09/11/2011
By Ben Anderson
After Casey Anthony was found not guilty of murdering her daughter Caylee in early July, an online petition sprang up to create a new law -- dubbed "Caylee’s Law" -- that would charge a parent with a felony if they failed to report their child missing within 24 hours of their disappearance, or within one hour of their child's death. At the time, criminal justice reporter Radley Balko noted the danger of such knee-jerk responses to injustices as perceived by the public in a high-profile case such as Anthony’s:
The problem, of course, is that the new law -- usually poorly written and passed in a fit of hysteria -- is too late to apply to the case it was designed for. But it does then apply to everyone else.
Anchorage has had its own recent examples of these knee-jerk reactions to individual’s actions. Back in June, John Martin III began sleeping on a sidewalk outside of Anchorage City Hall as a peaceful protest against an ordinance that prohibited camping in public areas and targeted populations of the city's homeless, who had set up makeshift residences in greenbelts and elsewhere around Anchorage.
Martin was hoping to get some face time with Anchorage Mayor Dan Sullivan to discuss the law, and his protest briefly became a hot topic around town. But Sullivan was largely unsympathetic to Martin's cause.
Then came action seemingly targeted toward Martin. On July 20, Martin was arrested for being out of compliance with the sex offender registry, having previously registered as living in the Campbell Creek area -- clearly a violation given his new downtown location. Martin posted bond and was back in front of City Hall the next day with his registration updated.
Next, Sullivan proposed a sit-lie ordinance for Anchorage, similar to anti-homelessness initiatives in other West Coast cities, which outlaws sitting or lying down on downtown sidewalks. The American Civil Liberties Union of Alaska at the time expressed concern that the proposed law could infringe on Martin's -- or anybody else's -- First Amendment right to peaceably assemble and hold “sidewalk protests.”
Beyond that, the law sounds like a wacky board game or children's trivia rule. Imagine a tourist visiting Alaska for the first time, staying at the Hotel Captain Cook in the heart of downtown Anchorage. After a long day of shopping at Once in a Blue Moose or Grizzly's Gifts, maybe they stop by M.A.'s famous hot dog stand and can't wait to get to a table to enjoy it. So they sit down on the sidewalk, about to savor the first bite of reindeer sausage, only to be shooed along by a police officer exiting the courthouse, saying "you can't sit here."
Then that tourist gets to go home and tell friends, "you won't believe what kind of stupid law they have in Alaska."
In introducing the law, Sullivan cited San Francisco as an example of what Anchorage should hope to avoid. San Francisco passed a sit-lie ordinance of its own by public vote in November 2010, though the language of that law was far less restrictive than the Anchorage proposal. San Francisco prohibited sitting and lying down on sidewalks between 7 a.m. and 11 p.m. -- allowing citizens to continue to sleep on the streets -- and the Bay-Citizen at the time quoted an opponent of the new law saying it would likely be overturned in court.
It was still in effect in mid-2011 even though it took months of officer training and was said by a police official in May to be largely ineffective.
While the proposed law in Anchorage could eventually come to be viewed as mere silliness, it doesn't change the fact that in this instance, its proposal was clearly in response to one person who seemed particularly effective at getting under the thin skin of city officials.
Who knows? Anchorage's sit-lie might as well have been named "Martin's Law." Anchorage Assembly members seemed to recognize the law's holes when it postponed voting on it -- effectively killing it -- once the media circus surrounding Martin had subsided.
Balancing public safety with constitutional rights
More recently, on Aug. 30, Anchorage Assemblyman Dick Traini proposed an amendment to city law that would suspend the chauffeur's license of any cab driver charged with sexual assault, a response to the recent arrest of cab driver Chidiebere Nwokorie.
Nwokorie is accused of picking a woman up in his cab on Aug. 21, taking her to a cab service yard near Ship Creek and sexually assaulting her.
Currently, getting a chauffeur's license requires a background check that disqualifies a person for numerous reasons -- including assault-related misdemeanors and felonies and sexual abuse of a minor -- in the five years prior to the application. A registered sex offender is also ineligible for a chauffeur's license.
"The proposed ordinance uses the same definition adopted by the Assembly for sexual offences in the licensing of ice cream vendors," Traini said in introducing the amendment.
While the proposed law is a direct response to a current public concern, there is another concern that the law could interfere with the due process clause of the Fifth Amendment of the U.S. Constitution. The language of the proposed law is as follows:
The Transportation Inspector shall suspend the chauffeur's license upon receipt of evidence or complaint sufficient to cause the Transportation Inspector to conclude by a preponderance of the evidence (i.e., that it is more likely than not) the chauffeur used a regulated vehicle, chauffeur license, or uniform to gain physical proximity or the trust of the victim for criminally offensive sexual behavior by the chauffeur. If the Transportation Inspector’s conclusion is supported by the circumstances of an arrest, the suspension shall be immediate. The suspension shall continue until final judicial adjudication of the arrest, unless the Transportation Inspector makes a written finding that restrictions have been judicially imposed on the chauffeur for the period until final judicial adjudication of the arrest is complete, the public is best protected by the judicially imposed restrictions, and the public trust is preserved.
If the cab company that employs a driver charged with sexual assault wishes to suspend that employee following the accusation, that's one thing, but a city ordinance mandating the suspension of a license -- as a criminal trial extends over months or years -- raises a question of potential constitutional issues.
Enter, again, the ACLU of Alaska, which took note of the potential flaws in this knee-jerk legislation, however well intentioned it may be.
Jeff Mittman, executive director for the ACLU of Alaska, said that they were aware of the proposal.
"The ACLU has reviewed the proposed amendment," Mittman said, "and has reached out to Assembly member Traini and are discussing some potential changes to it." Mittman added that the goal is that "the safety of the public is balanced with citizens' constitutional rights."
A public hearing on the proposed law will be held on Sept. 13.
