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A Rhode Island beach town can post bright orange stickers on houses where an “unruly gathering” occurred, according to a recent U.S. Court of Appeals for the 1st Circuit ruling that rejected the appellants’ claims of stigmatization. The Jan. 5 unanimous panel ruling in URI Student Senate v. Town of Narragansett upheld a lower court’s March 2010 summary judgment upholding a town ordinance. The American Civil Liberties Union of Rhode Island handled the case on behalf of the University of Rhode Island Student Senate, five individual student tenants and three individual landlords. Senior Judge Bruce Selya wrote that the notice-of-unruly-gathering ordinance “does not, on its face, offend either state law or the United States Constitution.” Chief Judge Sandra Lynch and Judge O. Rogeriee Thompson joined the opinion. The town adopted its ordinance in 2005 and amended it in 2007. The current version allows police officers to post a bright orange 10-by-14-inch sticker at or near a residence’s entrance after they disperse a gathering that involved unlawful conduct. Examples of illegal behavior that could lead to a sticker posting include public drunkenness or urination, alcohol served to minors, excessive noise, and obstruction of public streets. If there’s another unruly gathering during the posting period, the ordinance allows police to hold owners, residents, hosts of the gathering and guests liable for legal violations. Stickers posted between the beginning of September and the end of May are in force through May 31. Stickers posted June through August must remain on the residence until Aug. 31. Police interventions at a posted residence generate a $300 fine the first time, a $400 fine the second time and $500 on additional occasions. Police can also order community service for violators and repeat offenders are subject to mandatory community service. In his analysis, Selya first wrote that the Rhode Island Residential Landlord and Tenant Act does not pre-empt the ordinance because there’s no irreconcilable inconsistency between the two. Selya then addressed the appellants’ constitutional claims, but said the 1st Circuit would not examine their substantive due process or equal protection claims because the appellants “have not pressed either.” Selya rejected the appellants’ procedural due process claim because it focuses on the stigma or reputational damage that follows a sticker posting. He noted that the U.S. Supreme Court’s 1976 ruling in Paul v. Davis “has made clear that a procedural due process claim cannot rest upon reputational harm alone.” “Thus, when a person alleges that she has suffered stigmatization at the hands of a government actor, she must show an adverse effect on some interest “more tangible” than reputational harm,” Selya wrote. Selya decreed that two consequences of the orange sticker posting did not meet the test. One, the town informs the university when an orange sticker is posted on a residence where one or more students live. Second, the landlord appellants claim they’ve had difficulty renting units with orange stickers. “Though we conclude that, on the record before us, the appellants have failed to show that enforcement of the Ordinance has resulted in harm to a cognizable liberty or property interest, this conclusion does not preclude the possibility of a meritorious as-applied challenge premised on more fully developed facts,” Selya wrote. Selya went on to say the panel is “uneasy about the absence of a hearing,” and acknowledged that how the ordinance is applied “might impair constitutionally protected liberty or property interests.” He also shot down the appellants’ argument that the ordinance infringes on the First Amendment right of association because its too broad. The First Amendment, Selya wrote, “has never been expanded to include purely social gatherings.” In addition, the 1st Circuit rejected the appellants’ due process argument that the ordinance is vague and can be arbitrarily enforced. Selya noted that the ordinance’s requirement that a violation of law be committed before police intervention “provides adequate guidance to ensure that the Ordinance is not arbitrarily enforced.” The ordinance’s preamble, which spells out the town’s purpose for the ordinance, also “helps to dispel any uncertainty,” Selya wrote. H. Jefferson Melish, a Wakefield, R.I. solo practitioner who handled the appellants’ case pro bono for the ACLU of Rhode Island, said there are numerous examples of the ordinance being erroneously applied, for example to a new tenant on a previously orange-stickered rental unit. “There’s no flexibility and no way to challenge something that might be erroneous,” Melish said. “I think there’s procedural due process issues concerning the ordinance that have affected a lot of students and a lot of landlords in Narragansett. This matter will be looked at as the town continues to enforce the ordinance.” Even if the appellants don’t appeal the federal court decision, how the ordinance is applied to individuals hasn’t been tested in the 1st Circuit case, Melish said. “I hope ultimately we will be successful in getting the state courts to find it unconstitutional as applied to various student tenants and/or landlords,” Melish said. “Unless the town amends the ordinance, I believe there will be future litigation about it.” University of Rhode Island Student president Dave Coates said the Senate will be pursuing new options, such as filing other lawsuits with new appellants and possibly an appeal to the U.S. Supreme Court. “We’re disappointed that the court only considered the facial challenge to the ordinance and not the as-applied challenge,” Coates said. “It also ignored the discriminatory nature of the ordinance. It’s only applied against college students.” Coates claimed only one orange sticker was issued to a summer renter last summer versus dozens to students during the school year. “It’s really indicative of the manner in which the police use this ordinance,” Coates said. “The orange sticker being publicly displayed on your door puts students on par with sex offenders because you’re publicly displayed as a nuisance to the community.” Narragansett’s town manager, Grady Miller, said the town attorney has instructed the police department to apply the ordinance equally to summer residents and student renters. Complaints about summer renters are rarely related to unruly gatherings, Miller said. Typical summer renters are families with children, not groups of adults, he added. “We respond and we have complaints that occur from time to time; they’re never at that level of excessiveness with the summer rental properties,” Miller said. Miller also said challenges about how the law is being applied will have to be viewed in light of the fact that the orange stickers are issued following police administrative review, not at the time of the disturbance. They make a determination as to whether it was excessive and it met the letter of the law,” Miller said. “You might have somebody who was not actually there talking to the officers involved.” That said, the town is “looking at the possibility of maybe developing an appeal process,” Miller said. The town’s attorney for the case, Marc DeSisto of Providence, R.I.-based DeSisto Law Offices, declined to comment. Sheri Qualters can be contacted at [email protected].

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