Legally EnforceablePatron Behavior Policies

Angela MooreIndiana State Library Intern

July 17, 2013

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Presenter Introduction Rising 2nd year law student

Not a lawyer

Summer legal intern at ISL Former librarian at Berne Public Library

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Disclaimer This is legal information, not legal advice

I cannot apply the law to your specific situation

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Overview Matter

What can we regulate? First Amendment protection

Manner Equal Enforcement Patron Notice Appeals Process Reasonable Penalties

Laws limiting libraries’ ability to regulate

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Matter of RegulationWhat are you regulating?

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What are you regulating? Behavior Conditions to enter library (e.g. hygiene) Speech Illegal Activity

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What are you regulating? Behavior

Examples: “Patrons shall be engaged in activities associated with

the use of a public library while in the building. Patrons not engaged in reading, studying, or using library materials shall be required to leave the building.” Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992)

No eating in carpeted areas No running in the library building

Legal criteria:1. Must be reasonable2. Must be related to library’s mission

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What are you regulating? Conditions patrons must conform to in order

to be allowed in the library e.g. Hygiene regulations/patron dress code

If you don’t wear shoes you can’t come in 1st Amendment right to receive information

Connected to freedoms of press, speech

Legal criteria:1. Serve significant government interest2. Narrowly-tailored 3. Ample alternative channels to receive information

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Case: Doe v. City of Albuquerque

Doe v. City of Albuquerque, 667 F.3d 1111 (10th Cir. 2012)

Sex-offenders banned from library Interferes with 1st Amendment right to receive

information

Library lost On procedural grounds (?) Library has “significant interest in providing a safe

environment for its library patrons, especially children.”

Would need to show narrow-tailoring & alternative channels for those banned to receive information

Maybe ok to limit hours

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What are you regulating? Speech

Be careful Content-neutral regulations only

Limit by time, manner (e.g. volume), or place1. Significant government interest2. Narrowly-tailored3. Ample alternative channels to receive information

Exceptions: Child pornography Obscenity, defined in IC 35-49-2-1 (≠ pornography) Harmful to minors

For meeting room policies, see webinar www.in.gov/library/law.htm

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What are you regulating? Illegal Activity

You don’t even need to put it in your policy But you may, and you may want to

Examples: Smoking Fighting: Bryant v. State, 2009 Ind. App. Unpub. LEXIS

821 (Ind. Ct. App. Mar. 16, 2009) Public indecency: Glotzbach v. State, 783 N.E.2d 1221

(Ind. Ct. App. 2003) Public indecency law: IC 35-45-4-1

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What are you regulating? Behavior

Reasonable + related to library’s mission Conditions to enter library (e.g. hygiene)

Narrowly-tailored, significant government interest, alternative channels

Content-neutral speech (time, manner, place) Narrowly-tailored, significant government interest,

alternative channels Content-driven speech

Don’t do it – protected by 1st Amendment Illegal Activity

Doesn’t need to be in your policy

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Manner of Regulation:Equal Enforcement, Patron Notice, Appeals,

and Reasonable Penalties

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Manner of Regulation Equal Enforcement Patron Notice

Appeals Process Reasonable Penalties

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Equal Enforcement & Patron Notice Equal Enforcement

Be consistent Treat teenagers the same as board members.

Policies/instructions clearly worded Don’t leave it to each employee to interpret the policy

Patron Notice Patrons should know how to be compliant

Post/hand out policies Policies clearly worded

Tip: Write down your policies!

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Equal Enforcement & Patron Notice Avoid vagueness and overbreadth

Vagueness means the language of the policy leaves too much open to interpretation e.g. Do not bother other patrons

Talking? Tapping pencil? Standing too close?

Overbreadth prohibits too much legitimate conduct e.g. only patrons reading a book can remain in

library Reading newspaper, looking for a book, asking

reference question, attending a program

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Case: Brinkmeier v. Freeport

Brinkmeier v. Freeport, 1993 U.S. Dist. LEXIS 9255 (N.D. Ill. July 2, 1993)

Patron removed from library under policy to “preclude any person who harasses and/or intimidates other library patrons or employees” An unwritten policy

Library lost Lacks reasonable boundaries

What if patron harasses other patron off library grounds?

Definition of harass? All forms of harassment lead to ban

Precluded from library for how long? Take-away: put your policies in writing!

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Case: Kreimer v. Bureau of Police

Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992)

Behavior: “Patrons shall respect the rights of other patrons and shall

not harass or annoy others through noisy or boisterous activities, by staring at another person with the intent to annoy that person, by following another person about the building with the intent to annoy that person, by playing audio equipment so that others can hear it, by singing or talking to others or in monologues, or by behaving in a manner which reasonably can be expected to disturb other persons.”

Library won Reasonable, related to library’s mission “reasonably can be expected to disturb”

Not catering to individual patron sensitivities

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Case: Kreimer v. Bureau of Police Hygiene/dress code

“Patrons shall not be permitted to enter the building without a shirt or other covering of their upper bodies or without shoes or other footwear. Patrons whose bodily hygiene is offensive so as to constitute a nuisance to other persons shall be required to leave the building.”

Library won Nuisance has a legal meaning Library has significant government interest in

protecting all patrons’ right to receive information

Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992)

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Case: Armstrong v. D.C. Public Library

Armstrong v. D.C. Pub. Library, 154 F. Supp. 2d 67 (D.D.C. 2001)

Homeless man not allowed to enter library due to “objectionable appearance” 1st Amendment implicated

Library lost Patrons denied entrance if appearance is

“objectionable (barefooted, bare-chested, body odor, filthy clothing, etc.)” “Objectionable” has no legal definition “etc.” is too open to individual interpretation

Guards given no guidance for enforcement

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Equal Enforcement & Patron Notice Bad policy language:

Language that depends on interpretation Does not give patrons notice of what is allowed Individual employees will enforce differently

Policies without reasonable boundaries Examples:

“etc.” “includes but is not limited to” “objectionable” or “offensive” (without definition)

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Equal Enforcement & Patron Notice Good policy language:

“nuisance” or other words with legal meaning IN nuisance law: IC 32-30-6-6

Injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property so as essentially to interfere with the comfortable enjoyment of life or property

Behavior that “can reasonably be expected to” have a particular result

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Appeals & Reasonable Penalties Appeals

As feasible More severe penalties, require tougher appeal process

Doesn’t need formal court process (e.g. jury of peers)

Reasonable Penalties Barring people from the library implicates 1st

Amendment right to receive information No lifetime bans for first-time minor infractions Ok to increase penalty for repeated infractions 6-mo. ban for offensive note to another patron ok

because he interfered with her right to use library Tronsen v. Toledo-Lucas County Public Library, 2008 U.S. Dist. LEXIS 20359

(N.D. Ohio, June 30, 2008) Good to have in writing

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Case: Grigsby v. City of Oakland

Grigsby v. City of Oakland, 2002 U.S. Dist. LEXIS 10621 (N.D. Cal. June 10, 2002)

Patron told to leave children’s room after staring at young woman and children

Two days later, patron returns, has confrontation with security guard, police make him leave library

Patron brings due process claim, says he should have been allowed an appeal before eviction

Library wins for two reasons:1. Intrusion on patron’s rights was minimal (a few

hours)2. No legal reason why appeal must be before eviction

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Case: Doyle v. Clark County Pub. Library

Doyle v. Clark County Pub. Library, 2007 U.S. Dist. LEXIS 102629 (S.D. Ohio July 3, 2007)

Patron barred for two years after following, staring at, and harassing another patron

Patron given right to appeal with legal counsel to library director

Patron says he should have been given:1. Chance to confront accuser2. Trial by jury

Library wins, because those rights do not apply to library discipline hearings

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Case: Neinast v. Columbus Met. Library

Neinast v. Bd. of Trs. of the Columbus Metro. Library, 346 F.3d 585 (6th Cir. 2003)

Barefoot advocate given one-day eviction after multiple warnings to wear shoes in library

Library won Gov’t interest: patron safety/library economic

health Alternative channels: wear shoes Eviction procedure explained to patron, patron

given chance to tell his side

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Sample Language To provide notice on a patron behavior policy

1. Violators will receive a warning and an opportunity to cease.

2. Repeat violations may result in suspension of Library privileges.

3. Appeal requests may be made in writing to the Library Director.

4. Further appeals may be made to the Library Board.

From Mary Minow’s presentation: Writing a Patron Behavior Code (funded in part by IMLS through LSTA), available at: http://infopeople.org/training/writing-library-behavior-code

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Appeals & Reasonable Penalties Bigger punishment = more rigorous appeals

process Appeals are not court hearings Penalties: ok to consider

Repeat infractions Effects on other patrons’ right to receive

information Write out a penalty table/matrix/chart

à la this table of army penalties

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Specific Laws Limiting Regulations

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Limiting Laws Service Animals

Americans with Disabilities Act Breastfeeding

IC 16-35-6-1 Firearms

IC 35-47-11.1

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Service Animals Service dogs must be allowed w/two

exceptions:1. Animal is out of control2. Animal is not housebroken Patron must be allowed to remain without animal

DO NOT ask about disability or certification May ask:

1. If animal is required because of a disability2. What tasks the animal is trained to perform

Code of Federal Regulations: 28 CFR 35.136 See ADA webinar: www.in.gov/library/law.htm

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Breastfeeding It’s behavior, however: IC 16-35-6-1

“Notwithstanding any other law, a woman may breastfeed her child anywhere the woman has a right to be.”

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Firearms - IC 35-47-11.1 In general:

A public library cannot regulate the carrying of firearms, ammunition, or firearm accessories Cannot create new policy Old policies are void

Exceptions: Can create policy prohibiting/restricting intentional

displays of firearms at library’s public meetings Can prohibit on-duty employees from carrying

firearms or having in plain sight on library grounds Cannot prohibit out of view storage in locked car

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Firearms - IC 35-47-11.1

http://www.in.gov/library/files/2011_Legislation_-_SEA_292_Firearms_-_Analysis_and_Guidance.docx

Legal alternatives to restricting firearms Regulate behavior

“Patrons shall not utilize library property or other property that has been brought into the library in a manner that creates a safety hazard for library patrons.”

“Patrons shall respect the rights of other patrons and shall not harass, annoy, or intimidate others through noisy, boisterous, or threatening activities;…or by behaving in any other manner which reasonably can be expected to disturb other persons.”

Manner of regulation requirements still apply

Read it for yourself: IC 35-47-11.1

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Summary Regulate behavior or hygiene; only use time,

manner, or place restrictions on speech Enforce equally

Don’t leave it to individual employees to interpret Provide notice

Clear language, post policies Appeals process

As feasible Reasonable penalties Law prevents you from regulating some

activity

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Resources ALA Guidelines for the Development of Policie

s and Procedures Regarding User Behavior and Library Usage

Michigan State Library’s “Four Tests for a Legally-Enforceable Library Policy”

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QuestionsFor questions about this presentation, contact: Angela Moore: mangela@library.in.gov

At ISL until July 31st

For questions about specific regulations at your library, contact your library’s attorney.