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Off the Record

A forum for an exchange of opinions managed by editorial writer Doug Clark.

November 5, 2009

Greensboro's loitering ordinance might pass legal muster; Winston-Salem's doesn't

 A Winston-Salem ordinance that prohibits "loitering for the purpose of engaging in drug-related activity" is "unconstitutional on grounds of overbreadth and vagueness," the N.C. Court of Appeals ruled Tuesday.

Greensboro has an ordinance that is virtually identical except for one statement that City Attorney Terry Wood believes would let it pass legal muster.

Here's the Greensboro ordinance:

Sec. 18-46.  Loitering for the purpose of engaging in drug-related activity. 

(a)   For the purposes of this section, "public place" means any area generally accessible to the public for common usage and access, including any street, sidewalk, bridge, alley or alleyway, plaza, park, playground, driveway, parking lot or transportation facility, the doorways and entranceways, stairway, hall, courtyard, passageway or common area to any building which fronts on any of those places, or a motor vehicle in or on any of those places, or any property owned by the City of Greensboro.
(b)   It shall be unlawful for a person to remain or wander about in a public place in a manner and under circumstances manifesting the intent to engage in a violation of any subdivision of the North Carolina Controlled Substances Act, N.C. Gen. Stat. Chapter 90, Article 5. When done with the intent of violation of the aforementioned statutes, such circumstances shall include:
(1)   Repeatedly beckoning to, stopping, or attempting to stop passers-by, or repeatedly attempting to engage passers-by in conversation; or
(2)   Repeatedly stopping or attempting to stop motor vehicles; or
(3)   Repeatedly interfering with the free passage of other persons; or
(4)   Such person behaves in such a manner as to raise a reasonable suspicion that he or she is about to engage in or is engaged in an unlawful drug-related activity; or
(5)   Such person repeatedly passes to or receives from passers-by, whether on foot or in a vehicle, or by courier, money or objects; or
(6)   Such person takes flight upon the approach or appearance of a law-enforcement officer; or
(7)   Such person is at a location frequented by persons who use, possess, or sell drugs.
 
I put the key passage in bold, which is contained in the Greensboro code but not Winston-Salem's.
 
The court faulted the W-S ordinance because it "does not require proof of intent to violate a drug law."
 
The Greensboro ordinance does.
 
Without requiring proof of intent, W-S "attempts to curb drug activity by criminalizing constitutionally permissible conduct," the court said. A person could be socializing at a community event and find himself arrested for "repeatedly attempting to engage passersby in conversation," the opinion written by Judge Robert N. Hunter Jr. of Greensboro said. He went on to offer other examples of perfectly legal behavior that could be misconstrued as violations of the ordinance.
 
In Greensboro, it appears someone has to be in pretty clear violation of drug laws to be charged with a violation of this loitering statute. No one would be charged simply with the loitering violation without also being hit with a more serious offense.
 
Wood said his staff is reviewing the decision to see if changes ought to be made, but right now "we have a pretty high comfort level with our ordinance."
 
 
 

 

Old gas-guzzlers for new gas-guzzlers

Cash-for-Clunkers was touted as a hugely successful federal government initiative -- both economic stimulus and environmental bonus.

Or maybe not, says today's AP story.

(Associated Press continues to do excellent work lately testing claims from Washington against reality.)

In more than 8,000 transactions, vehicle owners simply swapped an old Ford F-150 pickup truck for a new one.

"The fuel economy for the new trucks ranged from 15 mpg to 17 mpg based on engine size and other factors, an improvement of just 1 mpg to 3 mpg over the clunkers," AP notes.

And this was subsidized with tax dollars.

On that point, an analysis by Edmunds.com found the government spent $24,000 per vehicle under the program.

Virginia, New Jersey ... and Maine?

I guess when you're at the top, everyone shoots at you.

Not only were Republican victories yesterday in Virginia and New Jersey gubernatorial races portrayed as a referendum on President Obama's liberal agenda, but now it's supposedly his fault that voters in Maine repudiated same-sex marriage.

 AP reports:

"Stunned and angry, national gay rights leaders Wednesday blamed scare-mongering ads — and President Barack Obama's lack of engagement — for a bitter election setback in Maine that could alter the dynamics for both sides in the gay-marriage debate."

So Obama was supposed to campaign in Maine on this issue? Would that have made a difference? Would he take that kind of political risk?

More likely, it would have let his critics hang another big loss around the president's neck.

 

November 4, 2009

A Wynner for federal court of appeals

President Obama has nominated two North Carolina judges to vacant seats on the 4th Circuit U.S. Court of Appeals in Richmond.

Sen. Kay Hagan, D-N.C., made the announcement minutes ago.

They are Jim Wynn of the N.C. Court of Appeals and  Albert Diaz of the N.C. Business Court in Charlotte.

I don't know much about Diaz, but Wynn is a very deserving choice. He's certainly distinguished himself for many years in our state court system and as a high-ranking U.S. military judge.

He was nominated for this same position by President Clinton but blocked by the late Sen. Jesse Helms -- not one of Helms' better ideas.

This time the confirmation process should proceed smoothly. I would expect Republican Sen. Richard Burr to join Hagan in supporting Wynn.

Addendum, 1:10 p.m., a statement by Sen. Burr:

“The President has nominated two North Carolinians with distinguished backgrounds to serve on the Fourth Circuit Court of Appeals, Judges Albert Diaz and James Wynn.  I greatly respect the fact that both of these men have served our nation in uniform, and I look forward to working with them as the confirmation process unfolds.  Since coming to the Senate, I have fought for greater representation for North Carolina on the United States Court of Appeals, and I plan to continue that fight for the people of North Carolina.  I am pleased that the President has recognized North Carolina’s historic under-representation on this important court, and has taken action to address it. "

Burr certainly shouldn't be expected to pronounce an immediate judgment, but he sounds very positive. And Wynn and Diaz aren't suprise choices.

Rashad Young and the High Point Market

Please go to our Opinion page to see my video interview with Greensboro's new city manager, Rashad Young.

It was taped Oct. 21, when Young had been on the job for less than a week, so it wasn't meant to dig down on major issues. Rather, it's intended to introduce you to Young, giving an idea of his personality and interests, and let you listen to his impressions of Greensboro and get some sense of his approach to managing.

Also worth watching is the High Point Market's video report of last month's event. It provides a look inside the showrooms, as well as all the facts, figures ... and spin.

Attendance was down about 20,000 from the 2006 high of 95,000, not surprising given the lagging economy. But Brian Casey makes a valid point that High Point is still the place where the industry's creative energy is generated -- a point I made in a column Oct. 21.

Damning information about driver in fatal hit-and-run

Lorraine's story today presents damning information against Grayson Dawson of Eden, the driver who authorities allege struck and killed bicyclist David Sherman on North Church Street Oct. 24.

First, she was still driving the same vehicle two days later -- even though her license is revoked, according to the charges against her. This bolsters the argument that her release on an unsecured bond of only $5,000 was a foolish mistake. If the experience of (allegedly) killing someone with her motor vehicle won't stop her from driving, how can anyone believe she won't continue to drive until she's kept behind bars?

Much worse, though, is the statement by an area shopkeeper that Dawson explained the damage to her vehicle, including a caved-in windshield, by saying she'd hit a deer.

A deer riding a bicycle? How could anyone mistake a cyclist for a deer? It's unbelievable.

Or did a man's life not mean any more to her than a deer's?

If, of course, it was Dawson whose reckless driving caused Sherman's death. That's for the courts to decide.

But this information surely will strengthen the case prosecutors can put to a jury.

John McCain's revenge in Greensboro?

No, I don't think Bill Knight really represents a second chance for last year's Republican presidential candidate, who was swamped in Greensboro by Barack Obama.

As Mark notes, Knight and a strong majority of the newly elected City Council members are registered Republicans.

But municipal elections are nonpartisan, and the issues that motivate voters are local.

Still, the N.C. Democratic Party backed Yvonne Johnson, so her surprising defeat wasn't good for that political brand.

The big races nationally, of course, were gubernatorial contests in Virginia and New Jersey -- both won by Republicans after Obama campaigned for the Democratic candidates. That's not an encouraging omen for the White House or congressional Dems.

Then there's New York Mayor Michael Bloomberg, an independent who won re-election after spending nearly $100 million in his campaign ... showing that money trumps political affiliation any day.

Johnson's loss can be blamed partly on low turnout in her strongest districts -- 1 and 2 -- which dropped by close to a thousand voters from 2007. But altogether, she collected about 2,100 fewer votes this time around despite an overall increase in the number of voters (thanks to the Cardinal annexation). So there were other things going on.

Some of it probably was partisan, but surely not in a way that reflects on Obama.

I'll bet if he had been on the ballot again today, turnout in Districts 1 and 2 would have picked up enough to put more wind in Johnson's sails.

No matter. Knight obviously got out the vote and earned his victory. Congratulations to him and all the winners. They'll have the chance to put Greensboro on a different course.

 

November 3, 2009

The legal vs. the political

A key point from last week's judicial selection debate at Elon Law School:

"Highlighting the recent state Supreme Court decision in State v Bowden, affirming that life sentences were defined as 80 years for those individuals convicted during a five year period in the 1970s, Exum said the justices decided the case correctly according to the law, but that the decision could have an impact in elections.

“ 'The decision was legally correct, but politically it is absolute dynamite,' Exum said. 'If the members of the court were up for election in November, do you think any of them would survive? Probably not. If you want judges to decide cases according to the law, then it seems to me to follow that we don’t want judges to be subject to being recalled by a popular vote of the people on the basis of the decision that they made.' ”

"Exum" is retired N.C. Supreme Court Chief Justice James G. Exum Jr. of Greensboro.

I think he's exactly right. If any judges involved in the Bowden case were unlucky enough to be on the ballot today (none was), defeat would be probable -- for making a decision that's sound according to law but politically unpopular.

On the other hand, as Elon law prof Scott Gaylord argued, a judicial appointment process opens the door to political patronage.

No easy answers.

I'm sorry I missed this debate. My father-in-law, Bill McFarland, died the same evening. A retired attorney from Columbus, N.C., Bill loved the law and no doubt would have enjoyed the event himself.

 

 

'Peaceful as evensong'

High Point's once-dangerous West End section is "now as peaceful as evensong," says the eminent British journal The Economist in its Oct. 22 edition.

It's the latest acclamation for the city's innovative anti-crime initiative, which truly has made a difference, not just in West End but in several troubled High Point neighborhoods.

But let's not get carried away.

A quick look at the High Point Police Department's P2C Web site finds 186 incidents over the last three months within one-half mile of English Road Baptist Church in the heart of West End. They include plenty of burglaries, larcenies, assaults, robberies and drug offenses.

The Economist uses what it labels High Point's "velvet glove" approach to make a point that tough punishment is a less effective response to crime than reasoning and second chances.

High Point police have taken the second route in many cases, sometimes with good results. But they can't afford to go easy on serious crime.

West End isn't far from my home and, despite improvements there, I don't feel comfortable even driving through the area at night. I sure don't hear any evensong.

Conviction would warrant prison time for cyclist's death

It's outrageous that this woman was driving Oct. 24 when bicyclist David Sherman was struck and killed on North Church Street.

Her license was revoked, and she still had charges pending from more than two years ago for other alleged violations. Where's the accountability?

If she's convicted on the new charges, she should receive a significant prison sentence, as did Timothy Lane Meadows of Greensboro last week for a similar incident.

Meadows pleaded guilty to involuntary manslaughter and felonious hit-and-run for an accident in High Point that killed Maria Victoria Maldonado and injured eight other people. He was sentenced to 34 to 41 months in prison.

That should be in the ballpark for Grayson Warren Dawson of Eden.

 

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