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Court disarms cities in drug war

The Florida Supreme Court has taken away one of the most effective law enforcement tools against open-air drug markets. With out-of-touch legal principles and openly hostile attitudes toward the police, a 4-3 majority of the court struck down Tampa's innovative and effective anti-drug loitering ordinance and therefore effectively prevented Florida cities from closing down these markets.

The Tampa ordinance prohibited loitering for the purpose of buying or selling drugs (another Tampa law, struck down by the court the same day, prohibited loitering for the purpose of prostitution).

It also provided the police with a non-exhaustive list of circumstances that may suggest an intent to loiter for such a criminal purpose. Florida cities that have adopted similar ordinances include Jacksonville, Hialeah, Sanford and Melbourne.

The ordinance was adopted in response to the efforts of people like the Rev. Abe Brown and Linda Hope. Brown runs Prison Crusade Inc., a group of ex-offenders helping those using and trafficking in drugs to become productive, law-abiding citizens. His efforts have led to numerous civic citations and a story in Readers Digest.

Hope volunteers much of her time with the Sulphur Springs Action League, a grass-roots organization committed to drug eradication and education and prevention programs. Hope was called to testify before the House Select Committee on Narcotics, about successful grass-roots efforts to combat drug markets.

Brown and Hope were concerned with the proliferation of open-air drug markets with the advent of crack cocaine.

Once established in a neighborhood, public drug trafficking brings increased fear and intimidation, along with increased noise, traffic, litter and temptation for addicts and minors. As the horrendous stories in the daily newspapers indicate, they also bring gunfire and senseless violence.

Brown, Hope and the Tampa City Council saw that "buy-and-busts" were not shutting down public drug markets. Furthermore, buy-and-busts were complicated, time-consuming and vulnerable to compromise.

Thanks to efforts of community leaders and the leadership of Mayor Sandra Freedman, the police in Tampa were encouraged to specifically focus on flagrant drug trafficking. The police increased street patrols, shut down nuisance properties, secured abandoned properties and enforced the city's anti-drug loitering law.

At the time the anti-drug loitering ordinance was passed, some critics charged that it would be used in a discriminatory manner. However, there has been no evidence of any police abuse of the law, either in Tampa or elsewhere. There have been no complaints of police misconduct or any record of a wrongful arrest under the ordinance.

The proof is in the pudding: Those who have been tried for violating the law have been convicted.

Before the Florida Supreme Court, however, community efforts and the record of balanced and effective enforcement of the ordinance were irrelevant. The majority pointed out that the ordinance could be read to prohibit talking and waving to others, ignoring the fact that neither the defendant before the court nor anyone else has been arrested under the ordinance for such innocent conduct.

In its zeal to strike down the Tampa ordinance, the court assumed the worst motivation on the part of the City Council, assumed a police force completely out of control, cast aside the relevant precedent and ignored the most elementary principles of statutory construction and judicial restraint _ which calls on courts to interpret a law so as to preserve its constitutionality.

The concurring opinion by Justice Gerald Kogan struck down the ordinance because it contained the word "loitering."

If he would have gotten down from his ivory tower and actually looked at what was going on, he would have seen that the current genre of laws prohibiting loitering for a specific criminal purpose have nothing to do with the broad loitering laws of the past. Indeed, not even the ACLU asserts that there is a constitutional right to stand on the street corner for the purpose of selling illicit drugs.

Both opinions simply ignored the interests of the residents of neighborhoods suffering from the ravages of an open-air drug market. Not one sentence of the opinion mentioned their plight, or demonstrated even the slightest recognition of how drug markets operate, or what they do to a neighborhood, despite a "friend of the court" brief filed by Prison Crusade and the Sulphur Springs Action League.

The court just did not get it.

These ordinances are not strange or rare. They have been adopted in numerous cities across the country, including Seattle; Tacoma, Wash.; Harrisburg, Pa.; Baltimore, Kalamazoo, Mich.; Minneapolis; Norfolk, Va.; El Paso, Texas; Dallas; and Alexandria, Va. _ as well as in Melbourne, Sanford and Hialeah. Civil liberties are, of course, alive and well in all of these places. They also have been routinely upheld when challenged in courts, including the Washington state Supreme Court and appellate courts in North Carolina, Ohio and Wisconsin.

The amicus curiae brief noted that the case tested whether the courts would respond to the community's wish for a safe environment. The court has answered that question, furthering criticism that activist judges are more concerned about the rights of criminal defendants than about the rights of law-abiding residents.

The Florida Supreme Court will move on to other issues. However, for Brown and Hope, there is now the task of explaining to residents why their efforts to combat drug markets are not worthy of acknowledgement by the court, and why they must do without one of the most useful tools in their efforts to improve the safety of their communities.

Robert Teir is the general counsel of the American Alliance for Rights and Responsibilities in Washington, D.C.

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