Memorandum

City of Lawrence

Legal Department

TO:	Toni Ramirez Wheeler, Director of the Legal Department
FROM:	Scott J. Miller, Staff Attorney
Date:	November 16, 2010
RE:	Summary Memo – Charter Ordinance 42 and Ordinance 8582

I am writing this summary memorandum to provide an overview of the contents of the cover memorandum for Charter Ordinance 42 and Ordinance 8582.  For a complete discussion of Kansas law and the provisions of those ordinances, please refer to the cover memorandum.

Charter Ordinance 42 exempts the City of Lawrence from the application of K.S.A. 12-4211 and 12-4212, the statutes that govern arrests for municipal offenses, and Ordinance 8582 provides substitute arrest provisions that would ensure that arrests in the City for misdemeanor offenses are governed by one consistent standard.

The law that establishes the procedures that apply to Kansas municipal courts is a non-uniform enactment.  Under the home rule powers granted by the Kansas Constitution, cities may exempt themselves from this type of enactment by the passage of a charter ordinance.

Under this law, the power of law enforcement officers to make arrests for municipal code violations is diminished when compared to their power to arrest for misdemeanor violations of the Kansas criminal code.  This creates several difficulties.  In some situations, law enforcement officers are unable to arrest for violations of ordinances like our noise ordinance or fire code no matter how many times an individual violates the law, even if the violations occur one immediately after another.  The officers may only respond to the situation and issue citations.  This means that the police are unable to provide neighborhoods with adequate relief in some circumstances, and must continually respond to the same calls for service at the same locations.

Also, police officers do not have the ability to conduct searches incident to lawful arrests unless someone is actually arrested.  These searches, a well established exception under the Fourth Amendment to the requirement that a search warrant be obtained prior to a search, are a valuable tool to retrieve evidence in an expeditious manner at the scene of a crime. 

Applying the arrest standards found in the Kansas criminal code to municipal code violations would be lawful under the Federal constitution, just as they are lawful when applied to misdemeanor offenses committed under state law.  Having one unified set of standards would benefit the City in a pair of ways.  Currently, police are trained in two sets of arrest standards that are closely related but significantly diverge in some ways.  A consistent standard would reduce the possibility of police error in arrest decisions.  Also, the municipal arrest statutes are drafted using terms that are very similar to terms of art used in Constitutional jurisprudence.  While the terms, such as “detention”, are very similar, the legal standards that apply are very different.  This leads to the possibility of significant confusion and misapplication of the law.  This confusion is eliminated under the draft ordinances.

Just because police officers would have the power to custodially arrest a suspect in appropriate circumstances does not mean that they would arrest every time that they could.  Many times police officers exercise sound discretion and address criminal behavior that could lead to arrest through the issuance of notices to appear.  Doing so allows police officers to get back into service and answer other calls more quickly than booking an arrestee into jail does.

Because these changes would lead to more efficient law enforcement in Lawrence, are permissible under Kansas law and fit squarely within Constitutional standards, staff recommends their adoption.