On August 1, 2002, Robert Brown was banned from all properties or programs operated by the Michigan City Department of Parks and Recreation. On August 13, 2002, he filed this suit against the City of Michigan City, Indiana (“City”); he alleged that the ban violated his rights to procedural and substantive due process guaranteed by the Fourteenth Amendment. On September 19, 2005, the United States District Court for the Northern District of Indiana granted summary judgment in favor of the City. Mr. Brown now appeals. For the reasons set forth in this opinion, we affirm the judgment of the district court.
I
INTRODUCTION
A. Facts
Mr. Brown is a resident of Michigan City, Indiana. Washington Park (the “park”) is the largest public park in Michigan City, and is located on the shores of Lake Michigan. Residents, including Mr. Brown, may enter the park free of charge with a resident pass. According to Mr. Brown, sometime in 1988, he begаn visiting Washington Park on a daily basis with his wife; they would “sit and watch the sunsets and sunrises, drink coffee, smoke cigarettes.” Brown Dep., R.49, Tab 3 at 20. After his wife passed away later that year, he continued this routine: Over the course of approximately fourteen years, in the morning, he would drive his R.V. to Washington Park, park near the lake, drink his coffee, smoke cigarettes and watch people at the beach, sometimes with binoculars. 1 He did not leave his van on most occasions.
*723 On July 2, 2002, Darrell Garbacik, the Recreation Director for the Michigan City Department of Parks and Recreation, received a phone call from LaPorte Recreation Director Karl Swihart. Swihart told Garbacik that Mr. Brown previously had been observed at Stone Lake Beach in LaPorte, Indiana, sitting in his R.Y. and watching beach patrons through binoculars. 2 The LaPorte police were notified and, after an investigation, they discovered that, in 1995, Mr. Brown had been convicted of one count of child molestation. 3 Swi-hart faxed Garbacik the case report from this investigation. Garbacik subsequently notified the Michigan City Police Department (“MCPD”) and the park staff of Mr. Brown’s criminal history; he directed the park staff to be on notice of Mr. Brown’s whereabouts in the park and to report any unusual behavior.
A picture of Mr. Brown’s vehicle subsequently was circulated to parking attendants at the Washington Park gatehouse; they logged Mr. Brown entering and exiting the park daily, sometimes twice daily, from July 16 to July 29, 2002. In addition, staff at a day camp within the park observed Mr. Brown driving slowly by the camp, allegedly wаtching the children. At his deposition, Garbacik explained that the speed limit on the road in front of the day camp is only ten miles an hour, but nevertheless maintained that Mr. Brown’s conduct was unusual:
Q: [W]hat is the speed limit within the park?
A: I’d actually be guessing, but I’d have to believe it’s ten miles or less ....
Q: So what does it mean to say that Mr. Brown was cruising slowly ... ?
A: I think the distinction there and what was expressed to me is that most people keep their eyes on the road and stop at the stop sign. This particular individual was looking to his right observing activities going on there.
Garbacik Dep., R.49, Tab 1 at 22. The City acknowledges that, although Mr. Brown’s people-watching at the park was in and of itself a largely innocent activity, when combined with his criminal history, it raised a “red flag[ ]” for the park staff. Id. at 38.
Mr. Brown was approached by Officеr Webb of the MCPD while sitting in his R.V. at the park in late July 2002. Officer Webb inquired about Mr. Brown’s activities and whether he was bothering anyone; after a short conversation, he allowed Mr. Brown to remain in the park. Mr. Brown again was approached in the park the next day; after asking Mr. Brown what he was doing, Officer Mark Swistek of the MCPD *724 suggested that he leave the park. Mr. Brown complied. A few days later, Mr. Brown was again in Washington Park when he was approached by two officers, who inquired whether Mr. Brown was registered as a sex offender with the MCPD; he responded that he had registered with the Sheriffs Department in LaPorte County, but was not aware that he also needed to register with Michigan City officials. 4 According to Mr. Brown, the fourth and last time he was approached by the policе in the park, the officers were accompanied by a city attorney. The attorney took Mr. Brown’s park pass; the officers informed him that he was no longer allowed in the park; if he returned, Mr. Brown was warned, he would be arrested for trespassing. Mr. Brown complied with this order.
On July 31, 2002, an officer of the MCPD hand-delivered a letter to Mr. Brown. It read:
The banning of your presence from the Michigan City Park properties will be presented to the Michigan City Parks and Recreation Board, Thursday August 1st at 6:00 in the 1st floor of the Park Office.
Id, Ex.5. Mr. Brown affirms that he “knew why [he] was being banned,” Brown Dep., id, Tab 3 at 43, but alleges that he did not understand that he was “invite[d]” to the hearing, id at 7. Because the police previously had told him that he would be arrested if he entered the park again and bеcause the meeting was at the Park Office, inside Washington Park, he did not believe that he had permission to attend.
A friend of Mr. Brown’s, Randolph Sanders, called various city officials to find out more about this meeting; he spoke with the Park Superintendent, to whom he expressed the concern that Mr. Brown would be arrested if he attended the meeting. The Superintendent stated that Mr. Brown was allowed to attend the meeting; however, both the Superintendent and the city attorney refused Sanders’ request to put this assurance in writing.
The Michigan City Parks and Recreation Board met in regular session on August 1, 2002, at the Park Office in Washington Park. In attendance were the four Board members, a number of park staff, press and members of the public. Mr. Brown was not present. One of the items discussed at the meeting was Resolution 548, entitled, “A Resolution Prohibiting the' Use of Park Department Properties by an Individual Having a Child Molesting History.” Id, Tab 1, Ex.7. In pertinent part, the Resolution read:
WHEREAS, the Michigan City Parks and Recreation Board and the Michigan City Parks and Recreation Department are by law responsible for the safety of all persons using the Park Department facilities or participating in Park Department programs, and
WHEREAS, it was brought to the attention of this Board by the Department staff and the Michigan City Police Department that during the period of a recent summer day camp program for children conducted at Washington Park, an individual, namely, Robert E. Brown ..., who was recognized by members of the Michigan City Police force as a convicted child molester, was observed by the Police and the Departmеnt staff frequenting Washington Park in [a] recreational/camping vehicle, while having a set of binoculars and a camera in his possession, and
WHEREAS, this Board has determined that in order to discharge its *725 responsibilities of child protection and safety, it is necessary to designate all properties and programs under the jurisdiction of the Department to be OFF LIMITS to any person who has been convicted of child molesting under Indiana Code, IC 35-42-4-3, or convicted of any other sex crime in which the victim is a child under the age of 18 years, and to ban such person from all Michigan City Parks and Recreation Department properties indefinitely.
NOW THEREFORE, BE IT RESOLVED BY THE MICHIGAN CITY PARKS AND RECREATION BOARD AS FOLLOWS:
(1) That ROBERT E. BROWN ... is hereby BANNED from all properties or programs operated under the jurisdiction of the Michigan City Department оf Parks and Recreation and that in the event said individual is found upon any such property, he shall be considered a trespasser, and shall be removed forthwith, or be subject to arrest for failure to depart the premises.
(2) That all properties and programs operated under the jurisdiction of this Department are hereby declared OFF LIMITS to any person who has been convicted of child molesting under Indiana Code, IC 35-42-4-3, or convicted of any other sex crime in which the victim is a child under the age of 18 years, and in the event that such individual is identified and found upon any such property, he shall be considered a trespasser and shall be ordered to remove himself forthwith, or be subject to arrest for failure to depart the premises....
Id. at 1-2. Although the resolution applied to all pеrsons convicted of child molestation, the City admits that Mr. Brown was the only individual mentioned in the resolution or at the Board meeting as “being a sex offender in the parks.” Garbacik Dep., id., Ex.l at 32.
The resolution was presented to the Board by Park Department Attorney Patrick Donoghue. Donoghue informed the persons in attendance that Mr. Brown had been involved in a “series of incidents ... involving the safety and protection of children.” Minutes, id., Ex.6 at 2. He explained that Mr. Brown has a criminal record, had been seen using binoculars to watch a family at a LaPorte beach, and had been observed engaging in suspicious behavior in Washington Park, including visiting the park “everyday, sometimes twice a day,” watching people from “his vehicle with binoculars and a camera on one occasion,” and, on numerous occasions, “driving by very slowly” the children’s day camp. Id. at 3. He classified the Board’s obligation as “about as extreme as [it could] possibly be,” given the Board’s responsibility for the “care, custody and safety of [children who visit the park].” Id. Resolution 548 passed unanimously.
After this litigation was filed on August 13, 2002, the Board reconvened in a special session on August 29, 2002. At this meeting, which again was held in the Park Office and of which Mr. Brown received no notice, Donoghue recommended to the Board that they rescind Resolution 548 and instead pass Resolution 552, entitled, “A Resolution Prohibiting the Use of Park Department Properties by an Individual Having a Child Molesting History, Whose Observed Behavior Constitutes a Threat to the Safety of Children.” Id., Ex.9. The Resolution is similar in substance to Resolution 548; thе difference is that, instead of making Michigan City park properties “OFF LIMITS to any person who has been convicted of child molesting under Indiana Code, IC 35-42-4-3, or convicted of any other sex crime in which the victim *726 is a child under the age of 18 years,” id., Ex.7 at 1-2 (emphasis added), it makes those properties and park programs “OFF LIMITS to the said Mr. Robert E. Brown who has been convicted of child molesting under Indiana Code, IC 35-42-4-3, and whose observed behavior in Washington Park is deemed by this Board to constitute a threat to the safety of children,” id., Ex.9 at 1-2. Under the resolution, Mr. Brown is banned from “all Michigan City Parks and Recreation Department properties indefinitely.” Id. at 2. Donoghue explained the change to the Board members and other members of the public present at the meeting as prompted by the motion for class certification filed by Mr. Brown. Because the “immediate problem to be addressed is Mr. Brown,” and the issue of other persons convicted of child molestation is “more remote,” Donoghue urged the Board to “adopt [the new] resolution and rescind Resolution 548____[0]ur Resolution No. 548 must be ‘narrowly tailored’ and it is ‘narrowly tailored’ if it targets and eliminates no more tha[n] the exact source of evil it seeks to remedy.” Id., Ex.8 at 2. The Board voted unanimously to rescind Resolution 548 and to adopt Resolution 552.
B. District Court Proceedings
On August 13, 2002, Mr. Brown brought this action against the City of Michigan City in the District Court for the Northern District of Indiana; at the same time, he filed in the district court a motion for class certification. Mr. Brown alleged that he, and the other individuals banned from entering Michigan City parks by Resolution 548, had been deprived of a protected liberty or property interest without due process of law. Specifically, he claimed that notice of the August 1st Board meeting was not timely received; further, he claimed that he was deprived of an opportunity to be heard because he previously was told that, if he entered the park, as was necessary to attend the meeting, he would be arrested. Mr. Brown also alleged a violation of his and the class’ substantive due process rights, claiming that the right to enter public spaces like city parks is a “fundamental and basic right of plaintiff and the class” and that the decision to ban the class from city parks was “arbitrary and irrational.” R.l at 6. Mr. Brown sought on behalf of the class a declaratory judgment and a permanent injunction, allowing the class to lawfully enter Michigan City parks; he also sought compensatory damages and attorneys’ fees. 5
After Resolution 548 was rescinded and Resolution 552 passed, Mr. Brown amended the complaint, naming himself as the sole plaintiff; he subsequently also withdrew his motion for class certification.
On September 19, 2005,
6
the district court granted summary judgment in favor of the City. First, with regard to Mr. Brown’s procedural due process claim, it found that Mr. Brown did not have a protected property interest in being permitted to enter Michigan City’s parks. It rejected the claim that “his resident pass and his ability, like that of other members of the public, to enter and use the City’s parks amounted to an understanding or entitlement that created a property interest.” R.54 at 9 (intеrnal quotation marks omit
*727
ted). Further, because Mr. Brown still could enter other public places in Michigan City and because he still may visit other parks outside of Michigan City’s municipal boundaries, any infringement was de min-imis. The court also rejected Mr. Brown’s claim of a liberty interest, based on damage to his reputation. Although the “labeling of Mr. Brown as a threat to children may have resulted in damage to his reputation,”
id.
at 11, under the “stigma plus” test of
Paul v. Davis,
[T]he burden on his right to enter Michigan City’s parks ... doesn’t impede his ability to enter and use other public places in Michigan City or enter and enjoy public parks in other locales .... Mr. Brown hasn’t cited an Indiana law establishing a right to entеr Michigan City parks or cited to any case law supporting his claim of such an entitlement.
Id. at 13.
Even if he did have a protected property or liberty interest, the court continued, Mr. Brown received the process he was due. He received adequate notice. See id. at 15 (“Mr. Brown hasn’t set forth any circumstances to support a finding that 24-hours was insufficient.”). He was given an opportunity to be heard. Id. at 17 (holding that Mr. Brown’s belief that he would be arrested if he entered the park was unreasonable, given that “he learned through [Sanders’] calls that he could attend the meeting, albeit without the written guarantee he sought” (emphasis added)). And the hearing was fair: Although the Board did not conduct a full adversarial hearing, “an open discussion was held, and questions were acсepted and answered.” Id. at 18.
Lastly, the district court found that Mr. Brown had not been deprived of a “fundamental right to enter public spaces like city parks,” guaranteed by the Due Process Clause.
Id.
at 23. The “right to enter and use city parks” is not fundamental.
Id.
(citing
Doe v. City of Lafayette,
Mr. Brown timely appealed.
II
DISCUSSION
Mr. Brown contends on appeal that the district court erred in granting summary judgment to the City on his procedural due process claim. He submits that he was deprived of property when he was “stripped of the tangible symbol of his right to enter [Michigan City] parks, his park pass,” Appellant’s Br. at 18; he allegedly was denied a liberty interest when he was labeled by the City “а threat to the safety of children,” id. at 20 (internal quotation marks omitted). He further submits that he was not afforded adequate process by the City: he received no notice of the August 29, 2002 meeting; the notice received of the earlier August 1 meeting was constitutionally inadequate; the meetings involved “no fact-finding, testimony, or adjudication,” id. at 30; and the City’s decision to ban him from its parks “was not made pursuant to ascertainable standards,” id. at 23.
Mr. Brown also contends that the district court erred in dismissing his substantive due process claim. According to Mr. Brown, he has a fundamental right to “en *728 ter parks and wander and loiter there,” and, although the Government admittedly has a compelling interest in protecting children from the threat of molestation, he argues that the Government cannot prove that the ban is rationally related to that interest. Id. at 32.
We review the district court’s grant of summary judgment de novo.
See Somberger v. City of Knoxville,
A. Procedural Due Process
A procedural due process claim requires a two-fold analysis. First, we must determine whether the plaintiff was deprived of a protected interest, either liberty or property; second, we must determine what process is due.
See Pugel v. Bd. of Trs. of Univ. of Illinois,
three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S.
319, 335,
1. Property Interest
To claim a property interest protected by the Fourteenth Amendment, “a person ... must have more than a unilateral exрectation of [the claimed interest]. He must, instead, have a legitimate claim of entitlement to it.”
Bd. of Regents v. Roth,
In this case, we must decide whether the tradition of distributing free park passes to Michigan City residents created a legitimate expectation of the continued right to visit Washington Park. We sympathize with Mr. Brown’s situation: The City, by banning him from its parks, took from him a daily routine that seems to have brought him great joy and one of the few activities he shared with his wife before she died. As Mr. Brown explained in his depositiоn:
[Visiting Washington Park is] just something I’ve been doing since way back. I’ve been coming up to Michigan City when I was a teenager.... [T]he wife and I was going down there for awhile.
It’s just a place where I can go and relax and see people enjoying life, which *729 is something I haven’t done since my wife died.
Brown Dep., R.49, Tab 3 at 78-79.
We cannot conclude, however, that Michigan City’s practice of opening its parks to its residents free of charge created a constitutionally cognizable property interest, which was violated when Mr. Brown was banned from those parks. A property interest of constitutional magnitude exists only when the state’s discretion is “clearly limited” such that the plaintiff cannot be denied the interest “unless specific conditions are met.”
Colburn v. Trs. of Indiana Univ.,
These circumstances are similar to those presented in
Glatt v. Chicago Park District,
Because we do not believe that Mr. Brown can claim a property interest in accessing the parks of Michigan City, we need not determine whether he has a property interеst that could be termed de min-imis and whose deprivation would not warrant due process.
See Omosegbon v. Wells,
2. Liberty Interest in Reputation
Mr. Brown also contends that Michigan City’s actions implicate a constitutionally protected liberty interest. According to Mr. Brown, the City damaged his reputation by classifying him as a “present threat” to children; this, coupled with the alteration of his legal status, warrants procedural due process under the “stigma plus” framework of
Paul v. Davis,
Paul v. Davis
recognized that “mere defamation by the government does
not
deprive a person of liberty protected by the Fourteenth Amendment, even when it causes serious impairment of [one’s] future employment.”
Hojnacki v. Klein-Acosta, 285
F.3d 544, 548 (7th Cir.2002) (internal quotation marks omitted and alteration in original) (discussing
Paul v. Davis,
To be sure, the statеments made about Mr. Brown at the August 1st and August 29th Board meetings probably could be classified, if untrue, as defamatory because they had and may continue to have the potential to “injure his ... reputation” and are “capable of being proved false.”
Sadallah v. City of Utica,
We agree, however, with the district court that Mr. Brown cannot fulfill the “plus” factor of the
Paul v. Davis
test — the alteration of legal status. For a plaintiff to establish a protectable liberty interest, “any stigmatic harm must take concrete forms and extend beyond mere reputational interests.”
Omosegbon,
Mr. Brown cannot establish that the right to enter the parks of Michigan City is “a right or status previously recognized by state law.”
Paul,
Whether Mr. Brown was afforded adequate process in this case is a difficult question. Because we conclude thаt Mr. Brown was not deprived of a valid liberty or property interest, however, we have no occasion to address definitively what process was due and whether the process afforded was adequate under the circumstances.
B. Substantive Due Process
Mr. Brown also contends that the City violated his right to substantive due process when it banned him from entering its public parks. As the Supreme Court has noted,
the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed .... Our Nation’s history, legal traditions, and practices thus provide the crucial guideposts for responsible deci-sionmaking, that direct and restrain our exposition of the Due Process Clause. As we stated recently in [Reno v.] Flores [507 U.S. 292 , 113 S.Ct. 1439,123 L.Ed.2d 1 (1993) ], the Fourteenth Amendment forbids the government to infringe ... fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.
Washington v. Glucksberg,
reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. By extending constitutional protection to an asserted right or liberty interest, we, to a great extеnt, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field ....
Id.
at 720,
the rights to marry, to have children, to direct the education and upbringing of one’s children, to marital privacy, to use contraception, to bodily integrity, and to abortion[.] We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment.
Id. (internal citations omitted).
The right to enter a public park is not among this list. In fact, in
Doe v. City of Lafayette,
We classified Mr. Doe’s alleged “right to enter the parks to loiter or for other innocent purposes” as one that, although certainly important, is not “fundamental.” Id. at 769-70. “It certainly is an uncomfortable fit with the liberty interests that the Supreme Court, as noted in Glucksberg, has determined to be fundamental,” id. at 770, including the right to marry, to marital privacy and to use contraception:
When we compare Mr. Doe’s asserted liberty interest with those which have been held fundamental, we are bound to the conclusion that Mr. Doe’s asserted right to enter the parks to loiter is not on the same footing; it is not implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.... The historical and precedential support for a fundamental right to enter parks for enjoyment is, to put it mildly, oblique. Notably, Mr. Doe’s argument contains a dearth of historical sources. He cites no case, state or federal, that has held that the right to enter the park to loiter or for other enjoyment purposes is “fundamental,” as that term is understood in substantive due process doctrine.
Id. at 770-71 (internal citations and quotation marks omitted; first alteration in original). Because no fundamental right was at stake, we applied a rational basis standard of review. We found that the City’s interest in protecting children is “not merely legitimate, [but] compelling.” Id. at 773. We also found that the ban was rationally related to that end: Mr. Doe had been witnessed in the park looking at children; he was a convicted child molester; and it was possible that he was heading down a “slippery slope into abuse.” Id.
Mr. Brown does not challenge Doe’s conclusion that the right to enter a park is not fundamental. We therefore “must ask whether the ban is rationally related to a legitimate government interest, or alternatively phrased, whether the ban is arbitrary or irrational.” Id. at 773 (internal quotation marks omitted). Mr. Brown does not contest that the City’s interest in protecting children from potential child abusers is “legitimate.” Id. He does claim, however, that this ban is not rationally related to that end. Unlike in Doe, he urges, where the plaintiff was observed engaging in behavior “threatening [and] dangerous” to children, Mr. Brown’s behavior was largely benign: He merely sat alone in his R.V., observing patrons on the beach and in the park. Appellant’s Br. at 33.
We cannot accept this argument. Rational-basis review is “highly-deferential.”
Turner v. Glickman,
Mr. Brown responds that, because Michigan City has not chosen to ban
all
child molesters from its parks, only Mr. Brown, its actions are “fundamentally irrational.” Appellant’s Br. at 34. But the City’s means need not be “narrowly tailored” to its goals; rather, they need only be “reasonably related to [those] goal[s].”
City of Chicago v. Shalala,
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the district court.
Affirmed
Notes
. Mr. Brown claims that he watched only women on the beach, see Brown Dep., R.49, *723 Tab 3 at 51; the City claims that he also watched children, and that some of the "women” sunbathing on the beach in actuality were "teenage girls,” id.
. Specifically, in late June 2002, Mr. Brоwn was parked near the beach, directly across from a family sitting on the beach. Officer Paul Brettin of the LaPorte City Police Department was on the scene and, having noticed Mr. Brown in his car, inquired of the lifeguards about his presence. The lifeguards informed the officer that Mr. Brown often parked in this same spot and watched beach patrons. Officer Brettin then approached Mr. Brown's vehicle; Mr. Brown explained to the officer that he was at the beach to go swimming. Officer Brettin requested identification, which Mr. Brown willingly provided. The officer subsequently ran a criminal check on Mr. Brown and discovered his criminal history.
. For this crime, Mr. Brown was sentenced to six years' imprisonment; three years of his term of imprisonment were suspended, and he was rеleased from prison in January 1999. He was placed on probation for three years and completed a counseling program after his release.
. Subsequently, Mr. Brown promptly completed the necessary paperwork to register as a convicted sex offender with the Michigan City Police Department.
. The complaint also alleges a violation of the Ex Post Facto Clause of Article I, § 10, and the Fifth Amendment Double Jeopardy Clause. These claims have not been pursued on appeal.
. The case was stayed pending a decision in
Doe v. City of Lafayette,
. See, e.g., R.49, Tab 1, Ex.6 at 3 (accurately describing Mr. Brown’s activities at Washington Park, including visiting the park "everyday, sometimes twice a day,” and "sitting in his vehicle with binoculars”).
. In his reply brief, Mr. Brown also cites
Somerset House, Inc.
v.
Turnock,
. Mr. Brown also contrasts his case with that of Willie Faulkner, the only оther individual to have been banned from Michigan City parks. Faulkner was "observed with his hands in his pants,” watching a female high school volleyball team. Garbacik Dep., R.49, Tab 1 at 8. In August 2002, he was banned from entering Michigan City parks "for the remainder of the 2002 and for the entire 2003 calendar year.” Letter to Faulkner, R.49, Tab 1, Ex.2. Mr. Brown submits that it is irrational to impose an indefinite ban on his entry to the City's parks when Faulkner was banned, for comparatively more threatening conduct, for only two years. This comparison is persuasive, but ultimately unavailing. Although we agree that Faulkner’s conduct can be characterized as less benign than Mr. Brown's, there is no evidence that Faulkner formerly was convicted of child molestation. It is not unreasonable for the City to treat an individual who has demonstrated a propensity towards molesting children differently than an individual with no record, in the event that both are engaged in suspicious activity.