PROHIBITING LOITERING UNDER CERTAIN CIRCUMSTANCES
AN ORDINANCE OF OGDEN CITY, UTAH, AMENDING CHAPTER 5, TITLE 11 OF THE OGDEN MUNICIPAL CODE BY ADOPTING A NEW SECTION 11-5-9 PROHIBITING LOITERING UNDER CERTAIN CIRCUMSTANCES DESCRIBED WITHIN THE BODY OF THE ORDINANCE; AND BY PROVIDING THAT THIS ORDINANCE SHALL BECOME EFFECTIVE IMMEDIATELY UPON PUBLICATION AFTER FINAL PASSAGE.
Now, therefore, the Council of Ogden City hereby ordains:
SECTION 1. Section adopted . Chapter 5, Title 11 of the Ogden Municipal Code is hereby amended by adopting a new Section 11-5-9 to read and provide as follows:
11-5-9: [GANG LOITERING:]
A. [Legislative Findings:]
1. In many locations throughout the City, the presence of street gang members in public places has intimidated many law-abiding citizens;
2. One of the methods by which criminal street gangs establish control over identifiable areas is by loitering in those areas and intimidating others from entering those areas;
3. Criminal street gangs establish control over identifiable areas in order to control narcotics sales and other illegal activities in those areas, and to intimidate law-abiding residents;
4. Members of criminal street gangs avoid arrest by committing no offense punishable under existing laws when they know police are present, while maintaining control over identifiable areas by continued loitering;
5. The City Council has determined that loitering in public places by criminal street gang members creates a justifiable fear for the safety of persons and property in the area because of the violence, including unacceptably high rates of drive-by shootings, drug-dealing and vandalism often associated with such activity;
6. The City also has an interest in discouraging all persons from loitering in public places with criminal street gang members because persons who are not gang members in those circumstances are at risk from drive-by shootings and other gang-related violence, and at risk to be recruited by gangs;
7. Aggressive action is necessary to preserve the City's streets and other public places so that the public may use such places without fear; and
8. Current laws are inadequate to deal with problems posed by gang loitering principally because conventional laws generally depend upon the willingness of civilians to testify against gang members and drug dealers, and many civilians are understandably reluctant to put themselves in harm's way by providing such testimony.
B. [Definitions:] As used in this Section, the following terms shall have the designated meanings:
CRIMINAL STREET GANG: Any ongoing organization, association in fact or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more predicate gang crimes, having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.
GANG LOITERING: Remaining in any one place under circumstances that would warrant a reasonable person to believe that the purpose or effect of that behavior is to enable a criminal street gang to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities.
PATTERN OF CRIMINAL GANG ACTIVITY: The commission, attempt to commit, conspiring to commit, or solicitation of two or more predicate gang crimes within a five year period, provided that the offenses are committed by two or more persons, or by an individual at the direction of, or in association with, any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members.
PREDICATE GANG CRIME: 1. The following offenses under the laws of the state of Utah (Utah Code Ann.):
(a) Any criminal violation of Title 58, Chapter 37, 37a, 37b, or 37c, regarding drug-related offenses;
(b) Assault and related offenses under Title 76, Chapter 5, Part 1;
(c) Any criminal homicide offense under Title 76, Chapter 5, Part 2;
(d) Kidnapping and related offenses under Title 76, Chapter 5, Part 3;
(e) Any felony sexual offense under Title 76, Chapter 5, Part 4;
(f) Any property destruction offense under Title 76, Chapter 6, Part 1;
(g) Burglary, criminal trespass, and related offenses under Title 76, Chapter 6, Part 2;
(h) Robbery and aggravated robbery under Title 76, Chapter 6, Part 3;
(i) Any fraud offense under Title 76, Chapter 6, Part 5, except Sections 76-6-504, 76-6-505, 76-6-507, 76-6-508, 76-6-509, 76-6-510, 76-6-511, 76-6-512, 76-6-513, 76-6-514, 76-6-516, 76-6-517, 76-6-518, and 76-6-520;
(j) Any offense of obstructing government operations under Title 76, Chapter 8, Part 3, except Sections 76-8-302, 76-8 303, 76-8-304, 76-8-307, 76-8-308 and 76-8-312;
(k) Tampering with a witness or other violation of Section 76-8-508;
(l) Retaliation against a witness, victim or informant in violation of Section 76-8-508.3;
(m) Extortion or bribery to dismiss criminal proceeding as defined in Section 76-8-509;
(n) Any explosives offense under Title 76, Chapter 10, Part 3;
(o) Any weapons offense under Title 76, Chapter 10, Part 5;
(p) Any violation of Title 76, Chapter 10, Part 14, Bus Passenger Safety Act;
(q) Any violation of Title 76, Chapter 10, Part 16, Pattern of Unlawful Activity Act;
(r) Communications fraud as defined in Section 76-10-1801;
(s) Any violation of Title 76, Chapter 10, Part 19, Money Laundering and Currency Transaction Reporting Act;
(t) Burglary of a research facility as defined in Section 76-10-2002;
(u) Any violation of Title 76, Chapter 6, Part 11, Identity Fraud Act;
(v) Felony theft in violation of Title 76, Chapter 6, Part 12, except Sections 76-6-404.5, 405, 407, 408, 409, 409.1, 409.3, 409.6, 409.7, 409.8, 409.9, 410 and 410.5;
(w) Violations of Sections 41-1a-1313 (possession without identification number), 1315 (false evidence of title and registration), 1316 (Receiving/transferring stolen vehicles), 1317 (Selling/Buying with identification number) and 1318 (Fraudulent alteration of identification number) of the Motor Vehicle Act;
2. Any federal or state felony offense that by its nature involves a substantial risk that physical force against the person of another may be used in the course of committing the offense, including assault with a deadly weapon aggravated battery, intimidation, compelling organization membership, homicide or manslaughter, shooting at an occupied dwelling or motor vehicle, kidnapping, car jacking, robbery, residential burglary, drive-by shooting, unlawful use or possession of weapons, bribery, tampering with or retaliating against a witness, victim, informant or juror, rape, torture, and arson.
3. Any federal or state offense involving:
(a) Money laundering;
(b) Felony vandalism;
(c) Unlawful sale of a firearm; or
(d) Obstruction of justice.
PUBLIC PLACE: Any location open to the public, whether publicly or privately owned.
C. The Chief of the Ogden Police Department shall by written directive designate areas of the City in which the Chief has determined that enforcement of this Section is necessary because gang loitering has enabled criminal street gangs to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities. Prior to making a determination under this subsection, the Chief shall consult as he or she deems appropriate with persons who are knowledgeable about the effects of gang activity in areas in which the ordinance may be enforced. Such persons may include, but need not be limited to, members of the Ogden Police Department with special training or experience related to criminal street gangs; other personnel of the department with particular knowledge of gang activities in the proposed designated area; elected and appointed officials of the area; community-based organizations. The Chief shall develop and implement procedures for periodic review and update of designations made under this subsection.
D. Whenever a police officer observes a person whom he reasonably believes to be a member of a criminal street gang engaged in gang loitering as defined herein with one or more other persons in any public place, the police officer shall: (i) inform all such persons that they are engaged in gang loitering within an area in which loitering by groups containing criminal street gang members is prohibited; (ii) order all such persons to disperse and remove themselves from within sight and hearing of the place at which the order was issued; and (iii) inform those persons that they will be subject to arrest if they fail to obey the order promptly or engage in further gang loitering at or within the sight or hearing of the place at which the order was issued. E. The Chief of the Ogden Police Department shall by written directive promulgate procedures to prevent the enforcement of Section D against persons who are engaged in collective advocacy activities that are protected by the Constitution of the United States or of this State.
F. A violation of this section is a class B misdemeanor, and upon conviction shall be punishable as set forth in title 1, chapter 4, article A of this code. Any person who fails to obey promptly an order issued under Section D above, or who engages in further gang loitering at or within the sight or hearing of the place at which such an order was issued is subject to a civil penalty of not less than $100 and not more than $1000 for each offense, or imprisonment for not more than six months for each offense, or both. A second or subsequent offense shall be punishable by a mandatory minimum sentence of not less than 5 days imprisonment.
G. In addition to or instead of the above penalties, any person who violates Subsection D of this Section may be required to perform up to 120 hours of community service.
H. All law enforcement officers within the Ogden City Police Department charged with enforcing this ordinance will undergo appropriate training on identification of gang members and criminal street gangs.
SECTION 2. Effective date. This ordinance shall be effective immediately upon publication after final passage.
PASSED, ADOPTED AND ORDERED PUBLISHED by the Council of Ogden City, Utah this 17th day of July , 2007.
/s/ Jesse M. Garcia
CHAIR
ATTEST:
/s/ Cindi Mansell
CITY RECORDER
TRANSMITTED TO THE MAYOR ON: 07/27/07
MAYOR'S ACTION: Approved Vetoed
/s/ Matthew R. Godfrey
MAYOR
ATTEST:
/s/ Cindi Mansell
CITY RECORDER
PUBLICATION DATE: 08/05/07
EFFECTIVE DATE: 08/05/07
APPROVED AS TO FORM: ___MAB 6/25/07 _
Legal Date
* The headings, catchlines or catchwords suggested for use in the Ogden Municipal Code and which are bracketed at the beginning of sections or subsections, shall not be considered to be a part of the ordinance adopted herein.
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