Drop That Red Cup! City Criminalizes College Parties

College life may include studying late in the library, going to class in pajamas, ultimate Frisbee, or engaging in an age-old college tradition: the college house party.

"We've had a couple here, My roommate really likes the Risky Business theme." says Nick Quandt, a resident of Orange, California, and a student at Chapman University. "Sometimes you'll get back to the house around nine o'clock and there'll be a couple freshman at your house that think the party starts at nine o'clock and nobody else gets there till eleven."

The parties happen as often as you'd expect in a college town, but not everyone is happy about them. Orange residents at a city council meeting April 12, 2016, described college students urinating and vomiting in front yards that were not their own and noise that went well into the night. Even city council members like Fred Whitaker have experienced the behavior.

"You had probably 400 kids that were in a backyard about 3 blocks from my house," said Whitaker, who along with the rest of the city council helped to pass a new ordinance that tightens rules on loud and unruly parties which, according to Whitaker, are so bad they affect neighbors' ability to enjoy their own property. He says it come down to the question of "How do you create incentives to not have people affect other people's rights?"

The ordinance sounds reasonable on its face (Who wants someone peeing in their front yard?), until you look at the details. The ordinance makes it unlawful for any person to be "present at, attend or participate in a loud or unruly gathering," and to do so in a way that "contributes" to the gathering. According to city code, the punishment could be hundreds of dollars worth of fines and the violation amounts to a misdemeanor.

"There are important consequences to a misdemeanor conviction or any criminal record," says Erwin Chemerinsky, Dean of the University of California, Irvine, Law School. "This isn't gentle by any means."

Wayne Winthers, the city attorney for Orange gave a little more insight into what contributing might mean at the city council meeting, April 12, saying "The individual has to be doing something more than just walking by at the time [...] Some indication that they are contributing to the party. They may be with their red cup or they're jumping up and down to the music or whatever it might be, but, something so an officer has to observe something more than just mere presence."

So holding a red cup or dancing at a loud or unruly party could mean you are guilty of a crime? The ordinance didn't seem specific enough to answer "no" to this sort of question. "It's just so vague," says Quandt. "And also [...] blatantly directed at college students."

"I think the reason that you don't want it to be that specific is because the more specific you get it, the more you can game the system," says Whitaker. Instead, the ordinance gives discretion to the officers on the scene to decide if someone is participating in the party. "It's a 'when you see it, you know it' [situation]," says Whitaker.

"To say we will leave it to the discretion of the officer to decide what's unruly by itself says this ordinance violates the constitution," says Chemerinsky, who also points out that part of the problem with the ordinance is that it is not clearly written, "It says 'to do so in a manner that contributes to the loud or unruly gathering.' I assume just by being there you're contributing to the gathering. Is more required than that? The ordinance doesn't say."

That lack of specificity means practically anyone could be guilty of a criminal behavior. Chemerinsky says that under the constitution, any law must be clear as to what is allowed and what is prohibited. "In fact one of the concerns is that officers would have too much discretion and be able to use it in a discriminatory way."

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