Orange County, Calif., Republican Party Chairman Fred Whitaker got into GOP politics because of his "belief in individual liberty, limited government and a free market," according to the party's web site. Yet his latest actions as an Orange city councilman show little regard for liberty, governmental limits or the Constitution's "right to peaceably assemble."
His support of an expanded party ordinance that criminalizes kids who merely show up at a loud party is an example of something I've seen repeatedly in my coverage of municipal government: Officials who claim to believe in liberty in general, yet who don't see the inconsistency as they impose specific laws that expand government power in troubling ways.
The Orange ordinance is designed to combat "loud and unruly conduct" and underage drinking. As it currently exists, the law seems reasonable enough, given that the old-town area abuts a major university. Officials say they need a way to disperse parties that have begun to resemble scenes from John Belushi's "Animal House."
But on a 5-0 vote, the City Council is transforming a reasonable statute into something heavy handed. The new measure must still be approved on a second reading next month.
Currently, it's "unlawful for a host to knowingly hold or allow a party at which there is loud and unruly conduct and/or to permit underage drinking." If you host a party that becomes out of control, you might receive a citation. But the revised ordinance adds this line: "It is unlawful and a violation of this chapter for any person to be present at, attend or participate in a party where loud or unruly conduct is taking place."
Let's say you go to a person's house, or are delivering something or just passing through. The party gets loud and the police are called. Under this ordinance, you would be breaking the law. We aren't talking about bad behaviors like public urination or underage drinking, which already are illegal. We're talking about merely being present at a too-loud party.
Moreover, this would not just be an infraction like a parking ticket. Violations "shall constitute a misdemeanor," according to the city's ordinance. Some job applications ask if a person has been convicted of any crime. Should college kids be tagged with diminished job prospects simply for being at a party? These citations will typically be pleaded down to infractions, but this is still problematic.
"If someone has the risk of something bad happening to them, they'll think twice about being there," Whitaker told me. The goal is to discourage kids from attending loud parties. Currently, he added, it's too easy for the party hosts to evade responsibility. By allowing the police to cite partygoers, it provides pressure for people to turn in the party's hosts.
That may be so, but this is fundamentally unjust and legally problematic. University of California Irvine Law School Dean Erwin Chemerinsky said the measure is vulnerable to a challenge: "This creates liability just for being there even if the person is doing nothing else."
And since when is our system designed to impose sentences and fines on people as a way to pressure them into pointing the fingers at others? Whitaker touted an aspect of the measure that gives private citizens an expanded right to sue their neighbors where parties take place, which is an odd approach for a leader of a party that targets lawsuit abuse.
Orange Councilman Mike Alvarez assured me the police will only use this new measure to clamp down on mega-parties with hundreds of students in attendance. But nothing in the statute applies such limits. It's unlikely, but one could—under the statute's broad wording—face a misdemeanor for a too-loud child's birthday party. Alvarez said the police aren't doing enough under the current law. Then what's the point in adding new laws without first enforcing the old ones? There are many other possible approaches that are less troubling, from a civil-liberties perspective.
Although an absentee owner can't face criminal charges for a party, landlords can face fines. As a landlord myself, I know how limited I am in controlling what goes on after tenants lease my home. The existing ordinance punishes party throwers for more than one "loud and unruly" party in a 10-day period. The new ordinance puts a two-party-a-year limit on the books. If that is violated, property owners could be forced to pay police costs, which can be quite hefty in a world of six-figure police salaries and mega-pensions.
"This will never withstand legal challenge as it violates the Bill of Rights' guarantee of freedom of assembly," said former Orange Councilman Denis Bilodeau. Now a board member of the Orange Tax Payers Association, he said the group plans a challenge. But it shouldn't take a lawsuit to convince elected officials—especially Republicans who claim to believe in due process and liberty—to put the kibosh on this noxious measure.