shifted to more traditional after-school programs. Shortly after the LWP was dismantled, criminal gang activity among teenagers markedly increased.
    Blake Fischer, with the help of private sponsors, carried on the work of he LWP in a much more limited format. Fischer used local recreational facilities and recruited community volunteers. However, a significant part of the program, drug and alcohol abuse counseling Services, were no longer possible. Efforts also shifted away from offering job training, rehabilitation, and other social services to simply providing a place for kids to enjoy positive peer interaction and have opportunities to work with adult mentors.
    In 1995, when she was sixteen, Defendant K.J. Tyler was arrested for underage possession of alcohol and for possession of marijuana. The background investigation done in connection with the juvenile court's adjudication of her status (whether or not she would be declared a delinquent youth and placed in the custody of Children's Services) revealed that, while K.J. had not previously been arrested or otherwise exposed to the juvenile justice system, she had begun hanging out with the Fuchsia Posse, a Whiteacre Bluffs gang. However, she was not yet a fill-fledged member. In light of a potentially serious problem, and the fact she had had previous problems, the juvenile court required K.J. to perform 120 hours of community service and to attend a six-month drug and alcohol "twelve-step" program sponsored by the Council on Alcohol and Drugs. Such programs were available through the school system under the auspices of the LWP.
    K.J. was an apparent success story for the LWP. She completed her rehabilitation program, renewed her interest in school, and became an active participant in LWP activities. K.J. was a vocal opponent of the School Board's proposal to discontinue financing the LWP in the schools. After the School Board discontinued the LWP, K. I. became disillusioned and felt that the community lacked any concern for its youth. K.J.'s faith in her community was partially restored, however, when Gentecho and others provided private finding for some parts of the program. Since her high school graduation in May 1998, K.J. has been a volunteer for the LWP. K.J. spends a significant amount of time doing what she enjoys best: going out to where other kids are hanging out, especially gang youth and gang wannabees; sharing her experiences; and trying to convince them to give the LWP a try
    With the rise in crime and the increased presence of gangs in Whiteacre Bluffs, many citizens began to feel threatened by kids congregating in parks, malls and on the streets, because they feared the youth were members of gangs. The kids dared anyone to walk by them and otherwise hassled law-abiding citizens. The kids adopted gang colors and other indicia of gang participation. Roan Lewis, owner of a popular downtown restaurant jazz club, the Panache Cafe, was particularly troubled by kids hanging around and intimidating his/her customers. In fact, in May, 1998 s/he closed his/her outside dining area because of the presence of these young people. Fearing for their safety, citizens demanded that the City Council do something. The Council held hearings in April and May of 1998 at which Roan Lewis, him/herself a member of Council, and others, testified. The testimony cited both national statistics on gangs and the problem of loitering, as well as local statistics regarding the presence of such activity in Whiteacre Bluffs.
    In response to these perceived problems, the City Council enacted an anti-gang loitering ordinance (see Exhibit 1). The City Council concluded that loitering in public places by teens and young adults invites potential gang activity, intimidates law--abiding citizens, and creates a justifiable fear for the safety of persons and property in the area because of the threat of violence, drug-dealing, and vandalism associated with such activity.
On September 25, 1998, just about three weeks after its effective date, K.J. Tyler was arrested under the ordinance. Although there are significant disputes concerning details of what happened that evening, the events generally evolved as follows.
    At around 8:45 p.m. on that Friday, K.J Tyler arrived at the Worldwide Pizza Palace located at 2594 Napa Valley Drive. It is one of her favorite places to hang out. She had become good friends with the owner, Reagan Locksdale, who is, in turn, a friend of Blake Fischer More importantly, many members of the Double Deuce routinely socialize in an area located between the Panache Cafe' and the World Wide Pizza Palace. Tyler considers it to be a prime location in which to talk to other kids about the LWP. She also considers several people in the Double Deuce to be her friends, especially Jamie Grayan or "Baby G," who became one of her painting students through the rehabilitation program she entered. Tyler also considers herself to be a friend to Lee Sullivan, although Lee does not necessarily see things the same way. That evening, several Double Deuce members were present, including Ronell Grayan, (also known as "Big G"), Bobby Jones, and Rene Fontaine. They could be identified by their white and green clothing and their gold medallions inscribed with interlocking 2s surrounded by a circle.
    At first, K.J. went inside to talk with Reagan Locksdale. They had a nice conversation and then Locksdale returned to his/her customers and K.J. went outside. Altogether there were between 10 and 20 youth talking to each other at varying points in time after 9:00p.m. The patio in front of the Worldwide Pizza Palace was small; many of the kids preferred to hang out on the grass between the Panache Cafe' and the Worldwide Pizza Palace or stand along the sidewalk.
    (See Exhibit 2.) K.J. was in the grassy area, leaning against the retaining wall which surrounded the Worldwide Pizza Palace patio. She was listening to Big G boast about the previous night's gang bang with the Fuchsia Posse.
    K.J. observed a college student come over to Big G . Big G took a break in his colloquy and talked with the student for a brief moment. K.J. thought that they were involved in some sort of drug transaction. She decided she really could not sit back and listen; she knew it was time to approach Baby G and Lee Sullivan. K.J. was not sure Lee would be all that receptive to hearing about the LWP and straightening their lives out, but Baby G had been receptive in the past. when Big G realized that K.J. was, in effect, trying to recruit some of his people away from him, he began arguing with K.J.
Roan Lewis, the owner and manager of the Panache Cafe', has had repeated problems with the kids overflowing from the Pizza Palace. S/he had contacted the Whiteacre Police Department to complain about young people who were loitering outside his/her establishment. Many of the youth wore green and white, colors for the street gang known as the Double Deuce. In fact, Lewis had to close down the patio eating area because of the profane language and the gang's raucous conduct. Occasionally, members of the gang would harass patrons trying to enter the restaurant--demanding "doggie bags," asking for money, and blocking their way. Gang members also liked to skateboard and would often careen into or around pedestrians. Lewis had observed what s/he thought were drug transactions, and was aware that many of the youth who routinely hung out near his/her Cafe' had had prior run-ins with the police. Lewis, who was a member of City Council, had led the fight to enact the anti-gang loitering ordinance and had looked forward to the time when the anti-gang loitering ordinance would take effect.
    On September 25, 1998, Lewis saw his/her first opportunity to demonstrate to the kids who had caused him/her so many problems who was in charge. At approximately 9:15 p.m., Lewis called to report to the police that a gang of kids were harassing and intimidating his/her patrons and other pedestrians. Lewis told the police that there were a group of roughly fifteen or so youth, ages from 13 to 19, hanging around in the grassy area between the Cafe' and the Worldwide Pizza Palace. Lewis specifically described K.J. Tyler as one of the perpetrators. Lewis had been acquainted with K.J. through her testimony at the School Board hearings and was sure that K.J. had to be up to no good. Lewis saw K.J. arguing with one of the gang members and assumed they were about to fight over some drug transaction gone bad.
    Sergeant Kelsey Johnson, head of the Special Unit on Gang Violence responded to the call. When Sergeant Johnson arrived at Panache, s/he observed 15 or so youth, both male and female, whom s/he believed to be between the ages of 14 and 21. The youth were generally standing in an area located between the Cafe and the Worldwide Pizza Palace. Initially, the youth appeared not to be doing much other than smoking and talking. S/he observed that five or six of the youth were wearing green and white, the colors characteristic of the Double Deuce gang. Sergeant Johnson witnessed some of the youth interfering with passing cars or appearing to harassing pedestrians on the sidewalk, and noticed that none of the youth appeared to be Pizza Palace patrons. It appeared to Sergeant Johnson, after observing the group from inside his/her cruiser for approximately fifteen minutes, that several of the gang members might be involved in drug--trafficking activity. Johnson also saw K.J. Tyler talking with several of the youth, and then arguing with one of the known gang members. Sgt. Johnson then walked over to the grassy area where the youth were congregated.
    Johnson informed them that they were in violation of the local loitering ordinance, that they presented an imminent threat to public peace and safety, and that they must disperse immediately or be arrested. More than half of the youths left without a problem--although they voiced their displeasure at being "pushed around and abused by the police when they were only hanging out with their friends." Two or three of the youths departed as soon as they became aware of the police presence. At approximately the same time, the owner of Worldwide Pizza Palace, Reagan Locksdale, cane running out from the restaurant, saying the police were scaring away all his/her customers. Sgt. Johnson informed Mr./Mrs. Locksdale of Roan Lewis' phone complaint and instructed Locksdale to step aside or s/he would be charged with obstructing official police business.
    K.J. told Sgt. Johnson that she did not have to leave--that she was in a public place, was not engaged in criminal activity, and had every right to eat pizza and carry on a conversation with whomever she chose. Sgt. Johnson then arrested K.J. Tyler and Big G.