Last Updated on August 15, 2023, 12:42 AM | Published: November 20, 2022
This guest opinion piece is by Nick Brooke, the principal data scientist of Brooke Insights, a mathematics consultancy in Oklahoma City.
In 2015, the City of Oklahoma City passed an unconstitutional anti-panhandling ordinance. When the city was sued, the Oklahoma City Council spared no taxpayer expense to hire outside counsel to defend the doomed law to the bitter end. In August 2021, after all appeals had been exhausted, a judge ordered the city to pay another $985,000 in legal fees to the ACLU, who represented the plaintiff who sued.
Undeterred, this Tuesday, the Council will consider two new ordinances by Councilmembers Stonecipher, Carter and Stone.
A Saturday report from The Oklahoman focuses on the encampment ordinance. I direct your attention to proposed changes to the trespassing ordinance, which are somehow even worse. If passed, it would criminalize an astonishing number of things that you & I do every day.
Here, the city would define trespassing as “each and every actual entry upon public or private property without a verifiable legal right to enter or remain on the property.” Now “verifiable legal right” is a phrase that I’ve not heard before, particularly with respect to when I’m allowed to be outside. Fortunately, the ordinance defines this new phrase.
Any person who enters or remains on private property—that’s you—who claims a right to be present on the property must have verifiable proof; without proof, a prima facie case of trespass on private property is established. (“Prima facie” means “first sight;” legalese for, “well, duh.” The presumption can be rebutted at trial, long after you’ve been arrested.)
If I’m grilling in my own backyard, which is private property, a cop can demand “verifiable proof” of my right to be there; if I can’t produce my mortgage, now I’m trespassing. What does the city do to trespassers?
Cops can take you to jail for trespassing. And not a good jail, either—Oklahoma County!
Would you stand for such treatment? Should taking your neighbor’s recycling bin in from the curb without a permission slip be a crime? Trick-or-treating? Idling in the parking lot of a closed business while you take a phone call? Kids camping out in the backyard at a sleepover?
Of course not.
You and I would not stand to be accosted by some goon while we go about our private business. Yet, these freedom-loving conservatives have proposed an ordinance that would empower the Oklahoma City Police Department to arrest and jail anyone on private property who can’t prove on demand that they have a right to be where they are.
I’ve heard this somewhere before: In English, it’s usually translated “papers, please.”
The “wink, wink” in the ordinance is that it’s not meant to be enforced against you and me, only our neighbors experiencing homelessness.
To be complacent about this because you’re not today’s target is to be ignorant of history. To make everyone guilty of a crime and vest a police agency with sweeping power to decide who to arrest makes for a police state—when that police agency is already under federal investigation for civil rights violations, I’d watch out.
If the laws don’t apply to everyone equally, eventually, the state will decide to apply them to you: OKC blacks, Latinos, and political protesters, you’re on deck.
Enforcing the proposed law exactly as written against everyone would lead to widespread civil unrest; enforcing it only against the homeless who can’t defend themselves violates the equal protection clause of the Fourteenth Amendment. Aware of this, the city ends the ordinance with a fig leaf to assure courts that Oklahoma City totally respects the rule of law
Tacking on a “psyche!” clause to the end of your unconstitutional law will not secure victory—in federal court, our Constitution trumps your silly ordinance. If Stonecipher, Carter, and Stone want to cough up another million dollars to the ACLU, they should open their own checkbooks this time and leave our tax dollars out of it.
