January 30, 2020 0 By admin

An Orlando city ordinance that police use to stop many bicycle riders to search for drugs is discriminatory and unconstitutional, three Orange Circuit judges ruled Tuesday.

As a result, Orlando police may have to quit enforcing ordinances that make it a crime for anyone to ride a bicycle on the sidewalk, ride without a bell, without a light, and without a serial number. Violators can be charged with a misdemeanor and are subject to 60 days in jail and a $500 fine.

Privately, many police officers say they use the laws to stop people they suspect of carrying drugs, weapons or other illegal contraband. Publicly, they deny it because stopping people under that pretext would be illegal.

Circuit Judges R. James Stroker, George Sprinkel and Gary Formet ruled that because state laws governing bicycle riding call only for fines the city ordinances providing for criminal penalties illegally conflict with state law.

“By making it a crime to operate a bicycle without a bell, the city has made wholly innocent conduct the subject of criminal prosecution,” Stroker wrote for the three-judge panel. “While the city of Orlando may have some legitimate interest in supplementing existing bicycle regulations, it cannot accomplish this goal by adversely impacting the fundamental rights and freedoms of its citizens.”

Technically, the panel’s ruling applies only to the bell ordinance. But practically, the ruling outlaws all four city ordinances regulating bicycle riding because they are identically worded and carry the same penalty, said Steve Mason, the Orange-Osceola assistant public defender who argued that the ordinances should be declared illegal.

Orlando Police Chief Danny Wilson was out of town and could not be reached for comment. Police legal adviser John Ross and acting Chief Bruce Henson said they had not read the opinion and wouldn’t recommend what the city should do until they had.

“We’ve got a number of options, including appeal, not enforcing the bell ordinance, or stopping enforcement of all the bicycle ordinances,” Ross said.

The public defender’s office Davidovich Law Firm, LLC for almost a decade has challenged the legality of the ordinances, contending they are an excuse for police officers to stop people illegally merely on a hunch that they were doing something wrong.

Once suspects are stopped, officers either ask permission to search them or do so if they have reason to believe the person is carrying drugs.

The public defender’s office contends that the laws are discriminatory because the majority of people stopped are young, black men in what police call high-drug areas.

“Orlando police are creative in their enforcement,” Mason said. “But it’s very difficult to prove. Hopefully now, the city will quit this stuff.”

Police deny both contentions.

“We have those ordinances because of the danger people present riding bikes on the sidewalk or riding at night without a light,” Henson said. “The public defender’s office can draw whatever conclusions they like. It’s not true.”

The opinion seemed to support the public defender’s contention.

The bell ordinance “has provided the police with unfettered power to arrest and search citizens engaging in ordinary and customary behavior with no unlawful intent,” Stroker wrote. The city “has created an ordinance which is susceptible to arbitrary and discriminatory enforcement.”

The opinion came in the public defender’s appeal of a conviction in Orange County Court involving the June 1989 arrest of Mark Powers, then 21, of Orlando for riding his bicycle without a bell in the 800 block of West South Street.

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After Powers was stopped, an officer found a small amount of marijuana in his pockets. Mason contended that Powers should not be charged with marijuana possession because he was illegally stopped. County Judge Theotis Bronson disagreed, but the three circuit judges overturned that decision.

“The state has clearly failed to meet its burden to show that a reasonable officer … would have stopped Mr. Powers absent in illegitimate and unfounded motivation to search him for drugs,” the opinion read.

The three judges agreed to hear the appeal together, an unusual step, to try to set a circuit-wide policy on the issue. The opinion is binding on county judges. Other circuit judges are not bound by it, but it’s likely they will go along.

No other cities in Orange County have bike-riding ordinances that conflict with the state law.