Michigan’s Next Criminal Intent Challenge

On the scale of human transgressions, littering probably doesn’t rise much above a white lie. Yes, it creates an eyesore but it seldom actually does any harm, and as such, many communities regard it as a simple civil infraction. But in Michigan, cities and townships can set their own criminal statutes and the result can be a hodgepodge of offenses and punishments. For example, if you miss the trash can in Ann Arbor, you could be guilty of a crime.

It could be as unintentional as a plastic bag being blown out of your hand by a strong wind, but littering on public or private property in Ann Arbor is a misdemeanor in most cases, punishable by as much as a fine of $500 plus costs of prosecution, 90 days in jail, or both.

Ann Arbor police charged 25 people for misdemeanor littering in 2015, many of them college students dropping disposable plastic cups during football games. But one case involved a 50-year-old woman and another a 21-year-old man who smashed a pumpkin in the street, thinking it was harmless, biodegradable matter.

Acting Police Chief James Baird said, while he doesn’t have the numbers to prove it, he believes officers issue far more warnings than criminal charges.

“Twenty-five incidents in an entire year tells me that it’s usually handled with a warning,” said Baird.

To be fair, many cities have public nuisance ordinances that ban property owners from turning their yards into trash heaps. But based on the last two years of police reports, that does not seem to be the driving force behind law enforcement action in Ann Arbor. Most tickets are issued to college students at football games.

A typical case involves a young adult carrying a bottle or red Solo Cup filled with an alcoholic beverage, spotting a police officer and then placing or throwing the item into a bush. The officer questions the individual and if they deny drinking, issues a charge for littering. Drinking under the age of 21 is a misdemeanor under Michigan law and carrying an open container with alcohol is a misdemeanor under a city ordinance.

A number of students at the University of Michigan’s Ann Arbor campus are from out of town and may be unaware that littering is not a civil infraction, but actually a crime. Unlike civil infractions, misdemeanors are part of a criminal record that can jeopardize a job prospect, a graduate school admission or a loan application. Littering defendants can spend several thousand dollars trying to resolve their cases.

Additionally, littering is not uncommon: Witness any large public event and the teams required for cleanup. Police can’t charge everyone who drops a piece of trash so they must be selective. Take the case of a 50-year-old woman, who had an encounter with an Ann Arbor police officer in July 2014. According to the police report, an officer in a patrol car spotted the woman picking up a paper cup from a park seat and throwing it into a flower planter. The officer said he was familiar with the woman and yelled out, “Girl, go pick that up, you know better.” The woman replied, “I am a grown woman, don’t call me a girl.” In the report, the officer stated that the woman “displayed an attitude.” She was subsequently charged with littering.

Baird acknowledges that officers use discretion in deciding whether to warn or to charge.

“If you’re asking why there aren’t more citations written, I would guess that most of the time, the officers feel that the warning is sufficient to change behavior,” said Baird. He also points out that offenders are rarely brought into custody. Of the 25 cases in 2015, one offender, who was intoxicated, was brought to jail.

It appears that police are ramping up enforcement. There were 25 cases in 2015 but only three in the previous year. Michigan’s recent criminal intent reform, requiring laws to have language about the culpability required for conviction, will go a long way in curbing selective enforcement. Lawmakers might want to focus next on what can happen at the local level.