Memorandum

City of Lawrence

Legal Services

TO:	David L. Corliss, Interim City Manager
FROM:	Scott J. Miller, Staff Attorney
Date:	September 6, 2006
RE:	Ordinance 8021 – Revisions to Public Offense Code

Table of Contents

Introduction 1

Section 14-204 – General Penalty 2

Section 14-301 – Criminal Trespass 2

Section 14-304 – Theft 2

Section 14-306 – Theft of Lost or Mislaid Property 2

Section 14-307 – Theft of Services 2

Section 14-308 – Criminal Deprivation of Property 2

Section 14-311 – Interference with the Conduct of Public Business in a Public Building 2

Section 14-403 – Unlawful Assembly 2

Section 14-403.1 – Remaining at an Unlawful Assembly 2

Section 14-404 – Missiles 2

Section 14-405 – Carrying Concealed Weapons 2

Section 14-407 – Discharging Firearms 2

Section 14-502 – Interference with Duties of Police of Other Public Officer 2

Section 14-503 – Permission to Communicate With Prisoners 2

Section 14-504 – Prisoners Escaping from Custody 2

Section 14-505 – Escape from Custody; Aiding 2

Section 14-603 – Window Peeping 2

Conclusion 2

Introduction

Recently, you assigned me the task of taking a critical look at the City of Lawrence Public Offense Code, found in Chapter 14 of the City Code, to determine whether any of its provisions needed legislative attention. In response, I examined each of the provisions of that chapter to determine whether any amendments needed to be made to retain continuity between the Kansas Statutes and our ordinances. I also analyzed them to determine whether any technical changes could improve their enforceability or administration. As a result, I am recommending that several ordinances be amended or repealed. I will discuss each of these ordinances in turn.

Section 14-204 – General Penalty

The City Code of the City of Lawrence has two general penalty provisions, one found in Section 14-204 of the City Code and the other at Section 1-112. General penalty provisions apply to ordinances that do not have individual penalty provisions contained within them. Unfortunately, our two general penalty provisions are not consistent with one another. Section 14-204 imposes fines between $25 and $500 per offense, or a jail sentence of up to one year, or both. Section 1-112 on the other hand, specifies that violators be fined in an amount between $1 and $1000 or spend up to six months in jail, or both. The Section 14-204 penalty only applies to Chapter 14 violations while Section 1-112 applies to violations in other sections, so no legal problem is created merely by having two different penalty provisions. The amount of the penalty in Section 14-204, though, does give rise to some potential issues that should be addressed.

The Section 1-112 penalty provision generally specifies a penalty range identical to a Class B misdemeanor under Kansas law. The Section 14-204 penalty, on the other hand, has a maximum fine equivalent to those imposed for Class C misdemeanors and a jail term equivalent to Class A misdemeanors. This creates a potential problem when a city ordinance in the public offense code and a state statute both illegalize the same thing, but when no specific penalty is set forth in the City ordinance. In City of Junction City v. Cadoret, 263 Kan. 164 (1996), the Court, in deciding a case concerning municipal court jurisdiction, restated the rules that determine whether a city ordinance and state statute conflict with one another. The Cadoret opinion addressed the scenario of a city ordinance and a state statute that both prohibit the same conduct. The two enactments will be held to conflict with one another when both enactments prohibit identical conduct but the city ordinance punishes the conduct to a lesser extent than the state statute.

The problem with the Section 14-204 general penalty in the Lawrence City Code is that it does not precisely match up with the crime severity levels set forth in the Kansas Statutes, and therefore its actual utility as a general penalty is severely limited. There are three levels of misdemeanor offenses under Kansas law. Class A misdemeanors are the most serious and Class B and Class C misdemeanors carry successively lower penalties. Of the crimes that most people would immediately call to mind if asked to name misdemeanor criminal offenses, most carry penalties greater than Class C. These are the types of offenses, by and large, that are contained in our public offense code. Because of the $500 maximum fine in Section 14-204, only offenses that would be classified as Class C misdemeanors and Lawrence-specific offenses could lawfully be subject to the general penalty of that section.

In order to make the two general penalty provisions in the City Code more consistent, and to allow them to be useful in more situations I have proposed amending the Section 14-204 general penalty to mirror the one found in Section 1-112. This makes it useable in more circumstances, as it is legal for the City to impose sentences that are more stringent that the equivalent Kansas penalty. This general penalty provision would then be useable for all crimes classified as Class C or Class B misdemeanors under Kansas law. It also will eliminate any confusion caused by having two general penalty sections.

Section 14-301 – Criminal Trespass

The proposed amendments to this ordinance are aimed at harmonizing its provisions with the Kansas criminal trespass statute. In addition, the Lawrence-specific prohibition against roof trespass is preserved. The primary changes include adopting certain definitions found in the Kansas Statues by reference, providing guidance regarding which types of restraining orders can trigger a criminal trespass conviction, and inclusion of a provision that protects access to health care facilities. Also, land surveyors are granted an exception from the provisions of the ordinance when they are actively engaged in making a survey. Each of the proposed changes currently exists in Kansas law.

Section 14-304 – Theft

Theft, as it is defined by K.S.A. 21-3701, is a Class A misdemeanor and the court may sentence a person convicted of such a violation in District Court to a fine not to exceed $2500 and up to one year in jail. Our current ordinance does not have an individual penalty provision and the general penalty, as discussed above, is not sufficient to legally cover Class A misdemeanors. Therefore, I am proposing in the draft ordinance that a separate penalty provision be included to set the municipal penalties at a level identical to those in the Kansas Statutes.

Section 14-306 – Theft of Lost or Mislaid Property

Theft of Lost or Mislaid Property is also a Class A misdemeanor under Kansas law. The proposed amendment to this section merely inserts a penalty provision into the ordinance that includes equivalent penalties.

Section 14-307 – Theft of Services

The proposed version of this ordinance makes three substantive changes to the old ordinance language in an attempt to square it with Kansas statutory language. The first change involves the inclusion of a definition for the word tampering. The old version of the ordinance covered theft of services by tampering, but failed to provide a definition of the term. Under the proposed ordinance, theft of services by tampering is still illegal, and tampering has a specific definition. The definition includes illegal connection to utility or cable television service or transmission lines; defacing, modifying or altering utility meters; knowingly taking unmeasured gas or electric service or unauthorized cable television or telephone service that has not been authorized; or permitting, aiding or abetting another person to commit these acts.

The second change is the inclusion of a rebuttable presumption that the person receiving the benefits of any unauthorized connection or other violation of the terms of the ordinance intentionally did so. This type of presumption is often included for crimes where the prosecution is obligated to prove the defendant’s specific intent to commit the criminal act. For example, we have similar presumptions contained in Section 14-305 of the City Code for the crime of theft. The effect of a rebuttable presumption of prima facie evidence is to allow the prosecution to survive a motion for a directed verdict at the close of its evidence on the issue of intent.

Finally, a penalty provision is included in the proposed ordinance reflecting this crime’s classification as a Class A misdemeanor in Kansas law.

Section 14-308 – Criminal Deprivation of Property

The sole change to this ordinance is the inclusion of a penalty provision to ensure that the offense is punished commensurate with similar offenses under state law.

Section 14-311 – Interference with the Conduct of Public Business in a Public Building

There are two differences between the proposed ordinance and the current ordinance, but neither substantially changes the operation of the ordinance. The first modifies the language used to set forth a specific intent element, changing the word “willfully” to the more commonly used “intentionally.” This should have little effect on the operation of the ordinance.

Additionally, this crime is a Class A misdemeanor under Kansas law, so a penalty provision setting forth equivalent punishments for its violation is added to the ordinance.

Section 14-403 – Unlawful Assembly

Our current City Code section entitled “unlawful assembly” is very expansive. It applies to any group of two or more people who assemble to do any unlawful act against the person or property of another or the public’s peace, or who are lawfully assembled and then agree to conduct an unlawful act if any movement or preparation for the act is made. To some extent it is merely duplicative of Sections 14-201 and 14-203 of the City Code. These sections impose criminal liability for an attempt to commit a crime (an overt act towards the commission of a crime by someone who intends to commit the crime) or aiding or abetting another to commit a crime (knowingly assisting in the attempt or commission of a violation of any City ordinance). Attempts and aiding and abetting are independent offenses that incur the general penalty of Section 14-204. Unlawful assembly as it is currently defined is also punished under the general penalty. Therefore, the existence of this ordinance has little effect except that it serves as the basis for the enhanced penalties for remaining at an unlawful assembly discussed in the next section.

Kansas law also contains an “unlawful assembly” crime that is both more limited in scope than the current ordinance and more precisely defined. It applies only to groups of five or more people. If such a group assembles for the purpose of engaging in disorderly conduct or riot, or agrees to perform such conduct while lawfully assembled, then the crime of unlawful assembly has been committed. For the purposes of consistency and in light of the fact that disorderly conduct and riot are explicitly defined in the law, I believe that it would be prudent to square our definition with the Kansas definition.

Section 14-403.1 – Remaining at an Unlawful Assembly

This offense augments the usefulness of the unlawful assembly charge by establishing a separate offense for failure to depart from an unlawful assembly. Under Kansas law, failure to depart from an unlawful assembly after being ordered to by a law enforcement officer is a Class A misdemeanor. Therefore, the proposed ordinance amends the current section of the City Code to include that penalty provision.

By classifying the penalties of the offense to be equivalent to those of a Class A misdemeanor, escalating penalties for continued noncompliance are created. In this way, the unlawful assembly scheme is able to provide something that the attempt and aiding and abetting ordinances are not set up to provide – penalties that increase beyond the level of the initial penalty for continued noncompliance. I believe that it may be for this reason that these crimes are contained in Kansas Statutes.

Section 14-404 – Missiles

This ordinance currently makes it illegal to throw, bat or propel a ball, stone or any hard substance against any building, vehicle or with the intent to strike any person or property. Many recognized sport or recreational activities, either as their object or as a legitimate tactic, include this sort of activity. As it was likely not the purpose of the ordinance to outlaw these sports or types of recreation, an exception has been included in the proposed version that allows for the behavior when all of the parties involved are conducting a consensual activity and where the risk of being struck by a thrown, batted or propelled ball is an inherent part of that activity.

Likewise, because some sports, like racquetball or handball, involve propelling a ball against a building with the intent to strike the wall of the building, an exception is made in the proposed ordinance if such activity is done with the consent of the owner of the building.

To my knowledge, no individual has ever been prosecuted under this section for any violation that the exceptions would cover, but refining the ordinance during this process to best reflect legislative intent seems prudent.

Section 14-405 – Carrying Concealed Weapons

Our current carrying concealed weapons ordinance is much less complex than the current Kansas statute on the subject, but as a result it probably does not do nearly as good of a job delineating the situations that are generally considered socially reasonable for carrying a concealed weapon, nor does it address the statutory changes made during the last legislative session regarding the licensed carrying of a concealed weapon. For this reason, it is my recommendation that the language of the recently amended Kansas carrying a concealed weapon statute be adopted as our municipal ordinance.

Currently, the only individuals allowed to carry concealed weapons under our City Code are officers of the law and deputies of those officers. This is much more limited than the Kansas statute. Watchmen while performing employment related duties, private detectives licensed to carry concealed weapons, member of the armed forces or National Guard while engaged in their duties, and people authorized under the Kansas Personal and Family Protection Act are all allowed to carry concealed weapons under Kansas law. The state law, on the other hand, is more restrictive when it comes to other concealed weapons, for example specifically limiting the concealment of knives to items less than 4 inches in length.

Passing the proposed ordinance would result in prohibitions no greater or less than the Kansas statute’s, and would be punished equivalent to a Class A misdemeanor.

Section 14-407 – Discharging Firearms

This section of the current City Code makes it illegal for any individual to discharge a firearm within the City unless that person is an officer of the law or a member of the Kansas National Guard during the course of his or her duties, or when the discharge takes place at a shooting gallery. The amended version of the ordinance inserts an additional exception for any person who is using a firearm to lawfully defend his or her person, property or dwelling.

Section 14-502 – Interference with Duties of Police of Other Public Officer

Section 14-502 of the City Code currently prohibits offering knowing or willful obstruction, opposition or resistance to any police officer or ministerial officer while such officer is engaged in the discharge of his or her duty. Some individuals reading the ordinance might express concern that it illegalizes otherwise constitutional activities. As with all ordinances, this ordinance is trumped by the United States and Kansas Constitutions, and cannot be read to prohibit the exercise of constitutional rights. Therefore, courts would place a limiting construction on the ordinance in appropriate situations. I believe that the term “ministerial officer” as used in the ordinance is meant to denote individuals involved in enforcement activities such as animal control and parking officers and fire investigators, but there is no definition of that term and it is left open for interpretation.

As a result, in the proposed version of the ordinance the term ministerial officer is replaced by language applying the prohibitions of the ordinance against obstruction and like activities to police officers and people authorized to serve process under federal, state or municipal law. This more clearly applies the ordinance to the individuals it was apparently meant to apply to while eliminating the potential vagueness of the former phrase.

In addition, obstruction of official duty is a Class A misdemeanor under Kansas law, so a provision has been included to give the offense an equal punishment under the City Code.

Section 14-503 – Permission to Communicate With Prisoners

As currently drafted, this ordinance prohibits communication with prisoners held at the city jail or in other places where prisoners are kept or working absent the permission of the Chief of Police or other person in charge of the city jail. Given that we have no city jail and to my knowledge do not utilize work details, this ordinance is not longer a necessary part of our City Code. Therefore, I recommend that it be repealed. If a future need is identified, then the ordinance can subsequently be redrafted to meet that need.

Section 14-504 – Prisoners Escaping from Custody

The current version of this code section reads, simply:

No person shall escape from the City jail or from lawful custody of any police officer.

While this code section has the virtue of simplicity, it does not define the most relevant terms – custody and escape. Therefore, the ordinance was redrafted to supply definitions for those terms and to make clear that an individual ordered into custody by the Municipal Court pending the arrival of law enforcement officers has an obligation to remain until he or she is physically taken into custody. The definition of escape also specifies that it includes failure to return to custody following leave, such as bereavement leave or work release, which is granted by the court.

Since escape from custody is a Class A misdemeanor under Kansas law, a penalty provision imposing equivalent penalties was also included in the ordinance.

Section 14-505 – Escape from Custody; Aiding

The presently effective section of the City Code prohibits acts that aid an escape from custody. The redrafted version of Section 14-504 applies not only to prisoners escaping from custody, but also any effort to knowingly aid or assist another person to escape from custody. Therefore, if the amended language for Section 14-504 is adopted, this section is no longer necessary and should be repealed.

Section 14-603 – Window Peeping

Presently, Section 14-603 of the City Code states:

It shall be unlawful for any person to trespass upon the property owned or occupied by another in the City for the purpose of looking or peeping into any window, door, skylight or other opening in a house, room or building, or to loiter in a public street, alley, parking lot or other public place for the purpose of wrongfully observing.

A close reading of the language suggests that several parts of the ordinance could be improved.

First, the current ordinance uses the word trespass. Trespass is a term of art used in both the criminal law and in civil tort law. Unfortunately, it can have slightly different meanings depending on the context in which it is used. Instead of using trespass, the redrafted ordinance uses the more explicit language “enter or remain upon property owned or lawfully occupied by another in the City without the occupant’s or, in the case of unoccupied property, the owner’s permission.”

Also, the draft ordinance deletes a portion of the current language that makes it illegal to “loiter in a public street, alley, parking lot or other public place for the purpose of wrongfully observing.” Neither the term “loiter” nor the term “wrongfully observing” is defined by the ordinance, and each may be subject to a wide range of possible interpretations. Certainly, I think that “wrongfully observing” might be so vague that the portion of the ordinance containing the term may not be constitutionally enforceable.

Although those terms may be susceptible to a more precise definition, generally individuals are held to have no reasonable expectation of privacy for activities conducted in plain view of streets, sidewalks and other similar public right of ways and individual owners or occupants are expected to take reasonable steps to protect their privacy in such situations. Please note, however, that in proper circumstances an accumulation of actions of this type might constitute stalking as that crime is defined by K.S.A. 21-3438.

Therefore, I recommend that the portion of the ordinance involving actions taken from a public place be deleted unless and until we are able to identify specific offensive behavior that requires additional action.

Conclusion

I realize that due to the amount of changes made in the proposed ordinance and the wide-ranging subject matter addressed that there will likely be questions that arise that are not clearly answered in this document. I stand ready to supply any clarification that is required. I believe that these proposed amendments significantly improve the legality and enforceability of our public offense code.