Jaywalk or commit some other minor infraction in downtown Las Vegas and you might get a warning, or a ticket.
If you have a criminal record, though, you might go to jail.
Though the policy has come under scrutiny and criticism because of a 2005 court case, the aggressive stance remains on the books of what’s known as the “Downtown Initiative,” a 4-year-old police effort to deal with chronic crime.
“It’s discretionary,” said Capt. Will Minor, who heads the Police Department’s Downtown Area Command, when asked if the policy is still active. “I won’t sit here and tell you no.”
But he argued that something crucial has been lost in the debate over the 2005 case in which a man on parole was stopped for jaywalking, subsequently searched by police and found to have drugs. That is, an officer’s discretion.
“Anything that you get a ticket for, you can be arrested for,” Minor said. “A ticket is a privilege … it’s allowing you to go free on a promissory note that you will show up in court.”
The initiative is aimed at people who “display a chronic, consistent nuisance and do not take care of business,” Minor said. If that’s the case, “why am I going to continue to give you that privilege?”
State law and the Nevada Supreme Court take a more limited view of that discretion, and critics argue that the policy basically targets the poor, the homeless and the drug-addicted.
“This is such a misguided, misdirected and ridiculous way to deal with these problems,” said Gary Peck, executive director of the ACLU of Nevada. “And it’s so anathema to our core values.”
The Downtown Initiative is actually a bit of a misnomer, Minor said. He described it as a planning tool the department uses to take “a long-term approach to crime,” and it simply became known as an initiative.
“Typical law enforcement is a reactive business,” he said. “You’re victimized, you call. We come, we try to get the bad guy and put him in jail.
“How do we stop as many of the crimes before they’re committed as possible?”
As he described it, the answer to that question involves getting officers to talk to each other, relay real-time information about what’s happening on the street and coordinate better with special investigative units.
“Our numbers are always a week behind,” Minor explained. “Our math may show that crime is at 15th and Fremont. However, that was last week. … We started focusing on 15th and Fremont, and now it’s moved up to Eighth and Fremont.
“Officers are out there every shift, every day, so what we say is, ‘If you see it, make the call.’ “
The plan also came up with the acronym STRATEGIC, which contains the initiative’s broad goals.
There’s “I” for “Improving quality of life” and “E” for “Excellence and accountability.”
Other letters concern actions — “T” is “Targeting core areas,” and “R” stands for “Reduce crime in traditionally high-crime areas.”
But it’s the “A” in that acronym — “Arrest habitual criminal offenders” — that’s gotten the most attention.
A QUESTIONABLE SEARCH?
On Feb. 23, 2005, Michael Dulin-Evans crossed a downtown street against the light, and a Las Vegas police officer called him over. Dulin-Evans complied and handed over his identification as requested.
The officer later testified that he arrested Dulin-Evans rather than cite him because the man had a criminal record, and that’s what the officer was supposed to do under the Downtown Initiative.
The arrest included a search, and Dulin-Evans had marijuana and methamphetamine. He was subsequently charged with possession with intent to sell.
Though Dulin-Evans’ attorney filed a challenge to that search, it was never heard because the defendant pleaded guilty to possession of a controlled substance.
He won permission from the Nevada Supreme Court to withdraw the guilty plea. The court noted “the highly questionable nature of the arrest pursuant to the Downtown Initiative and the subsequent search and seizure.”
The court ordered new trial proceedings for him.
The problem with this approach is that it targets people based on their status in the criminal justice system instead of what they’ve actually done, said Allen Lichtenstein, general counsel for the ACLU of Nevada.
“They’re not dealing with all jaywalkers this way,” he said. “They’re dealing with certain people — and that’s why it becomes pretextual.”
That’s lawyer-speak for “making up a reason.”
“It’s not a crime to be poor. It’s not a crime to be homeless,” Lichtenstein said.
“It’s not a crime to have a criminal record,” Peck added.
Dulin-Evans’ case is complicated by the fact he was carrying illegal drugs and was on parole, which means he could be searched if there was reason to suspect that he was violating the terms of his parole agreement.
Whether that applied is far from clear, according to the Nevada Supreme Court.
And while officers do have some discretion to arrest people for misdemeanors instead of ticketing them, state law and court precedent put limits on that discretion.
If a person won’t provide identification, indicates he won’t appear in court, or there’s evidence of other criminal activity, an arrest can be warranted.
Short of that, though, an officer can abuse his discretion and invalidate an arrest and search if the person is taken into custody instead of cited.
That’s what the state Supreme Court said of Dulin-Evans’ case: “The police officer’s stated reasons for arresting and searching [Dulin-Evans] … violated Nevada statutory law and was in excess of the police officer’s authority.”
The ACLU was not part of that case, which did not challenge the Downtown Initiative directly.
“We’re exploring our options,” Lichtenstein said. “Clearly we’d like to do it without litigation. That’s always a last resort.
“If they don’t like the criticism that they’re getting, then the remedy is to stop doing it.”
At the same time, police are proud of the crime reductions they’ve achieved downtown and want to keep that momentum going.
While progress fluctuates, Minor can point to statistics from the first four months of 2007 and this year showing that homicides, sexual assaults, burglaries and auto thefts are down in the downtown area.
For now, anyway.
“The time is no more when you can simply be reactive to crime,” Minor said. “Whether you want to admit it or not, we’re in the middle of a recession. What happens in a recession? Crime goes up.
“We can’t wait for that. We have to be out in front.”
Contact reporter Alan Choate at firstname.lastname@example.org or 702-229-6435.