To curb graffiti, cities like Lewiston and South Portland are relying on overbroad rules. Here’s how to make stopping vandalism good for the public, police and the artists.

In “The Tipping Point,” best-selling author Malcolm Gladwell describes a “magic moment when an idea, trend or social behavior crosses a threshold, tips and spreads like wildfire.”

Maine is currently facing several tipping points. Our ponds and lakes, for example, are threatened by invasive aquatic plants which, once introduced, spread rapidly through bodies of water. Much like the threat posed by these plants, Maine is threatened by unauthorized graffiti, criminal vandalism which, once established, also spreads rapidly.

Studies show such graffiti begets more of the same. A U.S. Department of Justice report says, “While a single incident of graffiti does not seem serious, graffiti has a serious cumulative effect.” In cities where graffiti has reached a tipping point, ongoing cleanup can become a significant taxpayer expense, like snowplowing and trash removal.

This is why Lewiston is to be commended for its efforts to control unauthorized graffiti, before it reaches a tipping point. Unfortunately, the anti-graffiti ordinance approved in Lewiston – much like the ordinance enacted in South Portland earlier this year – is seriously flawed.

Both cities rely on an outdated 1996 model anti-graffiti ordinance created by the International Municipal Lawyers Association, which has a number of significant unintended consequences that create more legal risk for law-abiding citizens than graffiti vandals.

The 1996 model anti-graffiti ordinance is a classic example of the devil being in the details. There is no indication that either Lewiston or South Portland desired these unintended consequences, but they are an inherent part of the 1996 model ordinance.

How could such a well-intended law end up with so much negative baggage? The problem with the 1996 ordinance is that it is staggeringly overbroad, and sweeps in not just graffiti vandals but other citizens who have no intention to engage in unauthorized graffiti.

The model ordinance’s legislative misadventure begins with its definition of “graffiti implement,” possession of which, under certain circumstances, is an offense. Instead of leaving the definition of graffiti implement at spraypaint and its ilk, the ordinance says any device that can leave a mark on any surface is a restricted graffiti implement.

Of course, the scope of things which can leave a mark on any surface is enormous: it includes not only pens, pencils, chalk, crayons and supplies used by students and artists, but it also includes myriad items with purposes not even remotely connected to graffiti: soccer shoes, bicycle tires, gardening supplies and keys, for example.

The model ordinance even includes “brush” in the definition of graffiti implement, without a limitation that it means “paint” brush. So, as written, hair brushes and toothbrushes could fall within the definition of graffiti implement.

That’s not what the cities intended, but that’s what the law says.

Unfortunately, problems with the 1996 model ordinance don’t end with its overbroad definitions. It also prohibits possession of these broadly-defined “graffiti implements” by schoolchildren within 50 feet of school grounds. Nearly all school supplies fall within the implement definition, which means each time a student walks to school with highlighters, paint sets, pens, pencils or chalk, the child is committing an offense and subject to a $500 fine.

The ordinance does create one limited exception for children possessing “broad tipped markers” (there is no exception for other school supplies) but this backfires as well, because it still ridiculously places the burden on K-12 students to prove they should not have to pay the fine.

School children are not the only ones caught in the extraordinarily broad net cast by the model ordinance.

The ordinance also says “any person” who possesses one of these graffiti implements in a “park” or “public building” without the city’s “permission” commits an offense for which there is a $500 fine.

In other words, if someone went into Lewiston City Hall to testify about this ordinance without first obtaining the city’s permission to possess pens, highlighters and markers on city property, the person would be committing an offense under the 1996 ordinance. If the person walked through a public park, or by a public school, while en route to city hall, they would be committing a second offense (now a $750 fine).

Obviously, these unintended consequences from an outdated model ordinance are the byproduct of an old, bad law repudiated by most of the cities that enacted it. Lewiston should have rejected the 1996 model and, instead, consider an ordinance more representative of mainstream anti-graffiti laws in 2007. In fact, South Portland is considering whether to replace its current law with a more state-of-the art anti-graffiti ordinance.

A huge step in the right direction would be narrowing the definitions of graffiti implements. In addition, the ordinance should move away from the impractical prohibition of school children possessing basic supplies. Similarly, the offensive provision requiring city permission to possess pens and markers in city property needs to be changed.

Making it an offense to posses specific graffiti implements under circumstances that shows clear intent to commit graffiti is a better approach. In addition, Lewiston should seriously consider a rapid removal provision, as rapid removal of graffiti has been identified as the single most important and effective way to prevent its recurrence.

What about graffiti walls? The research appears to cast doubt on their effectiveness, but every municipality is different and graffiti walls may just prove effective in Lewiston. Although I’m unconvinced that they work, I think the mayor of Lewiston, Laurent Gilbert, deserves credit for his outreach to the community on this issue.

He also deserves credit for his willingness to test the hypothesis that graffiti walls are part of an effective response to unauthorized graffiti. Creativity and open communication are good things and, in the long run, tend to produce good results, so I think the mayor is on the right track, regardless of whether this particular experiment is effective.

South Portland declined the option of a graffiti wall and it will be interesting for both cities to compare their results – along with Portland, so far the state’s only graffiti wall – to see whether a graffiti walls really work in Maine.

Finally, what about self-styled graffiti artists who claim their work is a means of self-expression? That may be so, but unauthorized graffiti is a crime and should be treated as such. Besides, unauthorized graffiti is a limited and outdated means of expression. Millions of people are expressing themselves to the world though their blog, podcast or videocast. Eventually, some graffiti artists will realize instead of spraypainting someone else’s property, they can create their work on a computer, digitize it and publish it to a global audience over the Internet – all without having to break the law.

The next phase after that will occur when some of these publishers develop a business model for commercializing computer-designed graffiti art. Then these outdated anti-graffiti ordinances will really become dinosaurs.

Dave Canarie, of South Portland, is an attorney who has studied anti-graffiti efforts in Maine. The South Portland City Council is scheduled to review changes to its anti-graffiti ordinances on Monday, Dec. 10.

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