Overcriminalization

Drop That Red Cup! City Criminalizes College Parties

A misdemeanor to be 'present at, attend or participate in a loud or unruly gathering.'

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College life may include studying late in the library, going to class in pajamas, ultimate Frisbee, or engaging in an age-old college tradition: the college house party.

"We've had a couple here, My roommate really likes the Risky Business theme." says Nick Quandt, a resident of Orange, California, and a student at Chapman University. "Sometimes you'll get back to the house around nine o'clock and there'll be a couple freshman at your house that think the party starts at nine o'clock and nobody else gets there till eleven."

The parties happen as often as you'd expect in a college town, but not everyone is happy about them. Orange residents at a city council meeting April 12, 2016, described college students urinating and vomiting in front yards that were not their own and noise that went well into the night. Even city council members like Fred Whitaker have experienced the behavior.

"You had probably 400 kids that were in a backyard about 3 blocks from my house," said Whitaker, who along with the rest of the city council helped to pass a new ordinance that tightens rules on loud and unruly parties which, according to Whitaker, are so bad they affect neighbors' ability to enjoy their own property. He says it come down to the question of "How do you create incentives to not have people affect other people's rights?"

Violates the Constitution

The ordinance sounds reasonable on its face (Who wants someone peeing in their front yard?), until you look at the details. The ordinance makes it unlawful for any person to be "present at, attend or participate in a loud or unruly gathering," and to do so in a way that "contributes" to the gathering. According to city code, the punishment could be hundreds of dollars worth of fines and the violation amounts to a misdemeanor.

"There are important consequences to a misdemeanor conviction or any criminal record," says Erwin Chemerinsky, Dean of the University of California, Irvine, Law School. "This isn't gentle by any means."

Wayne Winthers, the city attorney for Orange gave a little more insight into what contributing might mean at the city council meeting, April 12, saying "The individual has to be doing something more than just walking by at the time […] Some indication that they are contributing to the party. They may be with their red cup or they're jumping up and down to the music or whatever it might be, but, something so an officer has to observe something more than just mere presence."

So holding a red cup or dancing at a loud or unruly party could mean you are guilty of a crime? The ordinance didn't seem specific enough to answer "no" to this sort of question. "It's just so vague," says Quandt. "And also […] blatantly directed at college students."

"I think the reason that you don't want it to be that specific is because the more specific you get it, the more you can game the system," says Whitaker. Instead, the ordinance gives discretion to the officers on the scene to decide if someone is participating in the party. "It's a 'when you see it, you know it' [situation]," says Whitaker.

"To say we will leave it to the discretion of the officer to decide what's unruly by itself says this ordinance violates the constitution," says Chemerinsky, who also points out that part of the problem with the ordinance is that it is not clearly written, "It says 'to do so in a manner that contributes to the loud or unruly gathering.' I assume just by being there you're contributing to the gathering. Is more required than that? The ordinance doesn't say."

That lack of specificity means practically anyone could be guilty of a criminal behavior. Chemerinsky says that under the constitution, any law must be clear as to what is allowed and what is prohibited. "In fact one of the concerns is that officers would have too much discretion and be able to use it in a discriminatory way."

Broken Windows Theory

Whitaker says the ordinance comes from the Broken Windows Theory of law enforcement, which suggests that stopping petty crime helps stop major crime. The theory was first made popular in a 1982 article in The Atlantic by professors George L. Kelling and James Q. Wilson.

But constitutional law scholars, criminologists and even police oversight institutions who have looked at the theory since the 1980s are skeptical. In fact, a study released in June 2016 from the Office of the Inspector General for the New York Police Department (OIG-NYPD) found that between 2010 and 2015 there was no empirical evidence showing a clear link between enforcement of low-level petty crimes and a drop in the felony crime rate. Further, the OIG-NYPD worried that bring these low-level offenders into the criminal justice system would have negative effects on the rest of their lives. Chemerinsky says enforcement of the Orange party ordinance according to the Broken Windows Theory would do the same thing.

"There are lifelong consequences to [individuals] ending up with criminal records even if it is for minor offenses," says Chemerinsky who also adds that there is often a discriminatory effect of the Broken Windows Theory. "It's often individuals of color, African Americans and Latinos, who get charged with these minor crimes and suffer the lifelong consequences of the convictions."

The Orange Police Department (OPD) said that an independent report has never been commissioned by the city to see if the Broken Windows Theory was working there. However, they did win an award in 2015 named after James Q. Wilson, one of the professors who originated the theory. The award, presented by a local policing organization, was won by the OPD for its approach to dealing with people with mental health issues.

Freedom and Responsibility

Chapman University said in a statment that the school "and its students are members of the Orange community, and the University continually encourages our students to respect the community and act as good neighbors. Chapman supports the efforts brought forth by the citizens of the City of Orange regarding this ordinance. The University has served as an active participant in discussions surrounding this topic through our Neighborhood Advisory Committee and has also encouraged our students to utilize their collective voice to address City Council directly with their concerns."

Chapman students have spoken at city council meetings during public comment sections, and it isn't as if they are completely oblivious to the problems their parties sometimes produce. "There are some parties that get out of hand and those should be contained," says Quandt. "[But] Having friends over during college, you're supposed to interact in a social environment. That's how you develop, that's what college is about, and what the ordinance is doing is really restricting that."

Whitaker says he thinks the ordinance creates a world where people will be free to have peace in their own homes. "Freedom depends upon everybody having responsibility and acting responsibly."

"Everyone should act responsibly," says Chemerinsky. "The question is when should the criminal law come in."

The law goes into effect this week after the Orange city council unanimously passed the ordinance.

Aproximately 9:07.

Music by Goodbye Kumiko, Bird Creek, Kevin MacLeod, The Underscore Orkestra.

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