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Not Enough or Too Far?

Town Council splits over need for loitering law.

In heated discussion, the Herndon Town Council debated the merits and necessity of a potential loitering law at last week's work session.

While all council members seemed to agree that Herndon has a growing problem with loiterers, highlighted by the day laborers that regularly wait at the 7-Eleven on Elden Street looking for work, there was clear disagreement as to a possible solution.

Richard B. Kaufman, the town attorney, told the council that any future loitering law would have to be carefully worded to stand up in court. "For the law to be legal," Kaufman said, "it must be tied to an overt illegal act, and only then would it be sustainable in a court of law."

When pressed by members of the board about what exactly constitutes an "overt illegal act," Kaufman said trespassing and blocking sidewalks could fall under that category. "The town already has ordinances in place that prohibit blocking streets and trespassing," he said.

While Kaufman said any additional ordinances might be "redundant," he quickly added that such a law, if enacted, could also be one additional tool for police, as it is for police in Alexandria where a similar ordinance is on the books.

Capt. Darryl Smith, of the Herndon Police department, agreed with Kaufman' s suggestion that a loitering law might be considered redundant. Speaking for Chief Toussaint Summers, who was not at the meeting, Smith said his boss would not support any additional loitering statutes. "The ordinances we have on the books now are sufficient," Smith said.

<b>HERNDON VICE MAYOR</b> Carol Bruce came out strongly in favor of a potential loitering law. "I think it' s important for Herndon to make a statement," Bruce said. "Whether it' s redundant or not, sometimes words are important."

When a few members of the council asked Smith about having police check for immigration papers, Smith dismissed the suggestion. "We need sufficient reason to look at somebody's papers. We can' t ask for papers."

Councilman Dennis Husch was clearly unhappy with Smith' s assessment of the potential law and made his support of a loitering law clear. "We are going to solve this problem," Husch said. "I' d love to hear the chief's decision in writing."

Husch tried to take his argument for the loitering law one step further. Husch insisted that the day laborers who stand in front of the 7-Eleven are guilty of what, the characteristically outspoken councilman called, "a black market labor."

Husch said that "black market labor and its conspiracy to defraud the state" is just as illegal as trespassing and blocking sidewalks. "The loitering we see is loitering for the sale into black market labor," he said. "If I am going to do anything on this board, I am going to fix this."

"There is going to be an outcry in this community," Husch said. "So either— get on board or get on out,' because I have just had it. We need to get out of the social services business and into the law enforcement business. It's time to turn the FBI and the ATF on them."

<b>COUNCILMAN HARLON REESE</b> took exception with Husch's stance. He said while he was extremely interested in finding a solution to the problem, he said enforcement of such a strongly-worded ordinance would likely be very difficult and enforcing it would be a whole different matter

"It's not that I am not concerned about the problem. We've got to exercise some care here," Reese said. "Dennis talks a lot about 'unintended consequences' and that's important. What are the judges going to do if we start writing up a bunch of tickets?"

Reese added that a law, interpreted as Husch describes, could result in protests in the town, a tarnished image for Herndon and a decrease in property values.

Mayor Richard Thoesen seemed to take offense at Husch's stance against day laborers, in particular. "Dennis, when you start talking about bringing in the FBI, the Alcohol, Tobacco and Firearms folks and the INS, I want to be sure that we aren't overreacting here," the mayor said. "I think our men and women in uniform would not be proud to enforce a such law."

"Are we going to be judged by the power of our laws or the strength of our character?" asked the mayor. "The strength of our laws is based on our Bill of Rights. I think we are treading on real thin ice here looking for a magic wand."

The vice mayor shot back. "All we are doing is exploring alternatives," Bruce said. "Some of us in the room understand that. So yeah, if you want to come in and live by our rules and pay our taxes, then you are welcome, but if you are coming in here to degrade our neighborhood, loiter on street corners and not contribute, then you are not welcome."

The mayor worried aloud that such a law might force police to question people based on the color of their skin. "Then say you have five individuals standing by the paint store in the parking lot and you are going to have our men and women in uniform and ask them what they are up to?" the mayor asked. "We'll be frisking people up and down Elden Street."

"You are making a big leap," Bruce told Thoesen. "We have an obligation explore all the legal alternatives. We need to take a stand and demonstrate that we understand we have a problem. What we are doing now is not enough."

In a 4-3 vote, the council charged the town attorney with looking into the legalities surrounding a potential loitering law and Husch' s black market labor argument. Kaufman, who called Husch's argument, "an interesting concept that he'd never considered," said he would report to the council in one month with his findings. Councilman Michael O' Reilly said he "looked forward to finding out legally if that is even an option."