Brookline’s War on Graffiti.
By Arshag A. Mazmanian
Part 1. Due (and other) Process
The warrant article adopted at the recent Special Town Meeting addressing graffiti is rather concise (“Graffiti Bylaw”) as it awaits approval by the Attorney General’s Office.
It replaces an obviously inadequate bylaw provision in Section 8.5.9: “No person shall deface by marks, or otherwise, in any manner, any fence, building, sidewalk, crosswalk, or bridge.”
Clearly, the Graffiti Bylaw is an improvement over the provision it replaces. But questions/issues come to mind as to the process by which it was adopted. An appropriate analysis requires going back to prior graffiti warrant articles presented in 2006 to Town Meeting that were referred to a committee (“Committee”), resulting in the Committee’s warrant article presented to the 2007 Annual Town Meeting. But the matter was returned to the Committee for revision to address further issues that had been raised, which brings us to the Graffiti Bylaw.
Here are a few of the questions/issues that come to mind raised by the Graffiti Bylaw:
1. The definition of “graffiti” fails to address acts by a property owner on his/her property that if done by others without the owner’s “prior written consent” would constitute graffiti. (Section 8.5.9.2.)
2. Section 8.5.9.3 states: “The application of graffiti to the real or personal property of another is prohibited.” Personal property may include motor vehicles and bicycles if publicly visible, including those owned/operated on public ways by non-Brookline residents.
3. The Graffiti Bylaw does not address the responsibility of and enforcement against the tagger of graffiti; rather, it focuses upon the responsibilities imposed upon the innocent victim property owner to remove the graffiti. Apparently the burden is placed upon the property owner to pursue the tagger: The second paragraph of Section 8.5.9.4 would oblige the property owner to reimburse the Town “for the Town’s actual costs of removing such graffiti from any funds forfeited by the offender [tagger] to the property owner under any related criminal or non-criminal enforcement action.”
4. The role of the chief of Police under the Graffiti Bylaw is not focused on prevention, apprehension and punishment of the tagger. Rather, the Chief triggers the notification of the innocent victim property owner. Is the choice of the Chief for this role intended as a subtle intimidating factor that may bring about the prompt action of the innocent victim property owner to remove what the Chief has determined to be graffiti?
5. The Graffiti Bylaw includes no provision for a hearing in the nature of even minimal due process for a property owner to challenge the Chief’s determination of “graffiti” on his/her property. A requirement for due process is not limited to strictly criminal processes. (The Graffiti Bylaw may result in criminal penalties.)
6. The Graffiti Bylaw does not address condominiums specifically with respect to the obligations of the property owner. Presumably the property owner would be the condominium association and not individual unit owners.
The earlier warrant articles, while of greater length and complexity than the Graffiti Bylaw, did address some of these questions/issues. Perhaps the Committee eliminated them for purposes of simplification. But simplification should not eliminate basic fairness and due process requirements. I wonder if attorneys serving on the Committee considered these questions/issues.
(Coming installments may address other questions/issues, including whether the “War on Graffiti” may (similar to the “War on Terror” producing more terrorists) produce more taggers.)
