Should this be unlawful?

[richalisoviejo]

Here in Aliso Viejo there is a small park for children, this park has a small sign at the entrance that says adults are prohibited unless they are accompanied by a child. One 47 year old woman whom I am representing didn’t see then sign when she entered the park and sat on a bench to read a book. Two Orange County Sheriffs officers asked her if she was with a child. When she said no, they gave her a ticket that could bring a $1,000 fine and 90 days in jail. The city parks department said the rule is designed to keep pedophiles out of city parks.

Now the Fourteenth Amendment provides:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Issue: Whether the city "rule" that criminally penalizes adults for entering a public park when unaccompanied by a child is unconstitutional on its face and/or as applied to my client?

 

[Itort]

Heil. The power that law enforement is enstrusted with seems be corrupting same. What would have happen if the officer had explained the reason for the rule and politely asked her to move on? I know they would have lost out on $1000 and maybe have to arrest a real criminal. They are chipping away at our liberties while "protecting" us.

 

[richalisoviejo]

Heil. The power that law enforement is enstrusted with seems be corrupting same. What would have happen if the officer had explained the reason for the rule and politely asked her to move on? I know they would have lost out on $1000 and maybe have to arrest a real criminal. They are chipping away at our liberties while "protecting" us.

Exactly Larry!

Fundamental right: Freedom of Movement

An adult's right to freely move about and stand still has been recognized as fundamental to a free society. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=405&invol=156
"[F]reedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it often makes all other rights meaningful--knowing, studying, arguing, exploring, conversing, observing and even thinking." Aptheker v. Secretary of State, 378 U.S. 500 (1964) (Douglas, J., concurring).

When a state has a strong interest in protecting minors, it may restrict their rights in ways in which they could not restrict adults' rights. Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944). Accordingly, it might makes some sense for the City to prohibit children from playing in a public park without adult supervision (for their own protection), but it makes no sense to make it a crime for an adult to be in a public place if unaccompanied by a child.

Before a municipality may enact valid legislation which infringes on a fundamental right like freedom of movement, the Government must prove a compelling need. Here, the City claims the rule is intended to keep pedophiles out of public parks--i.e., to protect children from pedophiles. Certainly, crime prevention and protecting children is a compelling state interest. But, the rule that prohibits ALL adults who are unaccompanied by children from entering a public park is NOT narrowly tailored to to the city's interest.

It is irrational to penalize all adults who are unaccompanied by children in public places as suspected pedophiles. The rule treats all of these adults as persons who criminally victimize children without probable cause to believe they are committing a crime. This runs contrary to the due process clause and the presumption of innocence.

The rule is unconstitutionally broad because it prohibits ALL adults (most of whom are not a threat to children) from entering public parks where children might be playing. The number of adults engaged in safe and innocent activity (e.g., sitting on a park bench reading a book) certainly outnumber the those engaged in criminal activity. The rule is not a narrowly tailored to the city's interest in protecting children from becoming the victims of pedophiles and is therefore an infringement on an the freedom of movement of adults.

 

[Maggie Cummings]

Is this the first time that woman ever saw that park? Does she just carry a book with her in case she comes across a park?
I don't like children and think they should be banned from all public places, but I also think that woman had to know the rules of that park. She had to have seen that sign at one time or another, or she's been walking around with her head up her (fill in your own word here)....she just thought the rules didn't apply to her and that drives me up the wall...
Also did the cops just discover her sitting there? Someone had to have called them and been afraid of her for some reason. I'm just thinkin the situation doesn't add up.

 

[Itort]

This describes what see happening with this and other "social protections". Bear in mind this warning was written over 150 years ago . In Volume II, Book 4, Chapter 6 of Democracy in America, de Tocqueville writes the following about soft despotism:

After having thus successively taken each member of the community in its powerful grasp and fashioned him at will, the supreme power then extends its arm over the whole community. It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.

I have always thought that servitude of the regular, quiet, and gentle kind which I have just described might be combined more easily than is commonly believed with some of the outward forms of freedom, and that it might even establish itself under the wing of the sovereignty of the people.

Our contemporaries are constantly excited by two conflicting passions: they want to be led, and they wish to remain free. As they cannot destroy either the one or the other of these contrary propensities, they strive to satisfy them both at once. They devise a sole, tutelary, and all-powerful form of government, but elected by the people. They combine the principle of centralization and that of popular sovereignty; this gives them a respite: they console themselves for being in tutelage by the reflection that they have chosen their own guardians. Every man allows himself to be put in leading-strings, because he sees that it is not a person or a class of persons, but the people at large who hold the end of his chain.

By this system the people shake off their state of dependence just long enough to select their master and then relapse into it again. A great many persons at the present day are quite contented with this sort of compromise between administrative despotism and the sovereignty of the people; and they think they have done enough for the protection of individual freedom when they have surrendered it to the power of the nation at large. This does not satisfy me: the nature of him I am to obey signifies less to me than the fact of extorted obedience. I do not deny, however, that a constitution of this kind appears to me to be infinitely preferable to one which, after having concentrated all the powers of government, should vest them in the hands of an irresponsible person or body of persons. Of all the forms that democratic despotism could assume, the latter would assuredly be the worst. [3]

 

[richalisoviejo]

Is this the first time that woman ever saw that park? Does she just carry a book with her in case she comes across a park?
I don't like children and think they should be banned from all public places, but I also think that woman had to know the rules of that park. She had to have seen that sign at one time or another, or she's been walking around with her head up her (fill in your own word here)....she just thought the rules didn't apply to her and that drives me up the wall...
Also did the cops just discover her sitting there? Someone had to have called them and been afraid of her for some reason. I'm just thinkin the situation doesn't add up.

Actually, that's a good question. However there is a sheriff sub division about two blocks from the park. This was a new city ordinance and the sign was put in place three weeks before she received the ticket. This is also a public park.

Providing public facilities (e.g., playground, park benches, public space) to one class of persons while excluding other classes of persons raises issues under the equal protection clause of the Fourteenth Amendment. Public grounds, swings, slides, teeter-totters, benches, etc., belong to the entire public to enjoy--not just children and their supervising adults. Most adults enjoy sitting on public benches in public parks, enjoy the fresh air and scenery, and enjoy watching children play in a public playground--and most of them are NOT pedophiles.

When analyzing issues that arise under the Fourteenth Amendment, the courts apply different levels of scrutiny. State laws that classify based on race, color, or nationality, or infringe fundamental rights are subjected to strict scrutiny. The state must have a compelling state interest and the means used must be necessary and narrowly tailored to serve that compelling interest.

Freedom of movement within society is a fundamental right.

Another interesting read;

In CITY OF CHICAGO v. MORALES, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=527&invol=41 527 U.S. 41 (1999), the United States Supreme Court considered Chicago's Gang Congregation Ordinance that prohibited "criminal street gang members" from loitering in public places. If a police officer observed a person whom the officer reasonably believed to be a gang member "loitering" in a public place with one or more persons, the officer would order them to disperse. Anyone who did not obey the disperse order violated the ordinance. The Court held that the city ordinance violated the Due Process Clause of the Fourteenth Amendment.

Unless the law is declared void for vagueness in violation of the due process clause as in CITY OF CHICAGO v. MORALES, each and every infringement upon your fundamental liberty interests--e.g., your freedom of movement--must be analyzed in accordance with the test established by the Supreme Court: Compelling state interest and necessary, narrowly-tailored means to serve that compelling state interest.

If a47 year old woman can’t legally sit on a bench in a public playground then Houston we have a problem.

 

[Madkins007]

Not a lawyer, so forgive me if this is pure BS!

1. "without due process"- if a law was enacted legally, following the accepted process, isn't that 'due process'?

2. There are a LOT of places on public, government land I cannot go to freely. City owned golf courses will force picnickers to move on. I cannot be in a park a minute after an arbitrary deadline. I cannot enter our city owned dog park unless I have a dog. Heck- there is a huge green area around our airport that has no signage and no fences- and if you dare to do anything there, the police will have a chat with you.

I think I would argue that the recent change in the park's status (3 weeks, you said?) means that the city should have done a better job publishing the change, and that there should be a grace period of warnings before tickets are written.

 

[richalisoviejo]

Not a lawyer, so forgive me if this is pure BS!

1. "without due process"- if a law was enacted legally, following the accepted process, isn't that 'due process'?

2. There are a LOT of places on public, government land I cannot go to freely. City owned golf courses will force picnickers to move on. I cannot be in a park a minute after an arbitrary deadline. I cannot enter our city owned dog park unless I have a dog. Heck- there is a huge green area around our airport that has no signage and no fences- and if you dare to do anything there, the police will have a chat with you.

I think I would argue that the recent change in the park's status (3 weeks, you said?) means that the city should have done a better job publishing the change, and that there should be a grace period of warnings before tickets are written.

Not at all, many laws are enacted illegally. The Consitution is the Supreme Law of the Land.

Due process has both a substantive and a procedural component. Substantive due process encompasses fundamental rights, a state may not deprive an individual of his/her fundamental right to life, liberty etc. unless a state has a compelling interest in doing so and the means used to meet that compelling interest are necessary and narrowly tailored to serve that compelling interest. Procedural due process encompasses notice and an opportunity to be heard.

Governments control a wide variety of properties with a wide variety of uses. Just as a government's authority to restrict individual speech varies, depending on the nature of the forum, so also should a government's authority to exclude individuals from areas or facilities under its control vary,depending on the nature of the property.

For example, where public streets or parks are concerned, the government's authority to exclude persons is weakest, and a correspondingly high governmental interest must be shown before an individual may be singled out and forced to leave, or prevented from obtaining access to, the area.

This is a misdemeanor or "petty" crime.

Nevertheless, if you're a minimum wage earner, you would have to work approximately 240 hours to accumulate enough net pay after taxes to pay a $1,000 fine.

A sentence of 90 days in jail is serious from a practical point of view. How many people could manage their family responsibilities, retain their employment, and/or pay their bills if they were sent to jail for three months?

More likely than not, a first offender would not be sentenced to jail and the court would reduce the fine. Nevertheless, it is possible that the maximum penalties allowed by law could be imposed upon the convicted offender.

The preservation of liberty of America, the land of the free requires eternal vigilance. As a country, we started out with the monumental promise of Equality, Life, Liberty, and the Pursuit of Happiness. And throughout our history, there have been those who have been working with their stealthy chisels to surreptitiously chip away at our freedoms while the sheeple graze in ignorant bliss. Chip, chip, chip.

 

[ZippyButter]

I think this country should has a stiffer punishment for pedophiles. Life sentence, perhaps. And I do believe prisoners have to work, to grow their own food, and not receiving any hand out from the government, which uses our tax dollars to take care of these criminals.

For those who lives there in Aliso Vijeo (SP), I would go directly to the city council meeting and let my voice heard. If you pay your property tax and many fees for the city, I think you have the right to use all of the public facilities, including all parks.....That was a cheap shot that the city council members pass that law for that city. When the budget is tight, they would think of anything to generate more money for their pocket, shame on those people.

 

[Chucky]

I would have asked the police officers where "their" child was. Then have them arrest themselves

 

[TKCARDANDCOIN]

Maggie3fan, was that a typo in your post?Did you really mean to say "I do not like children and think they should be banned from all public places"?

 

[Candy]

Doesn't this city ordinance violate the non-exclusionary property of public goods? Isn't this also age discrimination? Candy

 

[Laura]

I would of thought the sign was a joke.. humor.. unless it had the fines posted with it and explained the seriousness of it. Since when do pediphiles NOT have children? Stupid rule.
However.. Kids should not be allowed at a dog park.. especially real young ones.. that run around.. and dont even have a dog with them! just there likes its a zoo! Parents?!?!? come on....

 

[jdub]

Wow. That is outrageous.....i'm kind of surprised the cops didn't give the old lady a chance by asking her nicely if she saw the sign. It's understandable if the lady was causing a ruckus or being rude but in no way could an old lady harm anyone by reading a book. All i can say is wow...

Jason

 

[nrfitchett4]

because we all know that pedophiles follow the rules...

 

[Maggie Cummings]

Maggie3fan, was that a typo in your post?Did you really mean to say "I do not like children and think they should be banned from all public places"?

Yes, that's exactly what I said. I know that's not a popular view. But yes, I do not like children. I raised 2 sons who are now in their 40's and grew up to be great people. But I spanked them and taught them rules and manners and how to act. I taught them what was acceptable and what isn't. But most people nowadays don't discipline their children and they are allowed to act up in public...it's almost impossible anymore to have a meal in a restaurant without some kid making a fuss... crying or otherwise acting up. Go into the Safeway to shop, got kids running around acting up, go into the Kmart, it's the same thing. Kids today aren't taught how to act in public and are allowed to bother other people. I was recently in the Kmart and some woman had 3 kids, 2 were in the shopping cart and the third who was about 4 years old was running around screaming something I couldn't understand, he was obviously mad that he couldn't have something, he was grabbing stuff off the shelves and throwing them all over the floor. The mother was looking for shampoo or something and wasn't paying the least bit of attention to the wild one on the floor and both in the cart were crying. All 3 were still in pajamas. I think that's typical of todays parents.
Kids today aren't taught how to act. They have no manners and the parents don't care. Then those same kids who were never told "no" grow up to be the disruptive teenagers of today and the parents wonder why little Johnny is arrested and in juvenile hall...
It should start when kids are little. They should be taught how to act. They should be taught restraint, taught manners. They need to be taught self discipline. They need to be taught what is acceptable and what isn't.
tkcardandcoin...why do you ask? Am I not allowed to dislike children?

 

[Yvonne G]

And to respect other people's property. Amen, Maggie!!! I live on a corner where the school bus stops. Every day I have to go out there with a garbage bag and pick up candy papers and trash that the kids toss on the ground while waiting for the bus. In today's politically correct atmosphere parents are afraid to discipline their children.

Boy...did we ever get off topic!!

Yvonne

 

[TKCARDANDCOIN]

If I were you I would not categorize all children!There are children who are taught respect and manners and our 5 year old is one of them.I could go on about all the things I dont like about older people but i wont stoop to your level.If this site is going to condone biggotts like maggie and yvonne then I want no part of it...Picking up candy wrappers...please!What about all the beer cans and bottles from all the drunk idiots who choose to drink and drive.You should be more concerned about being hit by a drunk driver than a candy wrapper.Grow up!

 

[egyptiandan]

We need to start playing nice again Personal attacks won't be tolerated on the forum. We need to get back on topic or the thread will be closed.

Danny

 

[Yvonne G]

Since when is it wrong to have an opinion, tkcardandcoin?

Yvonne