Constant on crimes, protests, and enforcement

The debate continues in San Jose as to when the city should enforce  laws against crimes committed during protests. Former SJ councilperson and policeman Pete Constant weighs in.

Opportunity Now: Which branch of the government has the authority to decide whether or not the curfew violators will be charged?

Peter Constant: Municipal code violations are enforced by the City Attorney, they are the charging party. The City Attorney is appointed by the Mayor and Council.

ON: The City Attorney says the curfew may not have passed constitutional muster. If that's the case, why did they pass it in the first place?

PC: Haste leads to waste. I wasn't in the meetings, of course, but in tense times there can be a rush to action, in which people believe it is important to do something, no matter what that something might be. It's like the emergency orders during the pandemic: one group does it, then groupthink kicks in and people start following each others' decisions.  These are often what I call "feel-good" policies which make legislators feel like they are doing something,when they are really not having much impact.

When it comes down to constitutional issues, there is often discussion on what is the risk or legal liability associated with a particular action. Oftentimes ,as policies are being rushed into development, the perception of legal risk tends to get minimized because they want to do something. It's only after things have settled down that they see the potential constitutional impacts. Of course that risk assessment should occur earlier in the process.

ON: San Jose decided not to charge the people cited with curfew violations. Is that a slippery slope?

PC: Perhaps the first question legislators should ask: if this is serious enough for us to pass as law are we going to be committed to enforcing it? It reminds me about smoking being regulated in parks when I was councilperson. People asked a good question: What will the cost of enforcement be? Some of my colleagues on the council commented that just putting up the signs will be enough. But that's not human nature, people don't just respond to stated signs. If there is no threat of enforcement then some see that there is no reason to not commit the offense. If the CHP said we're not going to enforce speeding, would speeding go up, even if the signs remained the same? Of course. You lose the deterrence effect when you don't enforce.

Laws like curfew are laws that deter those people who are unlikely to take the bad action in the first place. A subset of these protestors were committing all sorts of other crimes:  blocking streets in opposition to the vehicle code, trespassing and vandalizing in violation of the penal code. People assembling without permits as required by muni code. Honestly, what is one more regulation going  mean to them?

The bigger issue is: why did the City say "never mind?" Was it a change of heart because they  felt they should not have had the curfew in the first place? Was it too many citations and not much of a ROI on the enforcement? Or was it because a political  leader also got caught in the web? We may never know the motivation, so the process has a cloud over it and that doesn't help anybody. 

ON: What would have been a better process?

PC: We should always encourage policymakers to think about what they have done and if we think they have erred we should be open to them correcting their mistakes. I wouldn't fault them if they thought there was a problem, passed a law, then found it was in error and rescinded it.  But they should do it quickly. Waiting for a city official to get ensnared before they make the change is not right. We need to hold people accountable--policymakers and citizens alike.

Pete Constant is the Chief Executive Office of the Retirement Security Initiative.  He served as Council Member for the City of San Jose from 2007-2014, where he served as trustee on the city’s two pension plans. Pete began his career in law enforcement as a police officer for the City of San Jose, where he served for 11 years until an on-duty injury forced his early retirement.