Dallas Makes Its Cops Break Laws to Seize Private Property

Categories: Schutze

Dale.jpg
Daniel Fishel
At what point do we become ashamed of what City Hall is doing to an honest businessman?

I've got a column in the print edition this week on the car wash on Martin Luther King, Jr. Boulevard about which I have written so much over the years, and I want to call your attention to it because I believe it zeroes in on a central issue too often ignored in the clamor and din.

Cops in Dallas are using an anti-panhandling ordinance (City Charter, Chapter 31, Section 31-35)) to ticket people for washing other people's cars for a fee at this self-service car wash. The ordinance they are using says it's a crime in Dallas to engage in "solicitation" at a self-serve car wash. It says solicitation, "means to ask, beg, solicit, or plead, whether orally or in a written or printed manner, for the purpose of receiving contributions, alms, charity, or gifts of items of value for oneself or another person."

In my column, you will see that I ran this ordinance by some civil rights lawyers, one of whom is quoted in the column, one of whom answered me after the deadline for the column, both of whom agreed that the solicitation ordinance is not aimed at nor does it apply to people who offer to do work for money.

See also:
There Are Thugs at Jim's Car Wash in South Dallas.They Work for the City.

Cops Barricade South Dallas Car Wash, Threaten Arrest If You Ask Too Many Questions
Morning News Spends Five Whole Minutes "Reporting" in its Lame Attack on a Car Wash

But then there is also this. The same ordinance says, "It is a defense to prosecution under this subsection if the solicitation was being conducted on property with the advance written permission of the owner, manager, or other person in control of the property" at a self-service car wash. Not only do the owners of this car wash give permission, they want the freelance car washers to show up because they draw in the traffic. So even if the car washers were engaged in solicitation, which they are not, solicitation would be legal with the owners' permission.

All of that is just flat ignored by the police who continue to write these tickets with fines up to $500 against people already living hand-to-mouth.

There is an important back-story here. By word and by deed including a sloppy attempt at eminent domain, since withdrawn, City Hall has plainly conveyed that it wants the owners of the car wash to sell the property to someone else of City Hall's choosing. The owners do not want to sell.

The mayor of Dallas told me last December that the city attorney had advised him that, even without recourse to eminent domain, he could force a sale by using the city's "non-conforming use" laws: according to this formula, the city builds up a paper record to show that the car wash is a nuisance, then forces the property into a form of review by which the city can withdraw the underlying zoning. Voila! What was a perfectly legal business allowed by zoning on private land is all of a sudden an illegal use that the city can shut down by force.

But this process requires establishing a history of "nuisance." Knowing what position they are in, the owners of the car wash are meticulous about all of the requirements of the zoning in terms of maintenance of the property. So the city needs to find some other kind of nuisance going on there, and that would be criminal activity.

Mayor Mike Rawlings also told me last December he had asked the chief of police to set up an undercover operation at the car wash aimed at drug activity. The chief declined, the mayor said, explaining that the car wash was not a center of major drug activity. The entire surrounding neighborhood is a center of drug activity, but the car wash is not the center of that center.

So instead of a major drug operation, what I have been writing about lately is a major police anti-solicitation operation at the car wash. Police have been barricading the car wash, setting up a command post across the street -- several patrol cars with a dog team -- in order to combat the terrible plague of solicitation they say is going on at the car wash.

But it's not solicitation. It's work. For money. Work for money is not against the law. The cops know that. The city attorney has to know that.

When I went down there a couple Sundays ago, I found the cops on duty in a mood I would describe as somewhere between angry and sheepish. After threatening to arrest me for interfering with their operation when I asked questions, they shouted at me to go ask the mayor or the City Council why they were there.

I believe one of the really corrosive consequences of this misuse of the police is the cynicism it engenders in good cops. They know they are surrounded by a world of real crime and danger to citizens. They're not allowed to touch the nearby gambling house where a City Council member's father plays cards. But they are ordered to go across the street and harass hard-toiling poor people trying to survive by the sweat of their brows, in service a City Hall real estate scam, using a law that does not apply. It's a terrible way for the city to abuse its citizens. It's a terrible way for the city to misuse its cops.

This is a legitimate, private, law-abiding business on private property. At what point should we become ashamed of an operation by our city government in which laws are misconstrued -- the law effectively is broken repeatedly by the police themselves -- in order to oppress hard-working people and seize private property? I don't know about you. I'm ashamed already.

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DonkeyHotay
DonkeyHotay topcommenter

ACLU Puts Municipalities on Notice: Laws Banning Peaceful Panhandling Are Unconstitutional


October 29, 2013

FOR IMMEDIATE RELEASE

CONTACT: 212-549-2666

DETROIT – The American Civil Liberties Union of Michigan today sent letters to 84 municipalities across the state notifying them that anti-begging ordinances on their books are unconstitutional and should be repealed. The ordinances are nearly identical to the Michigan law struck down in August by the Court of Appeals for unconstitutionally preventing peaceful panhandling in all public places.

See a listing of cities, grouped by county, and the letters they received

"Anti-begging laws that punish that most vulnerable segment of our society are not only harsh, they are unconstitutional," said Dan Korobkin, ACLU of Michigan staff attorney. "No one should be thrown in jail or subjected to a fine for holding up a sign or simply asking for spare change. In the wake of the appeals court decision, we're putting these cities and townships on notice that it's time they repeal their unconstitutional ordinances. Our municipalities cannot and should not use the force of law to silence the voices of innocent people who rely on charity to survive."

The letters are a result of a comprehensive review of anti-begging ordinances across the state conducted by the ACLU of Michigan. While the exact language of the ordinances at issue varies, they each prohibit peaceful panhandling in all public places.

In 2011, the ACLU of Michigan filed a federal lawsuit on behalf of two Grand Rapids residents who had been repeatedly arrested or ticketed by police for violating the state's ban on begging. One year later, Judge Robert J. Jonker of the U.S. District Court for the Western District of Michigan ruled that the state's ban on panhandling was an unconstitutional infringement on their free speech.

After Michigan Attorney General Bill Schuette appealed that ruling, a three-judge panel on the U.S. Sixth Circuit Court of Appeals unanimously affirmed the lower court's decision.

While it is true that courts have upheld "aggressive begging" ordinances that are narrowly tailored to protect the public from actual harm and still allow peaceful panhandling in public places, the cities and townships receiving letters from the ACLU of Michigan fall short of that requirement.

As noted in the letters sent by the ACLU, Judge Jonker specifically ruled that: "Nothing prohibits the government from regulating directly the conduct the government identifies as problematic. The government can and does prohibit fraud, assault, and trespass. But what the government cannot do without violating the First Amendment is categorically prohibit the speech and expressive elements that may sometimes be associated with the harmful conduct; it must protect the speech and expression, and focus narrowly and directly on the conduct it seeks to prohibit."

In 2011, the ACLU of Michigan sent a similar letter to the City of Royal Oak indicating that the city's broadly worded ordinance prohibiting peaceful panhandling on public sidewalks was unconstitutional. In response, Royal Oak repealed the ordinance and replaced it with one that only prohibited what it clearly defined as "aggressive panhandling."

DonkeyHotay
DonkeyHotay topcommenter

Banning Panhandling Violates Free Speech says court


Cities cannot pass laws banning begging, according to a Federal Court of Appeals ruling..

The court upheld a lower court's ruling from 2012 that said anti-panhandling laws are unconstitutional because they restrict the right of free speech.

Josh Elkins began panhandling in Lansing after he lost his job for taking too much time off to care for his sick wife. He said the ruling comes as a bit of a relief.

"I think it's great for people that do need it," he said. "I mean, I'm happy with it because I've needed it.

Elkins is just one of dozens of panhandlers who can be spotted around the Lansing area.

"I mean some people will say to get a job, but some of us aren't out here for the wrong reasons," he said. "A lot of people think that people get money out here and just go get drugs or alcohol but that's not the case with everybody."

Miriam Aukerman, a staff attorney with the Michigan ACLU said Wednesday's ruling was a victory for freedom of speech.

"Asking for charity is protected by the Constitution and that's very clear, it's true for the Salvation Army bell-ringers or for the American Cancer Society," she said. "And what the Court of Appeals said today is that applies equally to people who are begging."

DonkeyHotay
DonkeyHotay topcommenter

Dallas Law Enforcement = Neanderthal Scum

ozonelarryb
ozonelarryb

Official thuggery by sleazeballs who, by some accounts, don't even live in their districts.

How bout we mount up a posse to folliw them home and get their real addresses....

RTGolden1
RTGolden1 topcommenter

Excellent writing.

fred.garvin.mp.713
fred.garvin.mp.713

This isn't panhandling by any stretch. In fact, it's counterproductive to what panhandling ordinances are purportedly designed for: we don't want the homeless to harass us and beg for money (so the reasoning goes, I'm not justifying it), so we ban panhandling. But if the homeless want to earn an honest buck providing a legal service I desire, then what's the beef?

I realize the car detailers may not be homeless in this case, but many of them--as Shutze has written before--may not be employable in the formal job sector for any number of reasons. They're out there just trying to earn an honest buck, cut them some f*cking slack!

City sends out DPD to harass and fine the detailers. Then the DMNews' reporter claims that the car detailers drop their bags and run anytime they see anyone official (no sh*t!), and for him that's evidence of drug dealing. Not, in fact, that they may have good reason to bolt for non-drug related reasons.

lebowski300
lebowski300

Please, please everyone stop shedding tears for the "good cops" who are forced to do bad things like be Rawling's Pinkertons. This is more like asking ducks to swim.

halldecker
halldecker

Feds will never bring a racketeering case against Dallas,  they can't even find time to indict JWP.

What will work is a 42 USCode 1983 action,  1983 allows private enforcement of civil rights that are being abused by state and local government officials.  As in,  private lawyers due.

I had a case in wild untamed NE Texas, for no reason we could ever find,  local cops beat the crap out of a Vietnam vet paralyzed from the waist down,  then charged him with the criminal offense of trying to run away. As the victim was African-American,  locals thought it hilarious.

For those of you who think trial lawyers never do any good ...


Adam
Adam

Emotions aside, you have unfortunately misrepresented and misstated the applicable law.


First of all, there is no Chapter 31 in the Dallas City Charter.  You mean Chapter 31 of the Dallas City Code.


Second, you have misread the relevant section of the code (and its subsections).
Within Chapter 31 of the Dallas City Code, the relevant panhandling section is Section 31-35.

Within SECTION 31-35 are NINE SUBSECTIONS, lettered (a) through (i).  

To repeat: The relevant Section, 31.35, is divided into nine separate subsections.
In your piece, and in your apparently hasty reading of the law, you have confused the word “section” with the different word, "subsection."  This is not legalese.  These are just English words.  "Section" and "subsection."  As in, "A section is made up of subsections."

The language you cite ("It is a defense to prosecution under this subsection if the solicitation was being conducted on property with the advance written permission of the owner, manager, or other person in control of the property.”) clearly falls within subsection (d) of Section 31-35, entitled “Solicitation-free zones.”

Specifically, the language you cite is paragraph (d)(2) of Section 31-35.  That is to say, it is the second numbered paragraph in subsection (d) of 31-35.  Subsection (d), Paragraph 2.

Paragraph (d)(2) explicitly sets forth a defense “under this subsection,” (i.e., a defense under subsection (d)), NOT a defense under the entire panhandling section, Section 31-35.

Thus, the defense you refer to is only applicable under section (d), which happens to be a subsection devoted to creating four so-called “solicitation-free zones” (enumerated as the Central Business District, Deep Ellum, Upown, and Victory).  So, if a property controller in those zones gives written permission to solicit, it's a defense to a violation of subsection (d), the “solicitation-free zone" subsection.

By its own terms, the defense you refer to explicitly does NOT apply to any other subsections of Section 31-35.

Third, you have conveniently left out of your piece the specific language in Section 31-35 that IS directly on point to this situation; namely, subsection (f), which states:

(f)  A person commits an offense if he conducts any solicitation within 25 feet of: . . .  (4)  a self-service car wash.

ThatOneGuyInDallas
ThatOneGuyInDallas

Is there an attorney out there willing to defend the accused "panhandlers"? I'm in for $100 to aid in their defense. Anyone else?

veruszetec
veruszetec

Go back out there with a video camera next time. Get footage. If they start yelling at you again, you've hit paydirt. The last thing the mayor will want to see is an article with a raging cop video that highlights the stupid operation going on here.

annff69
annff69

Maybe there's a way to use the Rico statutes to prosecute/sue the city of Dallas. This is such thuggery.


holmantx
holmantx topcommenter

and half the coin-operated car washes in Old East Dallas to Fair Park have people offering to wipe your car down.  Go by the one at Ross and Munger.

holmantx
holmantx topcommenter

Mark Cuban is buying property in the Fair Park area (in fact, there is a lot of buyer activity).

He could White Knight the car wash to save the City from itself.  Just buy the damn thing.  You see, that's how it works in the private sector, which doesn't have Eminent Domain or Police Power.  You just have to cash out the holdout.

Besides.  Every time I see Robberson's mug I see the smirk widen.

Not one of the Ed Board's finer Pulitzer moments.

Sotiredofitall
Sotiredofitall topcommenter

What happened to the earlier comment asking how other businesses and residents surrounding the car wash feel about the level of "nuisance" it creates?   Seemed a fair question.

ThePosterFormerlyKnownasPaul
ThePosterFormerlyKnownasPaul topcommenter

14-1, all of the disadvantages of ward politics with none of the advantages.


Seriously, I wish that the police had worked this hard when my truck was stolen.

lftay
lftay

How about we not go after the gambling house or the car wash?  In both cases it seems like these are consenting adults doing what they want without hurting anybody else.  Maybe we could focus on real crimes where there is a true victim.  And I'm sure the cops aren't thrilled to be there, either.

EdD.
EdD.

That car wash is why we lost the Olympics, the GOP convention, the 2022 World Cup, and the war in Vietnam. That car wash is why the Trinity floods twice a year making the building of the best river-bottom tollway impossible, denying us lakes and solar-powered water taxis. That car wash is why Pecan Lodge moved out of the Farmer's Market, why Snuffer's in Plano closed, and why Dr Pepper stopped making Diet Cherry Vanilla Dr Pepper. That car wash is why ice cream melts in the summer, why bridges ice in the winter, and why Tony Romo can't get the Cowboys to the Super Bowl. That car wash causes global warming, erectile dysfunction, and killed the dinosaurs.


And did you hear what that car wash said about your mom? Scandalous!

fred.garvin.mp.713
fred.garvin.mp.713

On officer of the law is not obligated to fulfill an an lawful act, so the cops should be on the hook for this, too.

fred.garvin.mp.713
fred.garvin.mp.713

No offense, but this is an entirely different matter. What Jim is describing isn't panhandling at all. The city is misusing a panhandling law to criminalize totally legal behavior.

JimSX
JimSX topcommenter

@Adam

In response to Adam above: All this effort -- and your efforts are welcome here -- but you fail to address the center of it, which is the definition of solicitation. Please, have another go at it. We will read with interest: how do you get labor for pay under the umbrella of the definition of panhandling in the ordinance, and isn't that definition the motor that makes all of the rest of it go?

Note: a sense of justice is not an emotion.

primi_timpano
primi_timpano topcommenter

@Adam: you are correct as to the applicability of the referenced "defense" but the term "solicitation" is defined as noted in Jim's article. This definition does not cover solicitations to work for hire.

The City needs to get off this case. If the current powers that be want the car wash to go away then pay a premium to acquire it, e.g., an offer too good to turn down. If such an offer is refused, then use eminent domain. If eminent domain does not apply, then leave them in peace.

holmantx
holmantx topcommenter

@Adam

you gotta be shittin' me.

They are independent contractors who offer exterior detailing for a fee.  The owner of the property and operator of the coin-operated car wash business has, by written agreement, allowed this additional service as an adjunct to his provided service.  Both parties to the contract have told code enforcement but the City has deployed the Dallas Police Department to provoke and intimidate the operator of the business and the patrons instead of simply writing them a code violation, like grass that needs to be mowed why?

Because a code violation would be easy to get dismissed in municipal court when the property owner objects under the code you cite.

Bottom line - it's a legal use of the property under the code because the owner allows it and it's part of the service he provides.  It's a listed use under that zoning. 

And no amount of what would otherwise be laughable tap dancing by the City changes the reality of it.

It is disgraceful what the City is doing in this case and one can only hope that they get ripped a new one for their efforts.

The only question I have is what is motivating this?  Jesus! Is this some weird automaton accidentally set in motion by a system that has no mechanism to stop or are there humans pushing it along?  Are we to believe that it is the system itself that is attacking the Davenports?

Because if this ugly dust up is being driven by private interests or elected officials they need to step out into the light.

Otherwise we drag them out.

And it sounds like the Mayor knows who it is.  Because he is acting out of character.  Like the cop, he looks embarrassed, hiding behind his duty.

ThePosterFormerlyKnownasPaul
ThePosterFormerlyKnownasPaul topcommenter

@holmantx 

Live Oak and La Vista ... I use it from time to time ...


I guess that you are confusing Lower Greenville with Uppermost Munger.

fred.garvin.mp.713
fred.garvin.mp.713

Private companies can use eminent domain, as the Supreme Court ruled a few years ago. Just ask the people displaced by Jerra World.

lebowski300
lebowski300

@holmantx So the only way the 99.9% can "win" is if the 0.1% choose to "save" them? Is that what you are saying is the basis of justice in the realm of private property?

JFPO
JFPO

The point is they don't want to anyone.

JimSX
JimSX topcommenter

Certainly a majority of neighborhood and elected leaders in the area want the car wash gone. The same probably can be said for most car washes, all Dallas Observer boxes and a fair number of large Baptist churches. But from the time of the Magna Carta (before ?), freehold or the right to own private property has not been an election. The sanctity of property is pretty much what distibguishes us from Stalin and the Taliban. If the owners obey every law and carry out the kind of business permitted by the zoning, not to mention paying taxes and providing a living to people who cannot otherwise earn one, why should a bunch of uptight boogies who have failed to improve their own property or control crime in any way be able to seize a private business and private property through fraud and official oppression?

JFPO
JFPO

Too bad your truck was never recovered. I'm sure you're dying to know the immigration status of the thieves.

JackJett
JackJett

@EdD. EdD.  You had me all the way to Vietnam, then I knew you were brilliantly taking the piss out of us.   Everyone knows that Laura Miller was to blame for Vietnam.  

TheCredibleHulk
TheCredibleHulk topcommenter

@EdD.

I was with you right up to the Romo / Superbowl thing.

That's entirely on Jerra.

JFPO
JFPO

Not to mention Paul's truck.

Guest
Guest

@EdD. In order for Dallas to become a world class city this car wash must go.  If you don't want this car wash to go, you don't want Dallas to be a world class city.

halldecker
halldecker

@Myrna.Minkoff-Katz @halldecker 

I didn't speak the local languages,  it was impossible for somebody from Dallas to work up the case.  

I realized I was gonna get shafted as bad as the victim,  would never do him any good.  I gave it to a local lawyer.

He got the guy some money from the City's insurance,  I never asked how much, he kinda dodged me after that,  figuring I'd ask for some of it.  I was glad for the Vet to get anything.  I was much more idealistic in my youth.

A secretly-slightly-moderate Judge out there told me,  the "whites only" water fountain signs may have come down,  but locals damn sure know which ones they're supposed to use.

ghkyluhhje
ghkyluhhje

@JimSX  "The sanctity of property is pretty much what distibguishes us from Stalin and the Taliban."-Eh, you're a bit off on your history there, but I see the point you are trying to make.


Keep in mind, you're indicting native Americans as well, who didn't even understand the concept of property ownership-which didn't help when they encountered white settlers who believed you could just seize any land you laid claim to, and then claimed you owned it indefinitely. Off topic, I know...but let's keep a proper perspective in concept of property ownership. Lack of property ownership was not what historians cite as problem of Stalin's leadership: genocide to appease his paranoia was the issue.

ThePosterFormerlyKnownasPaul
ThePosterFormerlyKnownasPaul topcommenter

@JFPO 

Not near as much knowing their immigration status as knowing the length of their prison terms.


PS: It was recovered.  It had been parked illegally for about 3 weeks.  A Dallas Police Department Neighborhood Patrol had driven by it daily for those three weeks and never noticed it.

ThatOneGuyInDallas
ThatOneGuyInDallas

@Guest @EdD.  I can live with that. I'd rather have a place to wash my car than worry about what the rest of the world thinks about the place I live.

fred.garvin.mp.713
fred.garvin.mp.713

A family friend, a DA in deep East Texas, would regale us with tales of local law when I was a kid. He once charged a black man with cattle rustling for stealing a steak from a grocery store. The locals thought that was a hoot, too.

This friend was incredibly racist, and he had quite a lot of power as DA in the small town.

holmantx
holmantx topcommenter

@becoolerifyoudid @ThePosterFormerlyKnownasPaul @holmantx

The one next to the taco joint has both employees to detail your car in the frontend area AND/OR homeless guys who walk up while you are in the stall providing a quicker service.

Munger turns into Greenville at Ross

fred.garvin.mp.713
fred.garvin.mp.713

Did they find your Creedence tape? There was a Creedence tape in the truck when it was stolen.

Myrna.Minkoff-Katz
Myrna.Minkoff-Katz topcommenter

@Tim.Covington  Back East, years ago, the papers were afire with a story about a horrific race crime that was committed in, I believe, Paris, TX, with a Black man being tied to a truck bumper and dragged to his death.  The cops seem to have botched that atrocity as well.

doublecheese
doublecheese

@Myrna.Minkoff-Katz I think you are referring to the dragging death case in Jasper, and I believe the perpetrators of that crime got the death penalty.

halldecker
halldecker

@doublecheese @Myrna.Minkoff-Katz 


One of my favorites is "engaged in conversation in high-prostitution area",  "manifesting." Observer did a story a couple years ago on it.

City Attorney is always proud to say nobody has ever challenged it's absurd laws.  Not that they haven't tried.  In '75 SMU Law School took a "loitering" case to the US Supreme Court,  which had struck all of the laws in '71.  Dallas obviously didn't get the news.

Loitering was then defined as "going from place to place and back again,  lagging behind,  walking about without purpose."  To this day,  when the City hears an absurd case is going to be appealed beyond the County Courts, they promptly dismiss it,  the SMU case was thrown out 'cause there was no longer a Defendant.  Loitering is probably still against the law in Dallas.

Jim,  I appreciate your willingness to keep writing.  The "police conduct" has been going on for well over a decade, the Police Chief swore under oath it was wrong,  wasn't justified.  That in itself should have brought a 1983 action.  One of the grounds for it is "selective prosecution."

Bottom line,  the City Council can stop it in minutes,  anytime they want to.  Before the Lord clasps me to His bosom,  I'd like to know why they don't.

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