|
|
|
 |
M E M O R A N D U M
TO: Mayor Bob Murphy
.......Lakewood City Council
FROM: Janet Young, Deputy City Attorney
............Office of the City Attorney
DATE: July 1, 2008
SUBJECT: Possession of Graffiti Materials
Background Information
Last year the Lakewood Police Department created a graffiti task force to develop a coordinated and effective method to prevent, report, enforce, and mitigate graffiti offenses within the City of Lakewood. The recommendations of this task force were presented to City Council on October 1, 2007. One of the task force's recommendations was that new municipal ordinances that regulate the possession of graffiti materials be adopted to help fight the problem of graffiti. Numerous cities across the state, including Denver, Arvada, Colorado Springs, Englewood, Littleton, Pueblo, Westminster, and Wheat Ridge, have ordinances that regulate the possession of graffiti materials by minors and adults.
Currently, Section 9.60.050 of the Lakewood Municipal Code prohibits the defacing of public or private property without the consent of the owner by painting, drawing, writing, marking, etching, carving, scratching or any other unauthorized marking by use of paint, spray paint, ink, knife, or by any other method of defacement. In addition to other penalties, persons convicted of defacing property are required to perform community service which shall include personally making repairs to any property damaged or properties similarly damaged. Lakewood does not regulate the possession of graffiti materials.
During the 2008 legislative session, House Bill 08-1023 was introduced that
would have criminalized the possession of graffiti tools. The proposed legislation
would have created a misdemeanor criminal offense that mirrored the state felony
statute that outlaws the possession of burglary tools. Possession of graffiti
tools would have been illegal if the person possessing the graffiti tools intended
to use the thing possessed to commit a crime. This legislation was postponed
indefinitely by the House Judiciary Committee and never became law. Senator
Betty Boyd was one of the sponsors of this legislation.
As an analogy, the state statute that makes it a felony offense to possess burglary
tools, Section 18-4-205, C.R.S. has repeatedly been upheld as constitutional
by the Colorado Supreme Court and not vague or overbroad in its reach. The criminal
statute does not prohibit the "innocent possession" of burglary tools
but instead requires intent by the accused or knowledge that another intends
to use the tool for a burglarious purpose. Likewise while the proposed definition
of graffiti materials would include such things as a can of spray paint, a spray
paint nozzle, a permanent broad tipped marker pen, it would only be illegal
for an adult to possess such materials if there was evidence to prove that the
materials were possessed with the unlawful intent. It would generally be illegal
for a minor to possess these items.
Proposed provisions of the graffiti materials ordinance
The proposed ordinance would do the following:
• Prohibit minors, except for a minor under the supervision of the minor's parent, legal guardian, instructor, employer, or a law enforcement officer, from possessing prohibited graffiti materials to include a can of spray paint, spray paint nozzle, broad tipped marker pen, paint pen, glass-cutting tool, or glass etching tool or instrument.
• Make it an affirmative defense to the charge of possession of graffiti materials by minors that the minor was within the minor's home; at the minor's place of employment and acting within the scope of that employment; upon real property with permission to possess such materials having been given by the owner, occupant or person having lawful control of such property; or attending a school or traveling to the school at which the minor was participating in a class that formally required the possession of the materials.
• A possession of graffiti materials by minors charge would not require proof that the minor possessed the prohibited graffiti materials with the intent to use them to commit a criminal act. Laws may constitutionally place restrictions on children that would not be permissible if placed on an adult. Government has broader authority over the activities of children and may take into account a child's vulnerability and inability to make critical decisions in an informed mature manner.
• Make it illegal for any person, including adults, to possess graffiti materials if he possesses any tool, instrument, or other article adapted, designed, or commonly used for committing or facilitating the commission of a offense involving damaging, defacing, or destroying public or private property and intends to use the thing possess, or knows that some other person intends to use the thing possessed, in the commission of such an offense.
Conclusion
It is anticipated that restricting possession of graffiti materials by juveniles as well as restricting adults from possessing such materials with the intent to deface property will assist police agents in combating the growing problem of graffiti.
 |
||
Americans with Disability Act (ADA) Notice |
||
