The Colorado House Judiciary Committee was wise Wednesday when it tabled — but didn’t kill — a proposed law that would have made possessing “graffiti tools” a crime, without defining what such “tools” were.
Graffiti isn’t art. It’s an obnoxious form of vandalism that hurts property values and undercuts the sense of safety and security that citizens are entitled to feel in their homes or places of business.
The Post has long supported reasonable efforts to prevent, reduce and prosecute this crime. But like every other law enforcement effort, the fight against graffiti has to be balanced against the rights ensured by the U.S. Constitution.
Those rights include the Fourth Amendment’s protection against “unreasonable searches and seizures,” the Fifth Amendment’s guarantee of “due process of law,” and the Sixth Amendment requirement that accused criminals “have the right to be informed of the nature and cause of the accusation.”
Potentially, all three of these rights could be abridged by Rep. Jim Kerr’s House Bill 1023, which establishes the crime of possessing graffiti tools as a class 2 misdemeanor. Here is the entire language defining that crime:
A person commits possession of graffiti tools if he or she possesses a tool, instrument, or other article adapted, designed, or commonly used to commit or to facilitate the commission of an offense involving defacing public or private property and intends to use the thing possessed, or knows that another person intends to use the thing possessed, in commission of the offense.
Exactly what, pray tell, is “the thing” whose possession is thus outlawed?
The bill never answers that question. The silence is deliberate because several law enforcement officials testified that any listing of banned items would encourage vandals to use other tools instead. That’s a fair point, though using such unenumerated tools for graffiti would still be a crime even if possessing them was legal. But the open-ended language of the bill ensures that virtually any citizen could be guilty of possessing a “thing commonly used to commit graffiti.”
Having some spray paint or a marking pencil in your home should hardly make you a criminal.
Good graffiti prevention programs include better lighting, surveillance cameras, and community action efforts such as neighborhood watch. If an additional law banning “graffiti tools” truly is needed, it should at least specify the banned objects.
Merely outlawing “things” is an open invitation for police to search young people without probable cause, drag them into court without due process and punish them without ever having informed them of the specific “nature and cause” of their supposed crime.
To Rep. Kerr’s credit, he has identified a real problem.
Now, he needs to draft an constitutionally acceptable solution.
