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Matt McClain

It was 1989. D.C. had recently been dubbed the murder capital of the United States, and the crack wars were raging.

Then-D.C. Mayor Marion Barry (D) and council members were called before Congress to testify about what was going on in the nation’s capital, and they came bearing news. The city had just passed an anti-loitering law that allowed police to establish “illegal drug zones,” had set a curfew for juveniles and beefed up pretrial detention.

If that feels a little like déjà vu, it’s because Mayor Muriel E. Bowser (D) is recycling the same ideas more than 30 years later, as the District confronts <a href="https://www.washingtonpost.com/dc-md-va/2023/09/11/dc-violence-gun-deaths-residents/" target=_blank>a violent crime problem</a> that has drawn comparisons to the city’s bloodiest era, even though today’s underlying causes bear less similarity.

Most recently, the mayor <a href="https://www.washingtonpost.com/dc-md-va/2023/10/23/dc-public-safety-bill-retail-theft-police-reform/" target=_blank>unveiled</a> a proposal to revive those “anti-loitering” and “drug-free zones,” which would allow police to cordon off temporary zones for five days where anyone congregating to use, buy or sell drugs can be arrested if they don’t leave. The proposal is a throwback to a ’90s-era approach to cracking down on then-prolific open-air drug markets, a problem that has not been front-and-center in D.C. for years. Now, however, at a time when the major drivers of violent crime are not tied to drugs as they once were, Bowser may encounter some resistance to resurrecting the policy — primarily because of its history of drawing legal challenges and racial profiling concerns.

In D.C. bill, Bowser aims to curb retail theft, drug dealing, police reform

The 1989 iteration of the law was struck down in court as unconstitutional. The 1996 version that replaced it — and which Bowser’s proposal would revive — was never challenged in court but was repealed by the D.C. Council in 2014 when the attorney general’s office raised concerns that it ran afoul of the Constitution. Bowser herself, then a council member, voted for the repeal.

In rolling out the policy, Bowser and top officials expressed confidence it was legally sound and said it addressed what she described as a troubling “emerging trend”: plain-view drug dealing and use, visible in some of the District’s busiest corridors such as Chinatown and H Street. Bowser has acknowledged the problem is nowhere near what it once was, saying officials believe there are fewer than 10 such “open-air drug markets” today, compared with an estimated 60 in 2002. Still, Bowser’s top public safety officials, including acting Police Chief Pamela A. Smith, believe those problems can spill into violence or create other dangers. They declined to identify suspected locations.

“We want to blunt a trend we see in open-air drug dealing that we have pretty much squelched in this city” in all but a few areas, Bowser said, “and we don’t want that activity to proliferate.”

Council member Brooke Pinto (D-Ward 2), who chairs the public safety committee, welcomed Bowser’s proposal, noting that she has heard concerns across the city about hot spots for drug dealing or criminal activity, fearing police don’t have adequate tools to disrupt them. “This trend cannot continue without intervention,” she said.

But skepticism is already simmering. Council Chairman Phil Mendelson (D) threw cold water on the idea in an interview last week, doubting its relevance to D.C.’s violent-crime spike, driven by carjackings and homicides. He said he supported the idea of drug-free zones — and prostitution-free zones — more than a decade ago, but, citing the 2014 concerns from the attorney general’s office and the American Civil Liberties Union, he questioned whether Bowser’s proposal would hold up to legal scrutiny.

“I don’t oppose [anti-loitering statutes]. They’re just unconstitutional,” he said — an unsettled question that could drive debate within the council.

Pinto said she would hold a hearing on the legislation on Nov. 29.

Bowser’s proposal to revive the anti-loitering drug zones is a key facet of her Addressing Crime Trends Now Act, which would also target “organized retail theft” and roll back various provisions of D.C.’s major police reform legislation, passed after George Floyd’s murder. Bowser has also called on the council to pass her May <a href="https://www.washingtonpost.com/dc-md-va/2023/06/27/bowser-crime-bill-dc-council-opposition/" target=_blank>“Safer Stronger” legislation</a>, which would permanently expand pretrial detention for juveniles and adults charged with violent crimes and enhance gun penalties, among other things.

In recent years, cracking down on drug-dealing or drug-related loitering had not made up a significant part of city leaders’ crime strategy — but they’ve pointed to growing concerns about these issues among residents, raised in community meetings and in online neighborhood forums. Chinatown offers one example.

In its <a href="https://www.downtowndc.org/wp-content/uploads/2023/03/DowntownDC_BID_Gallery_Place_Chinatown_Corridor_Study_February2023_FINAL_WEB.pdf" target="_blank">2023 report</a> on the Gallery Place-Chinatown corridor, the DowntownDC Business Improvement District cited “visible drug sales” as a “complex challenge,” along with a growing number of homeless people and panhandlers, and called for “stronger police presence to disrupt drug sales activities.” (The DowntownDC BID did not respond to a request for comment.) During <a href="https://www.washingtonpost.com/dc-md-va/2023/08/05/chinatown-crime-dc-police/" target="_blank">an August community meeting,</a> a representative for Monumental Sports &amp; Entertainment, which owns the Wizards and Capitals, decried the “open-air drug transactions” outside of Capital One Arena, and residents <a href="https://www.washingtonpost.com/dc-md-va/2022/08/26/gallery-place-shooting-violence/" target="_blank">have described feeling on edge</a> due to both petty crime and serious violence.

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Howard Marks, vice president of the condo board for the Residences at Gallery Place, right next to the Metro station, said he and his neighbors were “totally thrilled” after Bowser unveiled the plan to revive anti-loitering drug free zones.

Marks had moved into his condo building in 2014, back when “there was a certain rhythm” to the neighborhood, he said, a sense of safety and ease on vibrant streets. The offices were filled. Since-shuttered Bed Bath &amp; Beyond was busy with shoppers right downstairs. “Then covid hit, and everything changed,” Marks said.

“Once the office workers left to work from home, the streets were virtually empty, and — if I can use the word without offending anyone — miscreants suddenly became larger than life,” he said.

Michael S. Williamson

Drug deals seemed  commonplace right beneath the historic Chinatown arch, and sometimes he smelled marijuana as he walked to and from home. Fare evaders hopped the gates and loitered at the top of the Metro station escalators. Reckless e-scooter riders whizzed past, contributing to a “sense of chaos” that took over, he said.

But there’s little police can do about loitering unless they’re catching a drug dealer red-handed, and by the mid-2010s, D.C. moved away from plainclothes street officers going after small-time dealers on the corner <a href="https://www.washingtonpost.com/local/crime/lanier-eliminates-many-plainclothes-drug-units-to-focus-on-top-dealers/2015/06/12/633706fe-10ff-11e5-a0dc-2b6f404ff5cf_story.html" target=_blank>to focus more on big-time drug operations.</a>

In a statement, Paris Lewbel, a police spokesman, said drug-related investigations “are difficult cases to make, and too often don’t provide immediate or lasting relief to our communities because only a few people are arrested and may be quickly back on the street.”

Bringing back drug-free zones, he said, would “help disperse and interrupt this activity and help neighborhoods and businesses reclaim and clean up public space.”

In its many variations, the anti-loitering approach has a long history of trial and error. Go back far enough and, even in the middle of a world war, President Franklin D. Roosevelt took the time to veto a 1941 D.C. “vagrancy” statute — a Jim Crow-era specialty often targeting Black people and poor people — over fears police couldn’t be trusted not to misuse it. A more tailored D.C. “narcotics vagrancy” law was struck down in federal court in 1968. And year after year,<a href="https://www.washingtonpost.com/archive/local/1981/09/16/antiloitering-bill-backed-to-combat-drugs-prostitution/76e4b614-8c76-46d7-81fc-9fb8b0eeafbe/" target="_blank"> especially in the 1980s</a> as drug-related crime became a more urgent problem, the D.C. Council kept trying to bring it back.

D.C. Housing Authority Police Chief Joel Maupin remembers when Barry and the council enacted a<a href="https://www.washingtonpost.com/archive/local/1989/04/05/citys-newest-tactic-against-drug-markets-anti-loitering-bill/88af6433-e944-4c41-92e7-93297cc856bb/" target="_blank"> new anti-loitering law targeting “illegal drug zones” </a>in 1989. Then a street officer for D.C. police patrolling Southeast’s 7th district, Maupin made one of the first arrests under the law.

“That was during the time when PCP was frequent in the streets, and crack cocaine was very prevalent,” Maupin said. “So drug-free zones, during that time frame, it was very much needed. … There was a lot of violence associated with crack cocaine. Now violence is most associated with anything or everything, it appears.”

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According to a<a href="https://cjcc.dc.gov/sites/default/files/dc/sites/cjcc/release_content/attachments/DC%20Gun%20Violence%20Problem%20Analysis%20Summary%20Report.pdf" target=_blank> December 2021 report</a> that studied the underlying causes of homicides in D.C., about 15 percent of the 274 killings where circumstances were known were tied to drug disputes or drug robberies — a different picture from the <a href="https://www.washingtonpost.com/archive/politics/1991/01/02/washington-areas-703-homicides-in-1990-set-a-record/ee71dd1f-59c8-4f03-af62-05b0a6134365/" target=_blank>60 percent tied to drugs in 1988</a>, and 41 percent in 1990.

Still, even then, Maupin said he did not recall the law being frequently used, in part because “it didn’t last very long,” he said. Days before Barry’s <a href="https://www.washingtonpost.com/wp-srv/local/longterm/tours/scandal/barry.htm" target=_blank>own arrest</a> on crack cocaine possession charges, in January 1990, a D.C. judge struck down the “Illegal Drug Zone” emergency act as unconstitutional. The problem, the court found, was that even though the intent was to squash suspected drug users or dealers, the law was so broad that it could apply to innocent people doing anything — even merely existing — in the targeted zone.

The council apparently learned from that case, and sought to draft a narrower law in 1996 — the version Bowser is seeking to revive in nearly identical fashion. Its champion, former council member Bill Lightfoot (I-At Large), says his legislation was also spurred by concerns from the community, like citizen patrol groups who had expressed unease about the proliferation of prostitution and open-air drug markets.

“Public safety has to be the priority. The rights of criminals have some bearing, but the role of government is to protect citizens,” said Lightfoot, who remains a close adviser to Bowser. “We were dealing with a crack cocaine epidemic, we had been named the murder capital ... and [the council] took an attitude toward violent crime that it was not going to be tolerated.”

Under both the 1996 law and Bowser’s proposal, police would issue notices to residents in and around an established zone, stating that for up to five days, it would be unlawful to congregate “for the purposes of participating in the use, purchase, or sale of illegal drugs.” Police could only arrest people they “reasonably believe” are involved in drug activity if they ignore orders to disperse.

But in 2014, as the council debated whether to repeal the measure, the attorney general’s office cited due process concerns with the law. Andrew Fois, then the deputy attorney general, wrote in a letter that the law failed to sufficiently consider a person’s intent to engage in illegal activity among the elements of the crime. On Oct. 27, D.C. Attorney General Brian L. Schwalb (D) said on the Politics Hour with Kojo Nnamdi that he was reviewing those due process concerns now. A day after this article published, a spokesman for the attorney general’s office said the office completed its review and pointed to a memo stating Bowser’s legislation was “legally sufficient”; the reasoning was not given in the memo.

Arthur Spitzer, senior legal counsel at the ACLU, said that in his view, the primary concern is about how police would make arrests. “Reasonable belief” that someone is engaged in drug activity is up for interpretation, he said, even if Bowser’s bill lists various criteria like “operating as a lookout” or exchanging “small packages.” It could allow police to make arrests under a lower standard than probable cause, which Spitzer said raises a red flag and spells legal trouble.

But, legal concerns aside, Spitzer questioned whether the approach will really make the impact leaders are hoping for.

“Designating a zone is just going to drive the market a couple streets over, and what good does that do, really?” he said. “It makes the people on this block happier for a while, but makes people on the next block suffer the same problems.”

While officials won’t say exactly where the open-air drug markets are today, recently, the U.S. attorney’s office <a href="https://www.justice.gov/usao-dc/pr/two-dc-area-men-plead-guilty-drug-charges-connected-open-air-drug-market-se-dc" target=_blank>secured guilty pleas</a> from six men tied to one operating around a Shell gas station on South Capitol Street SE.

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While naming drugs of concern, Smith said that <a href="https://www.washingtonpost.com/dc-md-va/2023/10/26/opioids-dc-public-emergency-fentanyl/" target=_blank>opioids</a> and fentanyl topped the list. And while the use and possession of marijuana is legal in the District — though not to smoke in public or to buy or sell — Bowser said that the city’s inability to tax and regulate the drug has also contributed to violence, a problem prosecutors described as happening at the gas station.

Bowser and Lindsey Appiah, deputy mayor of public safety and justice, have brushed aside legal concerns, noting that the former law never was actually challenged in the 18 years it was on the books. A similar anti-loitering drug-free zone law was <a href="https://www.baltimoresun.com/news/bs-xpm-2001-03-31-0103310441-story.html" target=_blank>struck down by a federal judge in Annapolis </a>in 2001 — but Bowser said this week that this did not concern her, and Appiah said she was not familiar with the case.

Appiah cited a <a href="https://www.sentencingproject.org/app/uploads/2022/08/Drug-Free-Zone-Laws.pdf" target=_blank>policy briefing from the Sentencing Project</a> as part of the research she reviewed that led her to believe the District’s policy is sound. The brief was about school-related drug-free zones, however — and according to the Sentencing Project, it has nothing to do with Bowser’s proposal.

“Not even relevant,” acting director Kara Gotsch said.

Gotsch said it was puzzling to hear Appiah cite her organization, which does not endorse Bowser’s proposal and <a href="https://www.sentencingproject.org/advocacy-letter/letter-to-district-of-columbia-mayor-regarding-the-addressing-crime-trends-now-act/" target="_blank">which asked the Bowser administration </a>to not cite them again. (Appiah insisted the briefing was relevant when asked about Gotsch’s objection.) It was more puzzling, Gotsch said, to see the Bowser administration seeking to revive the law so many years after it was repealed.

“Arresting more people for loitering because they might be involved in drug use or possess drugs is not how we solve our drug problem,” Gotsch said, noting concerns about racially disproportionate enforcement as well.

While it’s not yet clear where drug-free zones would be set up if Bowser’s proposal were to pass, some lawmakers have started to poke around. Council member Zachary Parker (D-Ward 5) asked Maupin at a D.C. Housing Authority hearing whether public housing complexes might be targeted, as they were back when the law first came into use in ’89. Maupin said there had not yet been discussions.

“Unfortunately,” Parker said, “we’re coming full circle having to think about implementing that again.”

Emily Davies contributed to this report.

Drake University, BAJMC in magazine journalism; BA in writing

Meagan Flynn covers D.C. government and politics on The Post's Metro team.

Meagan Flynn

University of Maryland, College Park, BA in journalism

Michael Brice-Saddler covers D.C. government and politics for The Washington Post's Metro desk. He joined The Post in June 2018 as a crime reporting intern after graduating from the University of Maryland. Before moving to local politics, he covered national and breaking news on the general assignment desk. 

Michael Brice-Saddler

Mayor Muriel Bowser resurrects D.C. policy to target open-air drug markets

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