Monday, Feb. 17, 2020
Pending changes to Boulder’s criminal code are drawing the ire of local activists who say the minor language revisions represent a major shift in power from the people to the police. The proposed tweaks come amid a months-long effort by the city to overhaul civilian oversight of the police department; lawyers for Boulder argue that they are not substantive.
Another alteration, too, appears to be a departure from city council directives on homelessness, one that will make it more difficult for people living in campers and RVs to park legally on city streets. City council is set to consider the code changes Tuesday on first reading.
Adjustments are being made to four sections of the municipal code, including 5-5-3, Obstructing a Police Officer or Firefighter. The first is to expand who counts as a peace officer to encompass EMTs, rescue specialists and volunteers.
The more problematic modifications, at least according to the Boulder chapter of the NAACP, are found in subsections b and c. One removes language specifying that residents must be 8 feet away from officers in order to not interfere, which “can be problematic in terms of enforcement,” staff notes to city council read.
The new language does not specify a distance, eliminated the subsection altogether and relying on a previous subsection that sets the standard for obstruction as a person “knowingly” interfering. The change mirrors state law, according to city attorneys.
Boulder Revised Code 5-5-3 (b)
Existing language: No person, upon being ordered by a police officer to move to a distance of eight feet from the police officer, or to a specific place which is no more than eight feet from the officer, while the officer is investigating what the officer reasonably suspects is a crime or violation of this code, is interviewing a suspect or potential witness, or is making an arrest, shall fail to comply with such order.
Proposed language: To assure that animals used in law enforcement or fire prevention activities are protected from harm, a person commits obstructing a peace officer or firefighter when, by using or threatening to use violence, force, physical interference, or an obstacle, he or she knowingly obstructs, impairs, or hinders any such animal.
Source: Boulder Municipal Code, City council agenda packet
“This measurement requirement, from a practical perspective, wasn’t working,” Deputy City Attorney Sandra Llanes said in a Friday interview. Most residents didn’t know that was the legal standard, and “an officer isn’t going to bring out their tape measure and measure how far it is.”
When asked if the new, more vague language could create confusion, Llanes said, “if an officer is continually telling you to move back, that’s a clear indication that you’re too close. It’s more a common sense type thing to me rather than being a hard measurement.”
Leaders of the local NAACP argued in a Monday letter to city officials that a nonspecific requirement puts more power into the hands of the police to decide what constitutes obstruction.
“This change would no doubt protect the city against lawsuits from people charged under this law by removing any limit to how far a police officer can tell observers to move away from them,” wrote Annett James, chapter president, and Darren O’Connor, chair of the criminal justice committee.
“It will do so by failing to protect our First Amendment right to observe the police. … It does so by allowing an officer to order people far enough away that he or she cannot be observed.”
The NAACP also took issue with the removal of language around excessive force in a section addressing the use of self-defense by residents interacting with cops. The proposal is especially troubling, NAACP wrote, given the 2019 confrontations between unarmed black men and Boulder police that served as a catalyst for reform.
“Obstruction charges are the kind of thing they use when they’ve shown up and have nothing else,” O’Connor said in a Friday interview. “To eliminate in the current ordinance the self defense by reason of unreasonable or excessive force, that flies in the face of what the city is otherwise in favor of.”
Notes to council did not include statistics on how many residents are charged with obstruction in a given year, nor how often they are dismissed by the city. Llanes said attorneys did not request such information for the meeting.
City Attorney Tom Carr, in an emailed response to the NAACP letter Monday, disagreed with the group’s takeaway from the changes. Adopting the new language will result in “fewer grounds to charge obstruction,” he wrote, because “an officer would need probable cause to believe that a person was actually interfering with law enforcement,” he wrote.
Further, he defended the removal of language around excessive or unreasonable force as not altering the intent of the law.
Both the existing and proposed new versions of the code “make clear that the illegality of and officer’s action is not a defense to obstruction,” Carr wrote. “The proposed change is not intended to be substantive. The intent again is to adopt language to conform to state law.”
Boulder Revised Code 5-5-3 (c)
Existing language: It is no defense to a prosecution under this section that the police officer was attempting to make an arrest that in fact was unlawful if the police officer was acting under color of official authority and in attempting to make the arrest such officer was not resorting to unreasonable or excessive force giving rise to the right of self-defense. A police officer acts “under color of official authority” when, in the regular course of assigned duties, such officer is called upon to make, and does make, a judgment in good faith based upon surrounding facts and circumstances that an arrest should be made.
Proposed language: It is not a defense to a prosecution under this section that the peace officer was acting in an illegal manner, if he or she was acting under color of his or her official authority. A peace officer acts “under color of his or her official authority” if, in the regular course of assigned duties, he or she makes a judgment in good faith based on surrounding facts and circumstances that he or she must act to enforce the law or preserve the peace.
Source: Boulder Municipal Code, City council agenda packet
While the intent to match state law is plainly stated, the impetus for the change was not. Other code changes were presented in the council packet with a catalyzing event, such as recent legal developments: 5-6-16, “Staying on Medians Prohibited” and 7-6-24(b), “All-Night Parking of Commercial Vehicle, Camper or Motor Home, or Trailer Prohibited” are both being updated due to court rulings, according to staff notes.
No reason was given for the timing of updated 5-5-3. Llanes said she “didn’t know exactly,” but that she believed it was a “request … from the police.”
City council, at its annual retreat, also suggested changing 7-6-24(b) regarding overnight parking of commercial trailers. Councilman Bob Yates, raising resident concerns, asked that they be subject to the same rules governing personal vehicles, which may be parked on residential streets, in the same spot, for up to 72 hours.
Commercial vehicles, campers and trailers are limited to 24 hours, but the code was written vaguely enough so that vehicle owners could simply move them a few feet each day without running afoul of the law. New language makes it explicit that it is illegal to park commercial vehicles, campers or RVs on residential streets for more than 24 hours, Llanes explained.
Changing that language may make it more difficult on the dozens of people living in RVs throughout the city. Some members of council have suggested safe parking as part of a larger set of reforms in homeless services. Longmont’s city council on Tuesday night will hear the results of a report it commissioned on safe parking.
It is unlikely council will address the code changes at Tuesday’s meeting. The items are placed on the consent agenda, which typically do not receive discussion. They will move to a second reading, Llanes said, which has yet to be scheduled.
— Shay Castle, firstname.lastname@example.org, @shayshinecastle
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