Rejecting the ACLU’s legal arguments, the U.S. Court of Appeals for the First Circuit yesterday upheld the constitutionality of the Town of Narragansett’s highly-publicized “orange sticker” ordinance. However, in upholding the ordinance on its face, the court acknowledged that it could still be subject to constitutional challenge in its application to particular cases, and the ACLU plans to go back to court to pursue those challenges.
The ordinance authorizes police both to charge tenants and landlords for allowing “unruly gatherings,” and to place orange stickers on houses that have allegedly been the site of such gatherings. Under the ordinance, the orange sticker cannot be removed until the end of the school year without financial penalty, regardless of the presence or absence of the original ‘unruly’ tenants who allegedly engaged in a violation of the law. The lawsuit, filed in 2008 by ACLU volunteer attorney H. Jefferson Melish, was on behalf of the URI Student Senate, as well as four students and three landlords who have been affected by enforcement of the ordinance.
Among other things, the ACLU argued that the ordinance violated the plaintiffs’ due process rights by allowing police to affix the large orange stickers to the front door of a rental property with no opportunity for a hearing either before or after the posting. In upholding the ordinance, the appellate court acknowledged that it was “uneasy about the absence of a hearing,” but that the “mere possibility of misuse is insufficient to invalidate an ordinance” on its face.
In a crucial part of the opinion from the ACLU’s perspective, the court clarified that “the prosecution most prove that a gathering creating a substantial disturbance involving a violation of law occurred both at the time of the initial posting and when the subsequent intervention took place. Police intervention at a residence is not enough, by itself, to establish an Ordinance violation.” This, said Melish, should help to limit the number of unjust prosecutions under the ordinance. A number of cases have been in limbo pending the outcome of this legal challenge, and the ACLU plans on representing some students in state court on the charges brought against them under the ordinance. At those proceedings, the ACLU will raise constitutional objections to the way the ordinance has been applied, objections that the appellate court recognized remain available.
RI ACLU attorney Melish said: “We continue to believe that fundamental principles of due process should require the availability of a hearing process for individuals to challenge an ‘orange sticker’ posting by the police, and we are disappointed that the court ruled otherwise. At the same time, I believe that, in our representation of some of the students who have been charged under this ordinance, we will ultimately limit the Town’s ability to use it as arbitrarily as it had been doing.”
Additional Documents: URI "Orange Sticker" First Circuit Court Decision
