Enforce ordinance as written, but no more

Tuesday's Observer editorial:

Unless you’re a news junkie, you’ve probably been only vaguely aware of the fledgling and listless Occupy Charlotte movement. A few dozen protesters have been camped out on the Old City Hall lawn since last fall, generally behaving themselves but giving limited voice to their anti-one-percent message. So their dispersal by Charlotte police Monday may hardly seem momentous.

But while the stage was tiny, the principles at issue, and the implications for Charlotte’s near future, were significant.

City leaders and police are in a tough spot. With the Democratic National Convention arriving here in seven months, they need ordinances that keep the public safe and prevent Charlotte from making national headlines for all the wrong reasons. They also need to uphold the U.S. Constitution, the very First Amendment of which gives people the right to peaceably assemble. That’s a difficult balance.

Charlotte’s City Council made a good effort, by and large, to strike that balance when it revised its crowd-control ordinances last week. Those revisions did give police overly broad powers to search every handbag and backpack. Banning protesters from sleeping on public property, however, was sensible. New York, Oakland and other cities have found that people living and sleeping in campsites on public property can evolve into unruly, dangerous mobs.

That’s what the City Council was seeking to avoid when it softened its proposed ordinance. Initially, council members considered banning tents, tarps and other temporary structures altogether. Trying to strike that balance, though, they changed the wording to outlaw only tents used “for living accommodation purposes such as sleeping, or making preparations to sleep … or storing personal belongings.”

In other words: Protest all you want, but no living (and sleeping) on public property. That’s a sensible restriction. One needn’t sleep to protest or peaceably assemble.

Charlotte-Mecklenburg police, though, overstepped their authority Monday because they removed all tents, whether they would be used for sleeping or not. Police Chief Rodney Monroe said they did so “going on history, based on prior observations.” That is, protesters had been sleeping in the tents for months. He cared not whether they would be sleeping in them going forward.

But it was legal for protesters to sleep in them until now, because the new ordinance didn’t take effect until Monday. When we asked about that, Monroe said only: “We’ll leave that up to the courts to decide.” He would not answer questions about whether a protester could pitch a tent today, as long as he does not sleep in it.

(We should emphasize how well police performed Monday. While their reading of the ordinance is mistaken, their calm, skilled dismantling of the site was highly professional. Protesters, too, were peaceful throughout.)

Whatever one might believe should be allowed, the city ordinance does not forbid tents or canopies unless they are used for sleeping. Going forward, if protesters – from Occupy or the tea party or any other group – assemble on public property and use tarps to protect themselves from the elements, they are violating nothing. Police need to understand that and the City Council and city attorneys should make sure they do.