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ACLU Reporter: Fall 2002
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Table of Contents:
Victory For the First Amendment: 10th Circuit Upholds Public Forum on Main Street Plaza
Encouraging Morning At the Utah Supreme Court: Wendy Weaver
ACLU of Utah Hires New Director
Note From the Incoming Director
From Carol Gnade
Pioneer Park Project
On Location With the Men and Women of Law Enforcement or How I Spent My Summer Vacation
Homeless in Salt Lake City
Ogden’s Ten Commandments Monument Violates First Amendment
Victory For the First Amendment:
10th Circuit Upholds Public Forum on Main Street Plaza
by Dani Eyer
On October 9, 2002, the Tenth Circuit Court of Appeals in Colorado reversed
Judge Ted Stewart’s District Court decision and declared the sidewalks
on the Main Street Plaza a public forum to be regulated by the city, not
the LDS Church.
The case grew out of Salt Lake City’s ill-advised move under a previous administration to sell one block of downtown to a private entity, the LDS Church, while retaining an easement guaranteeing public access and passage.
The ACLU of Utah argued in court that the city overstepped its constitutional authority when it agreed to allow the LDS Church to use the sidewalks to communicate its own messages while prohibiting those who do not conform to the church’s views on religious, political, and moral issues from exercising their First Amendment rights on the plaza.
In January 2001, the District Court in Utah determined that the easement was no longer a public forum and that the restrictions were reasonable because the prohibited activities were incompatible with the property’s new purpose, an "ecclesiastical park." Judge Stewart also concluded that the LDS Church had greater rights on the easement than members of the public.
In a unanimous and clear decision, the Tenth Circuit Court of Appeals declared that the city’s easement is a pedestrian throughway, that it is a public forum, that the restrictions virtually ban speech, and therefore the restrictions are invalid. The court pointed out that a deed does not insulate government action from constitutional review and that, "the City, not the Church, has responsibility for regulating speech on the easement."
The court noted that an important factor in its analysis was whether the property had traditionally been the site of expressive activity by the public and concluded that the principal use of the plaza sidewalks had not been changed.
We were gratified to read the direct and unequivocal language of the Court of Appeals, which reinforced the importance of the fundamental concepts ignored by the City and the LDS Church during early negotiations and in the final transaction.
What happens now? The case was reversed and remanded to the lower court for compliance. The ACLU has been active in encouraging Salt Lake City to fulfill its obligation to comply with the constitutional mandates. In an open letter to Mayor Anderson on October 18, the ACLU of Utah noted that, "besides striking down the restrictions on the easement guaranteeing public use of the Plaza, the Tenth Circuit also provided some guidelines for new, constitutionally sound regulations that will balance all the competing interests." The court stated:
Governments routinely pursue public objectives in regulating the time, place and manner of speech on public fora without running afoul of the Constitution. Such legitimate objectives include public safety, accommodating competing uses of the easement, controlling the level and times of noise, and similar interests. Thus while the purpose of the forum is a pedestrian easement, the City may take the interests of the surrounding property owners into account in enacting regulations, and may seek to accommodate competing uses of the
As we noted in our open letter: Salt Lake City, the LDS Church, and the entire community now have the extraordinary opportunity to make of the Main Street Plaza a great public space -- the emblem of a city, a church, and a community confident in and open to the world of ideas that will find voice in this unique setting. We should not lament that this is what the Constitution requires; we should celebrate that this is what the Constitution protects.
ACLU of Utah Hires New Executive Director
The Board of Directors of the American Civil Liberties Union of Utah is pleased to announce that it has chosen Dani Eyer, an attorney, former bookstore owner, and public school teacher, to be the organization’s next executive director.
Jill Sheinberg, who chaired the ACLU of Utah’s search committee, cited Eyer’s credentials, enthusiasm, intelligence, and humor as some of the attributes that made her the committee’s unanimous choice to replace retiring director Carol Gnade.
“In addition to her numerous skills, Dani has a very strong commitment to the Bill of Rights. That, coupled with her Utah roots, makes her especially adept at understanding and negotiating the unique challenges we face.”
A graduate of the J. Reuben Clark Law School at Brigham Young University, Eyer was an attorney at the Provo law firm Howard, Lewis and Petersen and a law clerk for the Utah Attorney General’s Office before opening up the Atticus Bookstore and Coffeehouse in Provo.
“A bookstore is the literal manifestation of the core concepts of intellectual freedom and free expression,” Eyer said. “The link between any bookstore and the Bill of Rights is a direct one. There could not be a job more interesting, important, or fulfilling for me than to work as the director of the ACLU of Utah.”
Eyer will take the helm of the ACLU of Utah from Carol Gnade, who has served as executive director since 1992. Sheinberg noted that it was a tough task to find someone to replace Gnade.
“Under Carol’s leadership, the ACLU of Utah has become a very solid organization. We have safeguarded the rights of people in Utah time and time again, and it is a tribute to her that so many of our applicants thought the job of executive director of the ACLU to be the very best job in the state.”
Gnade, who has worked with Eyer over the past year, is pleased by the board’s decision. “Dani brings the enthusiasm necessary to what at times can be a pretty tough job. She really understands the issues, and the ACLU will benefit from her leadership.”
Other members of the search committee are Tim Chambless, Karen Denton, Lincoln Hobbs, Lee Martínez, Sue Marquardt, Andy McCullough, Janet Wolf, and Laurie Wood. Eyer, who is currently on staff at the ACLU of Utah, will formally assume her new position as the executive director on December 1, 2002.
Note From the Incoming Director
by Dani Eyer
There could not be a job more interesting, important, or fulfilling for me than to work as the director of the American Civil Liberties Union of Utah. As a high school teacher I taught classes called “American Problems” which included current events and politics. In law school and as an attorney I enjoyed working with complex legal issues. When I ran my own bookstore I was enthralled with books of course, but also with words, knowledge, study, inquiry, free thought, and free discussion. Last year I logged a few hundred hours doing volunteer legal research for the ACLU and after working on each new matter I came away with more enthusiasm for the work than when I began.
The ACLU of Utah is an extremely well functioning organization. The board of directors, legal panel, and cooperating attorneys comprise a dedicated group of people who work together furthering the goals of this affiliate. Janelle Eurick is an excellent staff attorney with a quick legal mind. I am sorry to see Cori Sutherland leaving, after years of hard work, to pursue one of her dreams. She has been and continues to be a wonderful deputy director with solid non-profit and people oriented skills, and is especially talented in writing with thoughtfulness and clarity about our complex issues. Our volunteers and interns are capable and invaluable. The membership is constant and supportive. The Utah affiliate of the ACLU will continue forward to defend again and again the basic civil liberties of all citizens.
In my brief affiliation with the ACLU I have had the opportunity to work with executive director Carol Gnade. As most of you know, better than I, she works extremely well with all sorts of people, the staff, the board, the membership, other non-profits, the press, and the public. She utilizes her years of experience to efficiently and thoughtfully deal with issues that pop up each day. Her name is synonymous with the ACLU of Utah. She has been entirely supportive of me in my role as “incoming” director, each day teaching me procedural matters and handing over substantive matters. I am extremely pleased, but not surprised, that Carol’s dedication to the ACLU of Utah includes her extended commitment to stay with the organization in a part-time capacity working on development and fundraising. I could not ask for a more willing and capable mentor.
These are invigorating times for the American Civil Liberties Union. The systematic restriction of basic civil liberties through government excess since 9/11 under the auspices of Homeland Security, the TIPS program, and the Patriot Act, along with secret detainees, deportations, and illegal surveillance remind us how important the work of the ACLU continues to be. In Utah we will persist in monitoring the activities of our government, in making renewed efforts to work with our legislature, and in raising the level of awareness of our citizenry on matters dealing with fundamental rights. We will continue to be vigilant in defending the civil liberties of all citizens.
I am extremely pleased and honored to take on the responsibility of directing the important work of the ACLU of Utah.
From Carol Gnade
Dear Members, Friends and Colleagues,
Last spring, after 11 years with the ACLU of Utah, I gave my resignation as executive director to our board of directors, effective at the end of this year. This organization has provided me with challenges and a richness of experiences that few people ever have the opportunity to know in their lifetime. This is the best job in Utah, or anywhere for that matter.
Since the beginning of my employment with the ACLU, my family has changed substantially. My three children have all graduated from college, married, and made me a proud grandmother six times. Unfortunately, all of them live in other states and I am missing too much. I have learned, too late, that I cannot postpone that which will not reoccur. I also need time to wander on the "blue highways" of the West and beyond.
I consider myself very fortunate to have met and worked with so many committed, talented, and thoughtful colleagues. None of this work could be done without the support of colleagues like Cori Sutherland and Janelle Eurick. Cori works quietly behind the scenes making everything come together effortlessly. There is little doubt that Cori will come back from her year sabbatical in Spain and continue to work effectively on issues of social change. Janelle, who has worked with me as both college intern and staff counsel, came right out of Lewis and Clark Law School and hit the ground running. Janelle’s first amendment work with the Olympics should be a model for any city taking on such an event. It was an added adventure to have worked with Stephen Clark while he skillfully framed our Main Street litigation. And finally, all of us in the ACLU of Utah office look to Brian Barnard for his historical wisdom on the many important civil liberties issues that we address. Brian and the ACLU make Utah a much better place to live. I could not have asked for a better support team.
It has been said that the ACLU is an endless relay race. We have come as far as we have because of many who ran the race before I entered it, and we will go far into the future because of those who run afterwards. No one can run this race forever, and all each of us can do is take the torch when we have the chance, and run with it as fast and as skillfully as possible, and then pass it on without dropping it.
Our board has done an exceptional job in searching for a new executive director. Dani Eyer, our incoming director, has worked with us as a volunteer for the past year. Dani’s commitment is great, she has a passion for our issues, and she is ready and willing to carry the torch. I look forward to working with her and supporting her as she takes on the challenge.
There are so many of you to thank Ð board members, community leaders, volunteers, cooperating attorneys, and our courageous plaintiffs... people with whom I have worked very closely over the past eleven years. You have added to my rich life because you gave me the opportunity to do good work that matters, in this beautiful yet difficult state, for this very special organization.
Pioneer Park Project
by Cori Sutherland, Deputy Director
In June, the ACLU of Utah and Crossroads Urban Center joined forces to begin a unique outreach and legal observer program specifically geared towards homeless communities in the Pioneer Park area. The program was in response to numerous complaints both of our agencies had received from homeless service providers in the area who were concerned about how the police treated their clients. What had been missing from these calls and what we hoped to find out were specifics so that we could both define the problems and come up with solutions.
The nearest green space to many homeless services, Pioneer Park is arguably the most used park in the city. Recent developments in the area have brought new pressures for those who have traditionally used the area. Just two blocks away, The Gateway opened last year; the Salvation Army sold its property just south of the park to the Hilton Hotel; and new high-end apartments and condominiums are being built across the street from the park. Add to this the ongoing discussion about how to “fix” the park, which many fear will mean making it inaccessible to those who use it today.
Homeless civil rights are not a new focus for our organizations. As the city prepared for last winter’s Olympic games, service providers and others were concerned that the city would try to clean up its image by sweeping homeless off the streets, or that services, largely housed near the Olympic transportation hub in Pioneer Park, would be inaccessible. News from the ACLU of Georgia about Atlanta’s successful efforts to pass ordinances criminalizing homelessness prior to the 1996 summer games was particularly worrisome. By and large, Salt Lake City presented its best self during the 2002 games, opening up an overflow shelter and keeping true to its promise not to sweep the streets.
Nationally, the ACLU has been involved in several cases challenging policies that unconstitutionally impact homeless populations, including successful challenges against police brutality toward and harassment of the homeless in Los Angeles; city ordinances making it illegal to sleep or lie down in public parks in Atlanta; and police sweeps in downtown Cleveland. In Miami, a class action lawsuit challenging the city’s policy of arresting homeless people for conduct such as sleeping, eating, and congregating in public and of confiscating and destroying their belongings, resulted in a landmark settlement that recognized that people cannot be denied fundamental constitutional rights simply because they are homeless.
Homelessness brings with it unique challenges, and like other cities in the country, Salt Lake City has its problems. Ordinances prohibiting loitering, trespassing, public intoxication, and littering can all disproportionately impact those who do not have homes in which to conduct their daily activities. Salt Lake City does have advantages over many other cities, namely a fairly open city government and police department. Indeed, it was the suggestion of a police sergeant that led to the implementation of our legal observer project in the Pioneer Park area.
In addition to representatives from the ACLU of Utah and Crossroads Urban Center, legal observers were from organizations housed near the park, such as Utah Issues and the Road Home. Others, like William Athey, were legal observers during the Winter Olympic Games. By collecting people’s stories - both good and bad - about their interactions with the police, and by witnessing these interactions first hand, legal observers hoped to answer the following questions:
1. Are there state laws or city or county ordinances that are being enforced that violate the civil rights of homeless individuals?
2. Are constitutional laws being enforced in a manner that disproportionately affects homeless individuals or those who may look like they are homeless?
3. Are police officers regularly employing excessive force or verbal abuse against the homeless or those who may look like they are homeless?
4. Does law enforcement thoroughly investigate crimes committed against homeless individuals?
5. Are private security officers acting as public law enforcement?
6. Are officers seizing homeless property?
As William reports, there are some extraordinary officers working in what are at times extremely challenging circumstances. Unfortunately, as Mandi’s stories indicate, there are those officers who create situations rather than resolve them, and whose inconsistent enforcement of the laws can create fear and hostility for those who live on the streets.
Neither the problems nor the solutions are simple, but the hope is that this ongoing project will ensure that efforts to ensure public safety do not result in what is essentially a separate police state for the homeless.
On Location With the Men and Women of Law Enforcement or How I Spent My Summer Vacation
by William Athey, ACLU of Utah Legal Observer
Has society become so conditioned to the plight of impoverished and/or mentally ill human beings self-medicating with drugs and alcohol that a jail cell is the only solution left? Are police officers sufficiently trained to deal with those who have been left behind, and even if they are; should the police be ultimately responsible for society’s failure? Has America returned to the days of debtor’s prisons? Is jail the modern substitute for an asylum?
I won’t attempt to address or answer these questions. I could, but I’ll leave that to more capable individuals. I recently sat down in the Salt Lake City Police Department Museum to speak with two Salt Lake City Police officers. The topics were the problems they encounter in Pioneer Park and the surrounding area. One officer is a veteran with many years of experience in the area. The other is less experienced, but well trained. Both officers impressed me on more than one occasion with their patience when they encountered a variety of difficult situations as I spent much of this past the summer watching cops interact with the people in and around Pioneer Park. So often the police are viewed with disdain or antagonism, unless their services are required and suddenly they become every citizen’s best friend. I saw four impressive officers in action time after time this summer. Due to conflicting schedules I could only interview two of them. Here is the police perspective on what the local media has described as, “drunken transients,” “heroin dealers” or “vagrants.” I’m the same as everyone else. I usually view the police with hostility and at times fear. These guys don’t fit the stereotype, just like I don’t fit the stereotype most associate with my appearance and as you will soon learn, the stereotypes surrounding the “denizens” of Pioneer Park.
Sergeant David Thurgood and Officer Ramon Maldonado were the officers “interrogated.” The first question was, “What are the problems you see in Pioneer Park?” Maldonado was the first to respond. “What I see, one of the problems with Pioneer Park, you have a lot of people together who are totally involved with drugs and alcohol. And, a lot of them have mental illnesses. They’re in an endless circle. We’re both (he points to Thurgood) Crisis Intervention Team members (more on the Crisis Intervention Team later). If they don’t have support from family or have some money from insurance, you need those two things to be successful with a mental illness or be in a permanent program. If they don’t have family to take care of them, they don’t have the financial means to keep up on their medication, they’re going to end up in the endless circle - being homeless, turning to alcohol. It’s hard enough just having a mental illness, schizophrenia, bi-polar, but then you add drug abuse and alcoholism; you’re just adding fuel to the fire. I see that as a big problem in the park. There are some Vietnam Veterans that have benefits. They have the means of getting their medication, but they’re alcoholics so they’re spending their money on alcohol instead of their medications.”
Sgt. Thurgood concurs with Maldonado. “I’ve been down in the shelter area, Pioneer Park almost my whole career. I see the same thing Chip (Maldonado) sees down there. I see a lot of mental illness…they self-medicate. When you go talk to some of these people, like Osker (Names are changed to protect the innocent.), it’s obvious. He needs to be in an institution. He has a career of being in all the prisons in California and now he’s starting up here. He’s definitely got some illnesses. The way he is, it’s going to turn him into a victim eventually. He’s going to light up on somebody while he’s high and bragging about smoking marijuana or doing coke and somebody’s going to end up getting him. That’s a problem we see in that whole area. Let’s not just concentrate on Pioneer Park. All the shelters around the country have the same problem we do - the drugs, the prostitution, the homelessness, the alcohol. We have feeding factors in that area. The liquor store is right up the street. Historically Pioneer Park has been the homeless haven. The alcoholics go hang out there. We’ve had lots of fights. Until the mid-80s we didn’t have a lot of drug dealing. In about ’88 or ’89 is when the drug dealing really took off down there. It changed the whole complexion. It’s not the people that live in the shelter. I feel for those people and most of those people are good people. There are others, people that have been there for ten years. I know these guys, they keep coming back and it’s the same people causing the same problems.”
At this point Maldonado commented specifically on the drug problem. “A lot of drugs are coming from the outside. I know of one group that was coming from Murray, they were arrested numerous times. I think the park is known around Salt Lake County as the place to go pick up drugs. It’s not the homeless that are buying the drugs. The outsiders come in, they’re selling the drugs there because the park has been known for so long…you put them in jail and a week later they’re out doing it again. Sometimes, if we do a big arrest, work on drugs several days in a row then it quiets down for maybe a couple of weeks and then all of a sudden, back again. I think the homeless people that are there using the park to relax or to drink, they’re just caught in the middle of it.”
Who is buying the drugs? Thurgood said, “When I worked narcotics years ago we went down there and made a point of getting the drug buyers. We arrested lawyers, nurses, physician’s assistants, mainly junkies and drug users, but a wide variety of people, all kinds of people. We were shocked.”
What about solutions to problems in the area? Thurgood had one simple solution, “Make society perfect.” He was sort of joking, but both officers supported Mayor Rocky Anderson’s ideas, from the proposal to place the Olympic Legacy Cultural Center in Pioneer Park to the more recent proposal of an ice rink. That might solve the drug problems. Drugs aren’t the only problem and Maldonado mentioned a news article he’d read about cuts to Valley Mental Health’s funding. Thurgood said, “It’s not illegal to be mentally ill and out on the streets. That’s another thing society needs to address. Being a CIT officer, Officer Maldonado is also, we deal with the issue of the mentally ill a lot. If you are causing harm for yourself or have the potential to harm others, under those circumstances we can take them off and try to get them stabilized in the psych ward at U Med.” Maldonado pointed out, “Two or three days. They look into it and determine, ‘where can we go from here.’ That’s when the issue of people who are successful with mental illness comes in, either they are in a treatment program or they have family supporting them and they have insurance and some money.” Thurgood later addressed what needs to take place to really “fix” the Pioneer Park area. “Fixing the problem would take cooperation from a lot of different agencies - the Shelter, Salvation Army, all the help groups, the Mayor, Police Chief, citizens - to get all that help costs a lot of money. I’d like to have twice the officers assigned in that area that we have now.”
There are people who don’t want help. Maldonado and Thurgood had numerous anecdotes about hard-core alcoholics and even people with good homes who hang around Pioneer Park because they enjoy the “lifestyle.” Both officers stated repeatedly that the homeless, people perhaps down on their luck or through some circumstance beyond their control temporarily without living space, they very rarely cause any problems. But, and several homeless people gave me the same information, a few are responsible for the majority of the problems and everyone suffers as a result.
Why are the police so active in the area? Accusations of police harassing the homeless led to my summer activities. Maldonado addressed the reason. “The downtown businesses have signed affidavits saying, ‘We don’t want people trespassing on our property after hours.’ The city has said, ‘No beer in the park.’ We have to enforce the law because if we didn’t, it would be a lot worse. It would be big party - drunk people would be getting hit by cars, all kinds of stuff. When we do cite the homeless people for trespass, open container, public intox, urinating in public - it’s for their safety and the public safety.” Thurgood checked in with “Part of the homeless society down there…part of them are victims. They are continually getting beat up and molested and whatnot. Then we have some people who are victimizers. They victimize everyone down there. We know a lot of those people, we’ve arrested them time and time again. They’ll spend a year or six months in jail, get out and they’re in the same cycle.”
What is CIT - the Crisis Intervention Team and Crisis Intervention Training? According to both officers there are between 50 and 60 CIT certified SLCPD officers at the present time. They go through 40 hours of training on how to deal with crisis situations and they are required to re-certify every two years. Thurgood reported, “We get training from doctors, nurses, we go down to the State Hospital for a day.” Suicide attempts, people cutting themselves with sharp instruments or “cutters,” people trying to hurt themselves for whatever reason, conflict resolution, different types of mental illness, different resources available - that is CIT training. Thurgood stated, “CIT officers can’t go down and do anything but check in with the mentally ill unless it’s a police related call. We’re not social workers, we can’t do any type of social work…Down by the shelter and in Pioneer Park it really doesn’t rise to the point of a crisis unless they’re really causing problems to society or themselves-running down the street with their hair on fire completely naked. ”
Maldonado gave some insight into how helpful the training is. “I think it’s really helped me understand more. We had two hours where we had to wear headphones and there was a group of, I think three people, who had schizophrenia. Now they’re taking their medications and they’re stabilized, but they made a tape of the voices they actually hear. We had to wear the headphones for two hours and the instructors gave us minor tasks to do, like they read us a story and we had to write down what we remembered from it. The people who made the tape said, ‘this is what we hear on a daily basis when we’re not on our meds. This is why it’s so difficult for us to concentrate.’ Before I was in the training I’d see people on the street who were talking to themselves and they were actually talking to another voice, but they had headphones on. The reason they have headphones on and turn the music up so loud is to get rid of, they try to drown out the voices they’re hearing. It helped me have a better understanding.”
Before completing this article with Maldonado and Thurgood explaining more about why they are in the Pioneer Park area and why five or six officers are sometimes present when St. Vincent de Paul serves lunch or the Salvation Army serves dinner I think it’s important for people to realize the same activities take place in other parts of town. Thurgood said, “We have almost the same problem on the eastside of town. What we call drunks are all up and down Fifth East and Sixth East. They don’t have their Pioneer Park or whatever to go to, they have all these derelict buildings they hang out in.” Maldonado said, “A lot of drugs will go from Pioneer Park to other parts of the city. When we do operations we see the buy start in Pioneer Park and go all the way up State Street to an apartment complex or a motel. Yesterday a couple of the bike guys followed a guy from Pioneer Park, that bought drugs, all the way down to South Temple and Tenth West in a neighborhood area to a pay phone where he set-up a deal.”
There are two sides to this story. The homeless people say the police are harassing them and in some cases they might be correct. However, Maldonado and Thurgood deny it and I would have to say, after watching them perform and after talking with them, they are not. “We don’t have time,” said Thurgood, “and why? There’s no point to it. Why would we go down there and harass people.”
Why are five cops watching people eat lunch at St. Vincent de Paul almost every day? Thurgood fielded the question after saying, “People need to be educated on what the cops do.” He continued with his answer, “There is an obvious reason. We’ve been assaulted in the food line.” Maldonado’s take is, “So many times before, when we were assigned to stand at the line, people would come up, jump right in the front of the line and if somebody said, ‘hey, you gotta get to the back of the line,’ they’d beat them up. There are numerous cops there because, if somebody attacks me I don’t want to be there alone.” Thurgood checked in with another explanation. “We’re there at the request of that agency. They almost demand it because of all the problems. Inside while they’re eating dinner too…the fights and the stabbings…I could go on and on…When a person is being combative we have five officers on them because, it’s for the safety of the prisoner and the safety of the officers. One on one, somebody’s really going to get hurt. Two or three guys on one combative person can get him safely on the ground, can cuff him safely, can do what they need to do without things getting out of hand. When you see four or five officers on one person they aren’t just over there enjoying themselves, just beating him up, it’s for the safety of the officers. I’ve been hurt several times, broken bones, been stabbed with a heroin syringe, had to go through all the AIDS testing…we can’t afford to lose the fight. We get killed, it’s not like a couple of teenagers in a bar and I like to go home at night.”
Homeless in Salt Lake City
by Mandi Janis, Anti-Hunger Advocate at Crossroads Urban Center
Crossroads Urban Center has a long history of interaction with and service to the homeless community of Salt Lake City through our emergency food pantry and thrift store. Over our years of service and involvement in the community, we have watched many of the places homeless people can go for services or simply rest from the streets close or transform into other types of service. These changes in the landscape of homeless services are reflected in the stories of improper treatment that we hear from our homeless clients. When the ACLU suggested a project observing the police treatment of Salt Lake’s homeless population, we joined the project in response to the stories from the streets that we have heard over the years.
In spite of our Gilligan-style ACLU observer hats, the homeless community finds us to be eager listeners and share their stories in their “I’ve got nothing to lose anyway” manner. Their stories have similar pieces echoed by others and reveal the simple daily facts of life - of life on the streets of Salt Lake City. And their daily realities are not mine and they are well aware that this is a societal division that lies between us.
In the blocks surrounding Pioneer Park are numerous “No Trespassing/No Loitering” signs, a fact that is easy to miss until one is faced with the difficult task of trying to conduct daily activities out in the open. In an effort to decrease crimes against homeless persons, ensure public safety, and stop illegal drug sales, there is a visible police presence in the area as well.
The large number of officers also results in increased citations for minor crimes such as jaywalking, trespassing, and loitering. For example, we interviewed seven people who, within just a two-week period in July, all received citations for sitting on or obstructing the sidewalk. Of the five cases where a copy of the citation was available to examine, all had been issued by a single officer. It seems officers can have varying interpretations of city ordinances and how they are to be enforced. However, it’s important for all of us to remember that even a small fine can have large consequences for someone on the streets.
Mark, a homeless man living in Salt Lake, draws my attention to what it is like to live in such an environment. “I’m constantly wondering if it’s legal for me to be where I’m at, cross the street the way I do, or enter a store or restaurant. Physically I am boxed in ... I’m not helping you people to be altruistic. I’m doing it because it’s the only way I can overcome my anger and hopelessness.”
Mark’s description of a visit to the food court at The Gateway on a rainy Sunday morning highlights the division between our realities: “Middle class people are free to go there and not be harassed by security. And if one of them buys something and their friend does not make a purchase the security does not ask their friend to leave. My friend was asked to leave by security because he was not making a purchase. This never happened to me back when I was an auditor, had money, a car, and a place to live. Not once were the people I accompanied to fast food places even looked at by a security person. Not once did I feel like I was doing something wrong. Today, however, the entire time I visited the food court I had the feeling of wrongdoing.”
It is clear Mark knows that blocking a sidewalk waiting for the shelter to open versus blocking a sidewalk waiting for Ticketmaster to open are not the same thing, that loitering under a shade tree on private property and loitering along a parade route are different, and that scurrying across lanes of traffic in a thrift store’s hand-me-downs versus a business suit will illicit a different response.
It is the suspecting stares and assuming glares - “this feeling of wrongdoing” - that eats away at Ken, a formerly homeless individual who lives in Salt Lake City. On recent walks to a bus stop or a neighborhood park, Ken has found himself approached by patrolling policemen as to what he was doing or as to what was in his water bottle. He responds to the policemen with smart remarks that do little to mask the anger he feels at such assuming inquiries and wonders if these are due to the homeless label he cannot shake despite his changed housing status.
Mark relays that Ken’s feelings are not isolated but felt across the homeless community. He describes that “at some level they [the police] take away homeless people’s dignity and occasionally infect us with violence and a sense of hopelessness. Violence begets more violence. Even legal violence. And continually telling people they’re worthless reinforces the idea that they are worthless and impedes them from rising out of their condition.”
These stories are eye-opening, revealing the depth of the homeless communities’ vulnerability and the even greater depth of discrimination found in our community. Mark’s internalization of this discrimination cuts to why he has chosen to work with the ACLU’s observer project. Glimpses of hope are returned to the homeless community with each story reported, with each “No Trespassing” sign removed, and with each night of peaceful rest on the streets of Salt Lake City.
Encouraging Morning At the Utah Supreme Court: Wendy Weaver
In October, the Utah Supreme Court heard oral argument in the second of two lawsuits involving Wendy Weaver, the Spanish Fork teacher who exercised her free speech rights in acknowledging that she was in a committed relationship with another woman.
The long-time and well-respected teacher gained national attention when she successfully sued the Nebo School District for requiring her to sign a gag order that essentially forced her to choose between the truth and free expression or her job. In the second lawsuit a group of Utah County citizens sought a declaratory judgment to have Weaver banned from teaching even though the local school board and the State Office of Education had never taken action against her. The lower court also refused the demands of the plaintiffs and they appealed.
Stephen Clark, former ACLU of Utah legal director, masterfully handled the arguments in the Utah Supreme Court and the Justices probed the citizens’ attorney with all the appropriate questions. Clark framed the legal issue pointing out, "the question that often arises at the intersection of ideological or cultural struggle and law: what is the proper role of the courts?" The Justices followed with
stinging questions to the opposition, essentially noting that the court could not fathom what the citizens were doing there and what had they hoped to accomplish. Was not this a matter for local school boards who follow well-defined procedures, and then ultimately for the ballot box if people were unhappy with a board’s decisions?
Clark illuminated the dark side of the issue: "Let there be no mistake, then: this lawsuit is part of an effort by Appellants and others who share their social, political, moral, and religious views about homosexuality to counter, deter, and punish people like Wendy."
An observer could reasonably infer that the Utah Supreme Court was not inclined to let that happen. The following week the Salt Lake Tribune editorialized about "self-appointed morals watchdogs" attempting to oust a good teacher, calling it "a witch hunt" and noting, "the laws of the land do not support the use of the courts to perpetuate such tactics."
The ACLU of Utah has been honored to participate in these important cases, defending free speech, due process, equal protection, and the rights of public school teachers. We optimistically await the formal decision by the Court.
Ogden’s Ten Commandments
Monument Violates First Amendment
by Janelle Eurick, ACLU of Utah Staff Attorney
In a landmark decision, the United States Court of Appeals for the Tenth Circuit ruled in July that Ogden City discriminated against the church of Summum in rejecting its Seven Principles Monument while at the same time displaying the Ten Commandments Monument on city property.
Local civil rights attorney Brian Barnard brought the case for Summum after Ogden City refused to allow the church to display its Seven Principles Monument next to the Ten Commandments Monument on the lawn outside the city’s municipal building. The case originated when Ogden City decided to locate the Ten Commandments Monument on municipal property. The monument was one of many donated to U.S. cities by the Fraternal Order of Eagles throughout the 1950’s and 1960’s. Barnard and Summum argued that Ogden City’s display of the Ten Commandments Monument violates Summum’s First Amendment right to be free from an establishment of religion and requested that the city remove the monument from municipal property. The City declined. Consequently, Summum asked the city to allow its own religious principles, the Seven Principles Monument, to be displayed on the municipal grounds. The city also rejected this proposal.
Barnard challenged the display both under the Establishment Clause and the Free Speech Clause of the First Amendment. The Utah District Court, which first reviewed the case, found that the Ten Commandments Monument is primarily secular in nature and that the city’s display did not violate the Establishment Clause. As to the Free Speech claim, the district court concluded that the monument contained the city’s own speech, and that to allow Summum to place the Seven Principles Monument on the municipal grounds would amount to allowing Summum to dictate the city’s own expression. Therefore, according to the district court, the display did not violate the Free Speech Clause of the First Amendment.
The Tenth Circuit Court of Appeals declined to review Summum’s Establishment Clause claim relying on the decision in Anderson v. Salt Lake City Corp., 475 F.2d. 29, 30-34 (10th Cir. 1973) that found that the Ten Commandments Monument displayed in Salt Lake City did not violate the Establishment Clause. However, the court called into doubt the health of the Anderson precedent in a footnote. The court stated that to the extent the Anderson decision was good law a proper en banc review of the decision in the future under the Establishment Clause analysis may require the Anderson case to be overruled, subsequently finding that Ten Commandments displays on public property violate the Establishment Clause and must be removed.
In a dramatic move, the court reversed the district court on the Free Speech Clause claim. The court found that the city had not adopted the Ten Commandments Monument as its own speech, and that without a compelling reason, the city could not discriminate between types of speech based upon viewpoint alone. The court concluded: “The Free Speech Clause of the First Amendment compels the City of Ogden to treat with equal dignity speech from divergent religious perspectives. On these facts, the City cannot display the Ten Commandments Monument while declining to display the Seven Principles Monument.”
In similar litigation, the ACLU of Nebraska recently asked the Eighth Circuit Court of Appeals to uphold a lower court ruling ordering government officials to remove the Ten Commandments Monument from a public park. Originally filed in May 2001, the ACLU’s lawsuit asks a federal district court to order the removal of the monument from the city-owned park because its presence violates the religious freedom guarantees of the Constitution. The court held that the monument, “sends the message to non-Jews and non-Christians that they are outsiders, not full members of the political community, and sends an accompanying message to adherents that they are insiders, favored members of the political community.” In its appellate brief, the ACLU of Nebraska cites more than 15 similar cases in which Ten Commandments displays on public property were ordered removed because they violated the establishment clause.
Because of the Tenth Circuit’s questioning of the Anderson precedent in Summum and similar precedent in other appeals courts, the ACLU of Utah and Barnard are investigating complaints from local residents who want the Ten Commandments displays in their cities removed from public property. In Tooele, for example, Brian Barnard successfully negotiated with the City to remove the Ten Commandments monument from city property in late August. If you are concerned about a Ten Commandments Monument located on public property in your city please contact our office.
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