University of Michigan taking the wrong approach to revising its trespass policy
The University of Michigan’s approach to revising the trespass policy is wrong. They are having lawyers look at the law and say how can we keep doing what we are doing but not get sued for violating civil rights.
Instead they should asking: Are we violating peoples civil rights and is a trespass warning the most effective way to protect persons or property? Then ask how we can change the policy so we do not violate their civil rights and be more effective?
Some of the worst violations of civil rights occur when DPS (Department of Public Safety) officers violate the following principles:
â€¢ A trespass warning should not be used when it is more appropriate to seek a personal protective order or when a person should be charged with a crime, such as stalking or harassment. This is because the subject should have the right to be heard by a judge, who is impartial and will protect the subject’s civil rights.
â€¢ A trespass warning should not be issued without probable cause. Probable cause requires more than mere suspicion. The university rank of the complainant should not affect the officer’s judgment of whether or not there is probable cause (i.e. just because a chairman says it doesn’t make it true).
â€¢ A trespass warning should not be used to punish someone beyond the penalties that are allowed under the law.
â€¢ If a trespass warning is issued the subject has a right to an appeal before an impartial party with rights of due process.
The university’s proposed changes do not guarantee these principles and in fact are not really changes at all.
They still do not have to tell the person why they have been trespassed or what evidence they have to show that they have done something wrong.
They don't have to present any evidence to anyone except maybe their supervisor but the sayso of a chairman or a dean will undoubtedly suffice (in one case the subject was told by the police chief that he could not rescind the warning without the approval of her chairman. When she tried to get an appointment with her chairman, DPS told her that if she called him again she would be charged with harassment).
The time limit is not specified and I am sure that they will say that it can be renewed at the discretion of the police chief.
The police chief is still the final arbiter. Even though they say someone can take a grievance to the DPS Oversight Committee, the committee still only has an advisory role. They talk about preserving privacy but the DPS records are at least as accessible under FOIA as the DPS Oversight Committee's.
Even though they say they will balance the free speech policy against the safety policy, it will still be up to the DPS officer and under the direction of the university administration.
They can still use the trespass warning instead of a personal protective order.
Would any of the controversial cases have been handled differently under the proposed new policy? I don’t think so.
If you look at the Andrew Shirvell case, Shirvell was accused of picketing in front of Chris Armstrong’s fraternity, videotaping outside his fraternity house during a party, confronting Armstrong at a protest, and following a friend at a bar in hopes of running into Armstrong. None of this was on university property and so the trespass warning would not have prevented any of this behavior. The only thing that happened on campus was when Shirvell asked to address the Michigan Student Assembly. The county prosecutor said that he violated no laws and Armstrong withdrew his request for a PPO, so we will never know whether the judge would have found any of his behavior unlawful. Under the newly proposed policy nothing would change.
If you look at the cases of Andrei Borisov, Linda Martinson and many others, there was no investigation by the DPS before issuing their trespass warnings. They were issued on mere suspicion based on a report from a chairman or dean. In Dr. Borisov’s case, his chairman even acknowledged that she didn’t know if the allegations were “true or untrue.” There are several other cases where a subordinate has charged a superior of assault but the DPS always finds that there is insufficient evidence. This appears to be a violation of the equal protection clause of the Constitution. Would any of these cases be handled differently under the newly proposed policy? I don’t think so.
There’s the case of Ray Berger, the retired Flint factory worker who served as an usher at U-M football games and was given a trespass warning and had his season tickets revoked because he was perceived by the athletic department to be harassing them about getting his job back. This is an example of using a trespass warning to punish someone beyond any penalty that he would have been subject to even if they had shown that he was breaking the law. This is still allowed under the newly proposed policy.
Just a few weeks ago, a group of students were found to be in possession of marijuana on the Diag. One was an EMU student, so in addition to getting a civil citation, he was given a trespass warning and banned from U-M property for life. He gets a punishment not prescribed by the state or municipal drug laws. This is still allowed under the newly proposed policy.
There are many more cases where the university administration has used the threat of a trespass warning to intimidate whistleblowers or protesters, including my case. Thus, the arbitrary and abusive use of trespass warnings is amplified by many more threats to use them.
The newly proposed policy would not change how any of these controversial cases would have been handled and therefore, the proposed policy changes are inadequate to protect the civil liberties of members of the university and Ann Arbor community.
Douglas M. Smith is a retired professor in the College of Medicine at the University of Michigan. He has been actively involved in ongoing efforts to change the university’s trespass policy.