Imprisoned jaywalker challenges drive to clean up downtown

Saturday, July 21, 2007 | 7:20 a.m.

Michael Dulin made the mistake of jaywalking in downtown Las Vegas two years ago. The misdemeanor landed him in prison, where he remains to this day.

Only Dulin's incarceration is nowhere near as simple as it sounds; told in full, his arrest raises questions about a Metro Police practice the State Supreme Court recently suggested is unconstitutional .

At the heart of this complex matter lies one basic question: Was it fair for Dulin to be arrested for a petty crime - a crime Mayor Oscar Goodman said a tourist could commit without penalty - just because he's been arrested before?

The Metro officers who spotted Dulin , a paralegal, jaywalking responded by running a record of his criminal history. Once they discovered he'd been arrested a number of times, mainly in connection with burglary and possession of stolen goods, the officers decided to arrest him. This is the method of Metro's Downtown Initiative, which seeks to clean up the seedier section of town by driving out undesirables.

Whether a person is undesirable is partly determined by his past. Have a robust arrest history? Consider yourself unwelcome around Fremont Street.

Under the Downtown Initiative, misdemeanor s that could be waved away with a citation become arrestable offenses, depending on who you are.

Dulin's jaywalking got him handcuffed and searched. That search turned up 1 1/2 grams of marijuana and a hypodermic device, which led to his 12 - to - 48 - month prison sentence.

This, the Nevada ACLU argues, isn't fair. Isn't constitutional.

"The police arrested him for what they saw on his record," ACLU public advocate Lee Roland said. "He became one of the bad people, and was treated differently because of it."

The civil liberties organization has been fighting the downtown initiative since its official inception in 2003 and earlier, when the program was nameless. The organization vehemently insists that deciding to arrest a person because of his criminal record is unconstitutional. Dulin's case, according to the ACLU, is a flawless illustration .

Dulin decided his incarceration was unlawful and argued his case all the way to the state Supreme Court - in legal terms, pro se, meaning without an attorney.

In July 2006, the Supreme Court determined Dulin's argument had merit. The court called Dulin's arrest unlawful if it was based solely on the Downtown Initiative, which the court also noted was likely unconstitutional.

In a written order, the court stated: "It appears that the Downtown Initiative may be a violation of separation of powers ... It appears that the police officer never actually exercised his discretion in determining whether to arrest (Dulin), instead he followed the policy of the Downtown Initiative ... it did not appear that there was any other reason."

The Supreme Court sent Dulin's case back to District Court for a hearing to address the legality of his arrest, and more specifically, whether his court-appointed attorney was wrong to advise Dulin to plead guilty to a crime he was arrested for only because of the initiative.

But when the case landed before District Judge Donald Mosley on May 11, the judge made an unusual confession: He hadn't read the Supreme Court's order. Moreover, he forbade any discussion of the Downtown Initiative . His decision was at cross purposes with the Supreme Court's reason for remanding the case to District Court , Roland said, which was expressly so the legality of the initiative could be discussed.

"The Supreme Court gave a pretty clear road map to the District Court to find out precisely why Mr. Dulin had been arrested," Roland said. "The whole system missed a pretty big constitutional issue. Meanwhile, someone who is being held unlawfully can rot in jail while the rest of the system fails."

Mosley denied Dulin's request for early release. The ACLU filed a brief on behalf of Dulin on July 11, urging the Supreme Court to "remedy the constitutional harms wrought on (Dulin) and end his unlawful incarceration."

The court's decision could have serious implications for the initiative, which the mayor has said he will endorse until a judge tells him not to .

Goodman was quoted in a 2002 Sun article about downtown police sweeps: "If the ACLU doesn't like it, there's always a courtroom. I love lawsuits."

Five years later, the mayor said nothing has changed, "except maybe enough people haven't been arrested."

Metro general counsel Liesl Freedman agrees with Goodman that the initiative does not encourage unconstitutional arrests. She said a criminal record is one of the variables officers must gauge when determining whether to make an arrest.

"I don't see it as a constitutional issue," she said. "Officers on the street are allowed to use their judgment based on the totality of circumstances.

In its written opinion in Dulin's case, the Supreme Court cited a state law that limits officer discretion, giving police the option to arrest for some lesser misdemeanor s only if the suspect doesn't have satisfactory identification or has a history of failures to appear in court.

Dulin had his identification and hasn't been cited for failure to appear.

Will Minor, Metro captain over the Downtown Area Command, said , under the initiative, chronic criminals are more likely to go to jail, but there isn't a formula for determining who should and who shouldn't be arrested.

"Discretion is part of what we do every day," he said. "The law isn't black and white. There's a lot of gray in it. Police work is a gray area."

Police schedules overlap twice a day. Day shift and swing shift cops are on the streets simultaneously for about two hours. The same thing happens when the swing shift switches with graveyard. During these overlaps, some officers will focus on "proactive policing," Minor said, seeking out individuals committing minor offenses.

Property crimes have fallen almost 14 percent from this time last year, Minor said, thanks to the initiative.

"It's not John Q. Citizen that happens to cross outside the crosswalk," he said. "It's chronic nuisance types."

Sylvia Lazos, a professor of constitutional law at the William S. Boyd School of Law at UNLV, said the constitution is clear: When it comes to making an arrest, a person's past status should not be relevant .

"Discretion in criminal law is not supposed to be about making a judgment if you are a good person or bad person based on previous records," she said. "The city should consult carefully with its lawyers and rethink their position on these cases."

Dulin's case could force the city to reconsider its position; the ACLU brief filed on his behalf is sitting before the Supreme Court again, awaiting a decision on whether the 50 - year - old should be allowed to appeal his case, or simply be released on the spot. If the court decides to release Dulin because of flaws in police arrest procedure, it could give the ACLU ammunition to go after the entire initiative.

"What happened to Mr. Dulin," said Gary Peck, executive director of the Nevada ACLU, "is a sobering reminder that civil libertarians have an awful lot of work to do to."

archive