Candidate Claimed Such Laws Were Used to Harass Homeless People –
While Davis Columnist Bob Dunning may rate Mr. Watts as having a 22 billion to one shot at the city council, Mr. Watts has achieved what none of the other candidates have achieved to date, he has changed city law or he will if a consent agenda item passed on Tuesday night that introduces an ordinance repealing Section 26.01.010 of the Davis Municipal Code addressing annoying persons on streets and amending Section 26.01.100 addressing obscene language.
Mr. Watts laid out three options, the city can repeal the law, they can litigate, and the third option, “when I’m on city council, I’ll repeal the law myself.”
During public comments, Mr. Watts cited Cohen v. California and said:
“‘One man’s vulgarity is another man’s lyric.’ Words have emotive impact and using profanity, lewd words, and epithets, that says something. It expresses meaning, and there’s a reason why people use those words. So to put words off limits also puts certain ideas off limits. Even if you don’t those words, the ideas have a right to be expressed.”
In the latter code, he argued that in addition to using poor grammar, it is both vague and over-broad and the supreme court has used those criteria to strike down laws in first amendment cases. He cited an identical law from Cincinnati that was invalidated by the court in the early 1970s.
Harriet Steiner responded:
“I do agree that at least one of the ordinances that was mentioned is unconstitutional and has been unconstitutional since before I was the city attorney. As you know the council has not done a review of the code because we haven’t wanted to spend the time and energy doing it.”
The staff report also acknowledges the Coates v. City of Cincinnati case from 1971.
“A United States Supreme Court case invalidated a similar ordinance because it was vague, overbroad, and violated the right of free assembly and association. The ordinance at issue in that case made it a criminal offense for “three or more persons to assemble…on any of the sidewalks…and there conduct themselves in a manner annoying to persons passing by, or occupants of adjacent buildings.” Coates v. City of Cincinnati (1971) 402 U.S. 611. The Cincinnati ordinance was vague because it did not specify any standard of conduct, thus forcing persons to necessarily guess at its meaning. Moreover, it was broad enough to prohibit conduct that is protected by the Constitution. And finally, the Court concluded that a state cannot criminalize the exercise of the right to free assembly simply because that exercise may be annoying to some people.”
At the past candidates forum, Daniel Watts laid out why he believed it was important for laws to be removed from the books even if as the city claims, the police are not enforcing it. He claims that police often harass homeless people in Davis and they will often look through various city and state laws to find reasons to cite and harass the homeless. For that reason he believes that having such unconstitutional laws on the books represents a danger to the civil rights of all citizens.
According to both comments at the meeting from the City Attorney and the staff report, “The Davis Police Department does not currently enforce this ordinance.” However, the staff report recommends, that municipal code section 26.01.010 on annoying person on the street be repealed.
However, the staff reports recommends amendment to the ordinance on fighting words. The staff report says that the
“City may prohibit the use of “fighting words” – words that inflict injury or tend to incite an immediate breach of the peace. See Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 572. A California statute already criminalizes fighting words, providing punishment for “[a]ny person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.” Cal. Penal Code § 415. The City’s ordinance may be amended to clarify that it prohibits the use of words tending to incite an immediate breach of the peace.”
However, the City may not prohibit the use of words simply because they are offensive or distasteful.
Therefore the city attorney recommends Section 26.01.100 be amended to read:
While the city has not acted by the date Mr. Watts originally stipulated, March 29, having the city take actions by April 13, is rather remarkable. While this probably does not bump up the chances of Mr. Watts’ election in the eyes of Mr. Dunning, it does make him the first candidate in this election cycle to change municipal policy and that has to count for something.
—David M. Greenwald reporting