A peanut butter and jelly sandwich and a not-quite-ripe pear are rarely as controversial as when Stephen Dear ate them earlier this week.
Dear, a Carrboro resident for 21 years and executive director of People of Faith Against the Death Penalty, was munching his lunch at the intersection of Jones Ferry and Davie roads to protest a town ordinance that makes it a misdemeanor to "stand, sit, recline, linger or otherwise remain" at the corner after 11 a.m. and before 5 a.m. each day.
By "loitering" on the corner outside approved times, Dear is raising questions of whether the ordinance, which applies only to that corner, is constitutional.
The site is near both a largely Latino apartment complex and N.C. Highway 54, which makes it convenient for day laborers and contractors. Most days, 10 to 30 people gather at the corner, many of them looking for work.
The ordinance was passed by the Board of Aldermen in 2007 after neighbors complained that some people on the corner were drunk, urinating in public and harassing women.
One neighbor, who wanted to remain anonymous, told the Indy last week that she doesn't mind people looking for work—just not on her corner. Town staff says the problems stem from people who are hanging out, not those seeking a job.
The ordinance may have helped curb unsavory activity. Carrboro Police Chief Carolyn Hutchinson reported to the Board of Aldermen at a September meeting that loitering complaints at the corner have dropped from 69 in 2008 to only one this year.
No one has been arrested. Police remind people about the ordinance and they disperse, Hutchinson said.
But day laborers say they feel intimidated and don't have any other place to find work. At a press conference last week that occurred at 11 a.m. to challenge the ordinance, two day laborers said they depend on jobs they get on the corner to survive.
"This is one of the only venues where we can provide for our families," Angel Martinez said. "Once we are asked to leave, there's nowhere else we can go."
At last week's protest, Dear presented a letter to the town urging the board to rescind the ordinance at its regularly scheduled meeting. More than 100 local leaders, including members of the Chapel Hill and Carrboro Human Rights Center, the Orange County Democratic Party, the local NAACP and business owners, signed it. However, the board voted 4-3 in favor of keeping the ordinance.
Dear's civil disobedience puts the town in a tough position. If police don't arrest him, opponents of the ordinance could point out that it's being unevenly enforced and shouldn't stand. If officers charge him with a misdemeanor, he will challenge the rule in court.
"I'm willing to go to jail for this, and if anybody goes to jail for this, the town will face a court battle that it will lose," Dear said.
"If they ignore people violating the ordinance, then they can't keep the ordinance, so either way the town will have to get rid of the ordinance and then our community will win. It will be a victory for the community because we can go back to having an open and inclusive dialogue with everybody, including day laborers, without threatening them."
The constitutionality of the ordinance has been challenged since it was passed. Opponents say it limits free speech, free association and the "fundamental right to movement" by making it illegal to stand on a public corner.
The neighbors' complaints could be addressed by enforcing existing laws against public intoxication, harassment and littering, they argue.
Town Attorney Mike Brough, who drafted the ordinance at the request of the board, acknowledged at the 2007 meeting during which it was adopted that he doesn't know if it is constitutional.
"This, as Carrboro often does, puts us out front in an area where I cannot find any specific case that deals with this sort of an ordinance," Brough said. "Is it subject to constitutional challenge? Yes. Would we survive it? I don't know ... My own view is that it's not overbroad and it's not vague. I think it's defensible, but I'm not going to sit here and give you odds on if it were to be challenged."
Mayor Mark Chilton said at the 2007 meeting that the town has authority to regulate street traffic.
The Southern Coalition for Social Justice, a partner in last week's press event, submitted a letter to Carrboro this summer arguing that case law casts doubt on the ordinance.
SCSJ points to North Carolina v. Mello, a 2009 N.C. Court of Appeals decision that struck down Winston-Salem's anti-loitering ordinance. The law was aimed at curtailing drug activity by making it illegal to be in a location frequented by drug users and to engage passersby in conversation. It was deemed "unconstitutionally broad" and "unconstitutionally vague."
Earlier this year the U.S. Ninth Circuit Court of Appeals ruled in Comite de Jornarelos de Redondo Beach v. City of Redondo Beach, Calif., that an anti-loitering ordinance targeting day laborers was excessive in restricting free speech and that existing traffic laws were sufficient to regulate problems at two intersections.
Other Triangle communities have different laws to address the issue of day laborers. Raleigh bans seeking employment on all streets and sidewalks. Durham restricts people from stopping vehicles to solicit work. Chapel Hill requires a permit to offer goods or services.
Carrboro is unique because its ban is site-specific.
The Board of Aldermen will receive a follow-up report on the ordinance from town staff at its Nov. 22 meeting. The board could consider hiring an outreach person at the corner who would help workers find a job, connect them with social services and employment resources and ensure that litter is picked up. There could also be restrictions on the hours during which employers can solicit work and the creation of a "no-stopping" zone at the corner.
The momentum is with the day laborers, though, as all four candidates running for the board have said they would rescind the ordinance if elected. That means, even if those who voted for the rule are entrenched, the board would then split 4-3 against the anti-loitering law.
Incumbent Lydia Lavelle, a law professor at N.C. Central University who was not on the board when it passed the ordinance, said at a meeting in September that a legal challenge would be damning no matter the outcome.
The rule could be upheld in court, perhaps setting a precedent for other less Latino-friendly communities to enact even stronger rules targeting immigrants, she said, or it could be overturned, cementing Carrboro as a town that passed and enforced a rule that violated civil rights.
"I don't want to see a casebook someday that has Carrboro v. Morales," she said.
Intern Jason Y. Lee contributed to this story.