ACLU Files Legal Challenge to Salida Ordinance
That Prohibits Adults From Spending More Than
Five Minutes in a Public Place After 11 P.M.
FOR IMMEDIATE RELEASE
September 2, 1997
The American Civil Liberties Union of Colorado (ACLU) has filed a legal challenge to a controversial new Salida ordinance that prohibits adults from spending more than five minutes in a public place after 11 p.m. The ordinance, enacted by the Salida City Council on May 19, outlaws "loitering," which is defined as remaining in one location for over five minutes. The ordinance defines "one location" as "any two points within two hundred feet of each other."
Salida police have charged 22 individuals with violating the ordinance since its enactment.
The ACLU represents Josh Edelstein, 25, who lives in a downtown apartment located above a business. Edelstein was standing on the sidewalk in front of his apartment saying goodbye to some friends when he received a ticket on June 11. The ticket charges that Mr. Edelstein "stayed in an area of less than two hundred feet for more than five minutes."
In a motion to dismiss filed by ACLU volunteer cooperating attorney Ernest Marquez of Salida, the ACLU argues that the government has no lawful power to impose a curfew on adults, nor does it have the power to require that adults "keep moving" to avoid spending more than five minutes in one location.
"This ordinance makes it a crime to wait for a ride in front of a downtown theater after the late show lets out," Marquez said. "The Constitution does not permit the government to pass a law that transforms such ordinary innocent activity into a criminal offense."
Judge William Alderton will hear evidence and argument on the ACLU’s motion at 8:30 a.m. Wednesday morning.
The loitering ordinance has produced dissension and division in the small town of Salida, which is located about two and a half hours southwest of Denver. On Friday August 22, 120 residents staged a "loiter-in" at 11 p.m. to protest the ordinance and to sign a petition urging its repeal. Several businesses have offered discounts to patrons who can produce a ticket for loitering issued by the police.
The new ordinance is a toned-down version of a proposal that survived a first reading at a city council meeting last spring. As originally drafted, the ordinance prohibited "lingering," "tarrying," or "standing idly about" and applied at all times of the day as well as the night. On April 18, the ACLU wrote to the City Council explaining that the proposed measure would violate clearly-established constitutional precedents.
In response to concerns raised by the ACLU, the City Council revised the ordinance so that the final version defines "loitering" more precisely and makes it a crime only after 11 p.m. According to the ACLU, however, the improvements are not sufficient. "In essence, this ordinance establishes an 11 p.m. curfew for the entire community," said Mark Silverstein, ACLU Legal Director. "No court in the country has ever approved a law that establishes a general curfew for adults. On the contrary, the courts have consistently reaffirmed that one of our most cherished liberties is the freedom to take a simple nighttime stroll through the city without having to produce papers or otherwise answer to the police."
The introductory paragraph of the Salida ordinance states that it was enacted in response to problems caused by late-night gatherings that led to fights, disturbances of the peace, and public drug and alcohol abuse. "The City of Salida has every right to enact ordinances that target such problems," Silverstein said. "But the City cannot do so by trampling unnecessarily on the civil liberties of innocent people who are peacefully enjoying a summer evening."
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