Fargo Park District's Ban Of Island Park Lurker May Be Unconstitutional

“Officials have wide latitude in banning people from public property,” the headline reads for the Fargo Forum’s Archie Ingersoll article about the lurker at Fargo’s Island Park.

That man, now identified by police as 37 year old Kirk Ludwig, understandably concerned some people by hanging out near the park’s pool surreptitiously taking pictures of people at the pool. Police, who were first contacted by Ludwig himself (see below), have conceded that Ludwig did nothing illegal (though he has been cited after cops found a small amount of pot in his car) yet despite that he’s been banned from some park property.

Ingersoll’s article seeks to establish the authority by which city officials did this, but the only authority Ingersoll quotes is…city officials. People who aren’t exactly objective when it comes to evaluating the legality of their own decisions.

Would that he dug a little deeper, because I think there’s a good case to be made here for the city’s actions being unconstitutional. For instance, in Papachristou v. Jacksonville the U.S. Supreme Court found that vagrancy law in the City of Jacksonville was unconstitutionally vague and unequally enforced. Per Wikipedia, “The court found that the laws could potentially criminalize a variety of innocent activities, such as ‘Nightwalking,’ or ‘habitually living ‘without visible means of support.'”

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#000000″ txt_color=”#ffffff”]Ingersoll’s article seeks to establish the authority by which city officials did this, but the only authority Ingersoll quotes is…city officials.[/mks_pullquote]

Fargo may be guilty of the same thing the City of Jacksonville was guilty of. And it’s not really a 1st amendment issue, as many people are claiming, but rather a 5th and 14th amendment due process issue. “Future criminality, however, is the common justification for the presence of vagrancy statutes,” the court wrote.

“A direction by a legislature to the police to arrest all ‘suspicious’ persons  would not pass constitutional muster,” the court continued in the opinion.

Here’s why that matters for what happened in Fargo.

For one thing, the police have conceded that Mr. Ludwig did nothing illegal by hanging out in the park taking pictures. Some people may not have liked that he was there, some people may have been disturbed by his actions (honestly, I’m not entirely comfortable with how this guy comported himself either), but he broke no laws and it is not constitutional to prosecute someone, or put them under threat of prosecution for entering public property as the City of Fargo has done with Mr. Ludwig, because they might commit a crime.

For another, it seems that the Park District is not applying this ordinance equally. Recently a large fight at Lindenwood Park in Fargo made big headlines, but to my knowledge nobody was excluded from access to park property despite the fact that the people in the fight were very specifically breaking laws against assault, vandalism, etc.

I’ve put in a request for more information about the park district’s use of trespass policies. I’ll update the post when I get more.

And by the way, it’s interesting that this case cropped up at the same time the Park District instituted policies to prohibit discrimination against gays. The Fargo Park District says they don’t want to discriminate against people based on their sexual orientation – that’s good! – but they’re willing to ban someone from a park…because they look weird? Or they’re acting funny?

If Mr. Ludwig wanted to challenge this order from the Park District I think he’d have a pretty solid case. But certainly Fargo citizens shouldn’t be patting themselves on the back over this, whether we’re talking about the Park District’s actions or the social media lynch mob which formed targeting this guy.

UPDATE: Here is some great additional information on this case.

First, an interview on Valley News Live between Chris Berg and Deputy Police Chief Joe Anderson during which it is revealed that the first person to contact the police about Mr. Ludwig was…Mr. Ludwig. The people who posted his picture on Facebook apparently didn’t bother to contact the police. Mr. Ludwig did after he noticed his picture on Facebook and got concerned.

Second, another Berg interview with Fargo Park District Executive Director Roger Gress in which Gress…doesn’t exactly do a great job explaining his department’s handling of this situation.

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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