WHITEACRE BLUFFS MUNICIPAL COURT
TRAVERSE COUNTY, OHIO
 

City of Whiteacre Bluffs

V

K. S. Tyler

Case No.99-01-756
 Judge Obligem
 
 
PRELIMINARY HEARING
BRIEF OF DEFENDANT K.J. TYLER
INTRODUCTION:
In May and June of 1998, the Whiteacre Bluffs City Council heard testimony from witnesses complaining of the loitering activities of youth in certain sections of the city. Roan Lewis, the owner of a restaurant purportedly impacted by gang loitering, and Sgt. Johnson, an officer who views the socioeconomic changes in Whiteacre Bluffs as a harbinger of doom, were two of those who testified. Sgt. Johnson testified concerning national trends in gang violence and gang growth, the increased number of reported criminal incidents in Whiteacre Bluffs, and the connection Johnson drew between the increase in criminal activity and the presence of youth street gangs. Johnson made specific reference to two groups: the Fuchsia Posse and the Double Deuce. Blake Fischer testified that although there had been an absolute increase in the number of crimes reported, the per capita increase had not followed national trends. Fischer further testified that the increase in the number of reported crimes and loitering activity resulted not from the presence of gangs, but from the abandonment of school-sponsored social programs such as the Light in the Window Program Fischer had operated on behalf of the Whiteacre Bluffs school  system. Fischer further testified that the Light in the Window Program, was effective in slowing the growth and activity of juvenile delinquency and youth loitering activity. Despite a lack of evidence that street gangs were a major problem in Whiteacre Bluffs; despite persuasive evidence that alternative programs existed that had proven themselves to be efficacious in keeping youth off the street, and despite insufficient information concerning the extent to which the proposed anti-gang loitering statute might adversely impact the rights of gang and non-gang members alike, the ordinance was passed.
On September 1, 1998, WBMC 9-5-014 went into effect. Section 9-5-014's stated purpose was to discourage youth from loitering in public places with gang members, and to reduce the public presence of aimless youth. (See Exhibit 1) Although the ordinance was purportedly enacted to quell a rising tide of youth gang violence and related illegal activities projected to overwhelm the community of Whiteacre Bluffs, it quelled the efforts of defendant K. J. Tyler and others to discuss with members of the Double Deuce gang the existence of viable alternatives to the gang.
At the time of her arrest, KJ. Tyler had just completed a visit with Reagan Locksdale, the owner of the Worldwide Pizza Palace.  She was there for two reasons: to order pizza with friends and to discuss with some of the kids present in the crowd, specifically Jamie Grayan and Lee Sullivan, the disadvantages of the gang lifestyle and the advantages of participating in positive social behaviors. Even the argument that provided the pretext for her arrest was a part of her efforts to encourage a departure from the gang environment. In addition, at the time of her arrest, and during the period immediately preceding Sgt. Johnson's order to disperse, the conduct of the youth gathered, while admittedly obnoxious, did not present any threat, much less an imminent threat, to the public peace, safety or order. The evidence will show that the argument between K.J. Tyler and Ronell Grayan, while loud, did not threaten to escalate into a violent encounter. The evidence in this case does disclose, however, that K.J. Tyler's arrest was based on the overzealous efforts of a police officer who has a personal stake in convincing the Whiteacre Bluffs community that there is sufficient gang related activity to justify his/her gang violence task force.
More importantly, WBMC (9-5-0l4’s prohibition on loitering infringes upon the rights of teenagers and young adults, and the rights of those around them, to associate for the purpose of expressing competing ideas and political viewpoints. The ordinance limits the associational rights not only of gang members, but of those who would converse with them. This infringement of important First Amendment rights may not take place absent a compelling justification, a justification wholly absent in this matter. Therefore, the charges against K.J. Tyler must be struck down as unconstitutional and the charges against K.J. Tyler dismissed.
LAW AND ARGUMENT
A. Defendant K.J. Tyler's Arrest Pursuant to Section 9-5-014 of the Whiteacre
Bluffs Municipal Code Denied Her Right to Freedom of Association in Violation of the First and Fourteenth Amendments to the Constitution

At the time of her arrest, defendant K.J. Tyler was engaged in an effort to convince youth gang members, specifically Jamie Grayan and Lee Sullivan, that the benefits of gang life, the camaraderie, the close personal relations, the protection, could be obtained through other means such as the Light in the Windows Program (LWP), without the risks of drugs and violence that so often accompanied the gang lifestyle. In order for her to engage in the advocacy of such alternatives, it was necessary that K.J. Tyler be able to meet gang members on their own turf without fear of arrest or official reprisal. Her right to advocate, her freedom to associate with gang members for this purpose is, and will continue to be, abridged by the terms of WBMC sect. 9-5-014.
The Supreme Court has identified two kinds of associations entitled to First Amendment protection: those with an intrinsic or intimate value, and those that are instrumental to forms of religious and political expressions and activity. Defendant does not contend that gangs are the type of intimate association contemplated by the Court. The instrumental right of protected association is directly related to the individual's freedom to speak, to worship, and to petition the government for the redress of grievances because, without it, these liberties themselves could scarcely exist, much less thrive. Roberts V. Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 3252 (1984). Defendant Tyler's efforts to promote the Light in the Window Program is the type of instrumental association protected by the First Amendment.
This freedom of instrumental or expressive association permits groups to engage in the same activities that individuals may engage in under the First Amendment. An individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those goals were not also guaranteed. According protection to collective effort on behalf of shared goals is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority. Consequently, the Court has long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends. Roberts, 468 U.S. at 622. Section 9-5-014 abridges this fundamental right.
In the City ofChica2o V. Youkhana, 277111. App. 3d 101,660 N.E.2d 34 (1995) the court struck down a city anti-gang loitering statute that authorized police to order those loitering to disperse if one member present was a gang member and to arrest those who refused. The court stated: The City's ordinance infringes upon first amendment freedoms in several obvious ways. We read the ordinance to mean that when one gang member stands in public with a group of innocent non-gang members, all can be ordered to disperse, and all can be arrested for failing to disperse. The ordinance is triggered when a gang member is observed loitering; the innocent person's conduct is irrelevant. In other words, the ordinance gives the police power to order dispersal and arrest those who associate with gang members in public places. This smacks of a police-state tactic and clearly violates the first amendment rights of the innocent persons.
Similarly, sect. 9-5-014 infringed upon K.J. Tylerts  right to associate with gang members and others for the purpose of advocating alternatives to the gang lifestyle.

B. Because 89-5-014 Infringes Associational Rights Under the First Amendment. It Cannot be Upheld Unless It Is Supported by Compelling Governmental Interests.

Defendant Tyler acknowledges that the right to associate for expressive purposes is not absolute; infringements may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. Roberts V. Jaycees, 468 U.S. 609,623 (1984) while local governments are permitted to exercise their police powers In order to regulate conduct that jeopardizes the public welfare, they cannot, in the process, strip fundamental personal liberties when the end can be more narrowly achieved. In applying the Jaycees test, we look first to the interests that the City has asserted as justification for the ordinance. Those interests fall into three broad categories: the health and safety of the public, community, and tourists; public morality and decency; and economic development. Id. While these interests are the same as those spelled out in the ordinance, City Council cannot demonstrate that the ordinance is the only ready means of obtaining this goal.
The City of Whiteacre Bluffs has failed to demonstrate that the problem of youth loitering it is experiencing, as opposed to the showing made with respect to the problem in Gateway City, Chicago or New York, presents a significant or expanding threat to the citizenry. The evidence of record does not support a finding that Whiteacre Bluffs is overrun by street gang violence. More importantly, there is substantial evidence that, at least in Whiteacre Bluffs, there are less restrictive, publicly-funded alternatives proven efficacious in reducing the type of loitering activity the statute was intended to reach.
Contrary to what the City has argued, the mere fact that the ordinance also requires that the officer have a reasonable belief that there exists an imminent threat to the public safety, peace, or order does not save it. First, it permits the officer to make a determination that a threat is imminent where, as in the present action, no such threat exists. Second, it permits the officer to quell public discussion of important social issues if, in the officer's view, the discussion is getting out of hand. The interests purportedly being safeguarded by this ordinance, the right to walk to a restaurant without being exposed to foul language or jostled by a group of youth, do not justify the infringement of important First Amendment interests. The regulation in our case fails because it is readily apparent that there are means of achieving the stated goals that are
significantly less restrictive of associational freedoms. Jaycees at 623. Indeed, most if not all of the evils the council associates with the gangs can be or have already been addressed by criminal statutes targeted directly at the evils themselves.
If the council is seeking to reduce the number of youth drawn into gangs, then it can provide alternatives to gang membership. Indeed, the LWP was a stellar example of the effectiveness of such programs to stop the evil this statute purports to address. Assuming, arguendo, that the ordinance is constitutional, K-J. Tyler's conduct on the night in question did not violate its terms. Accordingly, defendant Tyler respectfully submits that WBMC sect. 9-5-014 be struck down as an unconstitutional violation of the First Amendment to the United States Constitution.

C. The Citv of Whiteacre Bluffs Lacks Sufficient Evidence to Establish Probable Cause to Believe That K.J. Tyler Violated Section 9-5-014 of the Whiteacre Bluffs Municipal Code the So-Called Anti-Gang Loitering Statute; Therefore. the Charges Must Be Dismissed.

Less than one month after its effective date, defendant K.J. Tyler was present at the Worldwide Pizza Restaurant, a place known to her to be one in which members of the Double Deuce often gathered on Friday evenings. Often, as was the case on September 25, 1998, anywhere from ten to twenty kids were gathered talking, smoking, and generally having a good time. The crowd did, on occasion, become boisterous; at times the language the youth used was profane or might otherwise be considered objectionable. Certainly, their behavior was not so boisterous that it could reasonably have been viewed as presenting a threat to public safety.
At approximately 9:00 p.m. on the 25th, K.J. Tyler was present during a conversation in which one of the Double Deuce's leaders, Ronell Grayan, a.k.a. Big G, was boasting about an altercation he and some of his gang were involved in with members of the Fuchsia Posse the night before. K.J. Tyler spent several moments observing the interplay between Ronell Grayan and several youth who were not gang members. These wannabes were precisely the kind of youth Tyler knew would most benefit from the activities and opportunities available at the Light in the Window Program (LWP) with which she was associated. Indeed, two in particular, Jamie Grayan, a.k.a. Baby G, and Lee Sullivan, were of special interest to Tyler. After a period of observation1 Tyler began to talk with Baby G and Lee Sullivan. She attempted to engage them in a conversation about their gang lifestyle and alternatives to it. Big G was upset that Tyler was trying to diss him, not only by interrupting his colloquy on the previous night’s gang bang, but by trying to draw Baby 0, his younger sibling, and Lee Sullivan, away from the periphery of the gang lifestyle.
Sgt. Johnson grabbed at his/her first opportunity to make an arrest under the new ordinance, one s/he her/himself was instrumental in having enacted. That statute specifically criminalizes the associational activities of persons present who are in the presence of one or more persons believed to be gang members when any one of the persons present engage in conduct that intimidates, obstructs, or otherwise harasses others, or where there is potential drug trafficking activity taking place. If such conduct is observed, and if there is a reasonable basis upon which to believe that there is an imminent threat to public peace, safety, or order, a police officer is permitted to order those gathered to disperse or face arrest. The evidence will show that the defendant, K.J. Tyler, had lawful reasons to be in the public area adjacent to the Pizza Palace where she intended to order pizza; that her discussions with Lee Sullivan, Jamie Omyan, and Ronell Orayan are not loitering within the terms of the statute; that the group was not obstructing or intimidating pedestrians or motorists; and ironically, that she was arrested for doing anti-gang activities; and that Sgt. Johnson lacked any objectively reasonable basis to believe that, at the time of Tyler's arrest there existed an imminent threat to public peace or safety. Rather, the arrest was premised upon a preconceived determination that Tyler and others were prime targets under this new ordinance when Sgt. Johnson approached the group of youth, ordered them to disperse and, when a few failed to do so, arrested them. Sgt. Johnson's actions pursuant to the statute were therefore not based upon a reasonable belief of an imminent threat to public safety, peace or order. In so doing, Sgt. Johnson cut short any opportunity defendant Tyler had to spread the message about the LWP. The evidence will show that the City of Whiteacre Bluffs cannot establish probable cause to believe that there has been violation of the ordinance and, moreover, that the arrest infringed upon her right to associate with members of the Double Deuce for that purpose. Accordingly, the charges against her must be dismissed.

Counsel For Defendant
1705 Highland Street
Whiteacre Bluffs, Ohio
********************

Certificate of Service
The undersigned certified that true copies of the foregoing memorandum were served upon the City Attorney
on the 27th day of January, 1999.
 

Blaine Justice
Counsel for Defendant