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Posted on Sun, Apr 10, 2011 : 5:50 a.m.

University of Michigan taking the wrong approach to revising its trespass policy

By Guest Column

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:

• 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.

• 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).

• A trespass warning should not be used to punish someone beyond the penalties that are allowed under the law.

• 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.



Mon, Apr 11, 2011 : 11:57 p.m.

Two extremes of this that I have seen in my life: In Norfolk many yards sport signs that say "Sailors and dogs stay off the grass" and sailors can be arrested if they leave the sidewalk. On the other end of the scale was the US Naval Academy that was declared a national park, so with the exception of the dorm rooms and some classroom buildings anyone was allowed anywhere. Right now the policy at the U of M reminds me more of Norfolk than the Naval Academy. Could it be that Navy is better than the U of M at something?


Sun, Apr 10, 2011 : 10:25 p.m.

Heil!... Heil!... to Michigan... the leaders and best!! Heil Coleman! You were expecting something like real reform, with individual rights respected from this neo-fascist corporate bootlicker of an organization?!? It is good that you are publicizing this slight of hand. You should go to one of the local TV news stations and get them to run an update. Public humiliation on TV is one of the few things they respond to... I learned that from personal experience a number of years ago. Especially with something like this - very Kafka-esque! Stick it to them!

John of Saline

Sun, Apr 10, 2011 : 7:09 p.m.

The U has a tendency to overreach on such things. I remember as a student (early 90s) when we were told, in no uncertain terms, that the U had a speech policy and could expel you for words--or even for "conspicuous exclusion from conversation." The "process" involved secret, unaccountable tribunals to pass judgement. The Supreme Court had to intervene multiple times before the U would acknowledge that the First Amendment and due process both exist on campus!

Basic Bob

Sun, Apr 10, 2011 : 3:37 p.m.

Virginia Tech experience? Trespass warnings will not prevent an unstable armed individual from entering the campus. But he can be charged with trespassing in addition to kidnapping, murder,....


Sun, Apr 10, 2011 : 12:51 p.m.

There has to be a mechanism where a DPS officer can tell a disruptive individual to leave Campus and not come back until everything is sorted out without arrexting him and physically removing him or her. And sorting things out could mean going through the process of obtaining a PPO, a mental health exam to determine if someone is fit to return to work or class, or criminal charges if warranted. And a trespass order, in particular when time-limited and subject to appeal and modification seems like a suitable way of handling situations like this. And I'm glad that the U is working to make those changes, that is put time limits on them and a meaningful appeals process in place. If trespass orders couldn't be used in such circumstances, I'm afraid we would have more arrests on campus even in situations that don't warrant them, just to get a disruptive individual temporarily removed. This, by the way, could have for the individual worse consequences than the trespass order. And to the role of the department chairmen in this, it is quite naturally that DPS officers look to them for guidance. Department chairmen are the frontline administrators; and when employees are involved they often have the most information as they know the people, the history, etc. And they're also often the first who are called when there is a commotion, in particular when it's not clear whether DPS is needed or not, and more often then not they're the ones making the call. So it seems reasonable that the officers give quite a bit of weight to their appraisal of the situation, without of course, suspensing their own professional judgement.


Sun, Apr 10, 2011 : 1:24 p.m.

What meaningful appeal is proposed in the revised procedures. The police chief is still the final arbitor. No PPO or mental health exam or any other review is required.

Macabre Sunset

Sun, Apr 10, 2011 : 10:46 a.m.

Do you think the university needs the ability to quickly remove people who are attracted to campus, but have behaved erratically? Maybe the policy needs honing, but in the two cases you highlight, there was serious concern that the people in question were unstable. I would error on the side of allowing people freedom to access this public property, but when they start infringing on others' rights to a safe and un-harassed experience, the university needs some power. In those cases you highlight, a PPO would not have been effective. How far should we go to prevent a potential Virginia Tech experience? Or are those threats impossible to assess?


Sun, Apr 10, 2011 : 11:26 p.m.

@macabre- if you listen to the audio recording of the incident, you will see that the physical altercation was entirely one sided. The same was found by the faculty hearing committee and the DPS Oversight committee. Don't just assume that police don't just lose their temper.

Macabre Sunset

Sun, Apr 10, 2011 : 9:02 p.m.

Then what happened when he was directed by the police? There was unquestionably a physical altercation that could not have been 100% one-sided. Polite and gentle people understand that the police do not take sides. They protect and serve. And even if their direction is misguided, they aren't the problem. I sympathize with any scientist who feels his innovation was stolen. But there is recourse. There are proper channels to follow - even confrontational channels. His response was a bit scary, and not one that led a lot of credence to his claims.


Sun, Apr 10, 2011 : 5:30 p.m.

@macbre- if you knew Dr. Borisov you would know he is one of the most polite and most gentle people you will ever meet. You make a big mistake when you listen to the administration's propaganda.


Sun, Apr 10, 2011 : 3:47 p.m.

And a tresspass order would prevent a Va Tech type tragedy how?

Macabre Sunset

Sun, Apr 10, 2011 : 3:18 p.m.

I don't think the courts need to be tied up by dozens of individuals whose rights were infringed upon, but probably didn't quite meet a PPO standard. There's a difference between free speech and action, and Borisov and Martinson crossed that line. The University has an obligation to protect other students from that type of harassment. I understand the desire to protect the mentally infirm (or suspected mentally infirm) from losing any freedom, but it was a case where the right not to be harassed is stronger. Invoking these cases weakens your argument.


Sun, Apr 10, 2011 : 12:24 p.m.

There was never any credible evidence that either Borisov or Martinson was "unstable". If you mean that they were mentally ill, then the UM has a procedure involoving a panel of mental health experts that they could have used. In the Martinson case the panel said their was no evidence of mental illness. In the Borisov case they did not use the procedure at all. If you mean dangerous or stalking they could have gotten a PPO or if there was evidence of immediate danger they could have arrested them but they did not. The trespass warning is easy because the police are judge and jury and there is no avenue for judicial review.