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Attorney rules Herndon day laborer deterrent effort unconstitutional
An effort to create a "pedestrian safety zone" to deter day laborers who congregate near the intersection of Elden Street and Alabama Drive in Herndon was deemed unconstitutional last week by the town's attorney.At a closed session on Aug. 6, the Herndon Town Council discussed HB 470, a bill introduced by Del. Vivian Watts (D-Annandale) and passed by the 2008 Virginia General Assembly, that allows towns and cities to prohibit loitering in the public right-of-way if it is determined to present a public safety hazard.
Town Attorney Richard Kaufman, advising the council on the bill’s application in establishing a "pedestrian safety zone" in Herndon, concluded that the bill as structured is unconstitutional. He recommended against its use to affect the presence of day workers on town streets.
"Many courts have invalidated loitering ordinances,” Kaufman stated in a confidential memo to the council that was made public.
According to the Connecticut General Assembly Office of Legislative Research, loitering laws in other states have been challenged on two constitutional grounds: vagueness and unreasonable restraint on personal liberty.
The vagueness issue seems to be the more common. The basic test in vagueness challenges is whether the ordinance clearly defines loitering and whether it provides explicit enforcement guidelines, that is, whether it limits arbitrary enforcement. If undefined, loitering could technically apply to such benign activities as window shopping.
"The [Town of Herndon] has spent considerable resources over a long period of time looking at the day labor issue. Fairfax County has as well," said former Herndon mayor Mike O'Reilly in an e-mail to The Times. "Every valid legal analysis concludes that people have a constitutional right to stand on public property and seek work. This is a right guaranteed by the Constitution of the United States to every person in the United States, regardless of their immigration status."
According to the memo, Kaufman recommended that the town seek a bill in the 2009 General Assembly to amend HB 470 to render it constitutional. He suggested that such a bill “remove the legally troublesome word ‘loitering’ and focus on specific behaviors that cause public safety hazards in streets.”
One such example of this type of specific wording is currently part of an anti-loitering ordinance in Oconee County, Georgia. That particular ordinance defines unlawful loitering behaviors as: "Any person who is in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity or under circumstances which cause a justifiable and reasonable alarm or immediate concern that such person is involved in unlawful activity."
Until we enact the Federal SAVE ACT (H.R.4088) enforcement only law, this kind of problem will keep raising its ugly head. We need strong government laws, instead the organized chaos of individual state laws county or city ordinances, because the Democrats refuse to enforce the laws already on the books. More funding! Compared with what taxpayers are spending now, which is well hidden? It will be PENNIES! Rep. Menendez is trying to derail the only 'Iron Gauntlet' law we have now. The E-verify system. If it doesn't become law by November, American citizens will be in competition with millions of more illegal cheap labor for jobs and growing OVERPOPULATION. Go to NUMBERSUSA, CAPSWEB to free fax and demand the Federal SAVE ACT!
Posted by Brittanicus
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