BOULDER- Activists are concerned a change made Tuesday to a city code defining the crime of obstructing a peace officer will threaten government transparency.
But City Attorney Tom Carr insists their worries stem from a misinterpretation of how the code is changing, and that police will actually have less grounds to charge someone with the crime under the new definition.
Under the previous criminal code, Carr said peace officers, which will now be defined as firefighters, emergency medical service providers and some volunteers for such agencies, in addition to police officers, can legally order members of the public to step back 8 feet from where officials are working. People can be charged with obstruction if they do not comply.
Boulder has proposed disallowing officers to arrest people who don’t step back 8 feet when told, meaning members of the public can observe officials working as long as they avoid “threatening to use violence, force, physical interference, or an obstacle” to “knowingly obstruct, impair, or hinder” official activity, the revised city code states.
But members of the Boulder County branch of the National Association for the Advancement of Colored People fear removing the limit to how far officers could legally ask someone to move back could prevent the public from being able to watch peace officers working in public.
“Removing the eight-foot limit is problematic, both making the law more vague and infringing on the right of the public to observe police in public,” NAACP Boulder County President Annett James and Darren O’Connor, chair for the organization’s criminal justice committee, stated in a letter to City Council and the city manager Monday. “This change would no doubt protect the city against lawsuits from people charged under this law by removing any limit to how far a police officer can tell observers to move away from them. It will do so by failing to protect our First Amendment right to observe the police.”
But Carr contends the city code previous to Council’s approval of the change did not offer a defense against an obstruction charge to a member of the public watching at a distance of 8 feet or more. Instead, it simply allowed officers to charge someone with the crime if they declined to adhere to such a buffer.
“Our view is that this is more protective of the public,” Carr told Council. “… We’re actually making it harder for the city to charge obstruction.”
The changes to the municipal code were meant to parallel the state’s definition of obstruction, Carr said.
“I know one of the things that people are concerned about is that under the new language potentially someone could legally be asked to remove themselves to a distance where they could no longer see what was occurring,” Councilman Aaron Brockett said.
Carr responded that Council could give the public a defense against being charged with obstruction by stating that 8 feet is always an acceptable distance from which to observe peace officer activity.
Several members of the public voiced concerns with the proposed change to the obstruction code Tuesday before Council passed it on first reading following Carr’s explanation of the apparent misunderstanding of the current law’s possible applications.
“If Council wanted to add a defense to say you’re not interfering if you’re 8 feet away, that would accomplish what people seem to want in these comments,” Carr said. “It would be hard to violate (the code) if you were 8 feet away.”
O’Connor declined to comment Wednesday on Carr’s interpretation of the change as more protective of the public, saying the NAACP was working on a response to the city.
Council also approved a change to its ordinance limiting how long trailers and commercial vehicles can be parked on the street in the city to no more than 24 hours after the Municipal Court found the rule too vague to enforce, because it offered two interpretations: one that would allow a vehicle to be in compliance if it were moved to another street, and one that would mean the vehicle could never again be parked on any street once it had been parked for a total of 24 hours.
“Though the court is obligated to adopt a construction of the ordinance that renders the ordinance constitutional, it simply cannot find a way to do so,” Associate Judge Jeff Cahn wrote in September. “An interpretation that would allow an owner of a trailer to park on a city street one time for up to 24 hours, but be prohibited thereafter from ever parking that trailer on a city street the rest of the time the owner possesses the trailer does not make sense.”
The city has proposed cleaning up the rule to prevent campers, motor homes and trailers from staying on the street for more than 48 hours, during which users must be actively loading or unloading the vehicle. It could also provide an exception for vehicles that have received a permit from the city to park for longer than two days.
Council is considering allowing landscape trailers and other commercial vehicles, like trucks holding plumbing equipment, to remain on the street for up to 72 hours.
The changes are set for a second reading by Council and final adoption later this year; a date was not listed on the proposed ordinance at first reading.