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Thursday, June 7, 2007

Politics Why The Sit-Lie Law Is Not Only A Terrible Idea, But Wholly Un-American

Posted by Scott Moore on Thu, Jun 7 at 12:45 PM

Yesterday afternoon, Matt Davis and I had an enlightening, if contentious, conversation with a city hall staffer about the Sit-Lie Ordinance and the progress of the SAFE Committee’s recommendations.

There are, of course, a number of technical bits to debate—like how far along the day access center, benches, and public restrooms need to be before the ordinance should go into place—but I realized for the first time the depth of the ideological disconnect between people who are on either side of the issue. In fact, much of the response from proponents has been some version of “What’s the big deal? We’re just keeping the sidewalks clear,” and then people like me throw out terms like “constitutional” and “civil liberties,” assuming that everyone has connected the dots of the argument.

CivilLiberties.jpg

It’s obvious I haven’t fully explained why the Sit-Lie Ordinance is antithetical to our collective notions of civil liberties, as theoretically protected by the Bill of Rights. So, sit back, because I’m going to let the latent public defender in me come swinging out to lay it all out for you—but I’ll be kind and do it after the jump.

Let's put aside the questions of whether homeless people are annoying, or smelly, or get in the way, or make us feel bad about our relative prosperity, or whether they should just get jobs and live like the rest of us, or whether they dissuade suburban soccer moms from shopping at Nordstrom's. Some or all of those may be true, but they have nothing to do with the core question--does this city have the right to attempt to ban them from the public sphere?

First, we have to presume that the Sit-Lie Ordinance only applies to people who aren't engaging in any criminal behavior, since the city already has adequate laws to hold or move along anyone who's breaking the law, being aggressive, or otherwise acting illegally. Sit-Lie is only for people who aren't breaking the law (other than this new law, that you can't sit or lie on the sidewalk), but whom the city (or Portland Business Alliance) wants out of a public space, the sidewalk.

Second, moving someone from a public space, which I presume--although I hesitate to make such a leap--that society has collectively decided should be open to everyone on an equal basis, in a very real way removes a person's right to be in that public space. This means that the city has passed a law that takes away someone's right to be in a public space, but without there being a criminal allegation accompanying the removal of rights.

If that sounds like a perfectly acceptable situation to you, I urge you in the strongest terms I can muster to take a little gander at the Bill of Rights, especially if you haven't since high school civics class. (It's becoming apparent that a whole host of city hall policy advisers in charge of public safety certainly haven't read the Bill of Rights in a while, let alone studied constitutional law.)

Even a cursory read of the first ten amendments to the U.S. Constitution show that the framers meant to build barriers to governments taking rights from citizens, and that in the cases where it is justified, the presumption is on the government to prove its case. In other words, the bar for removing someone's civil liberties (as in the case of imprisonment or confiscation of property) is explicitly high.

But here's a breakdown of the penumbra of protections that make the Sit-Lie law not only utter bullshit, but, in my mind, blatantly unconstitutional.

Amendment 1: Congress shall make no law... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment 4: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment 5: No person shall be... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment 8: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment 9: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Do any of these specifically address the Sit-Lie situation? Of course not. But taken together, they establish the principle that if the government is going to take away a person's rights (in this case, the right to occupy a public space), they'd better have a damn good reason for it. City council and the SAFE Committee have argued that the reason is because people sitting or lying on the sidewalk block the public space from other people using it, and I suppose that would be an acceptable argument--if there was any evidence to support it. Except in isolated places and times, the sidewalks downtown and in the Lloyd shopping district have not become impassible because of homeless people. If there's quantifiable evidence of this, as opposed to merely anecdotal, I'd love to see it.

More realistically, the reason for the Sit-Lie law (and for the Portland Business Alliance's insistence upon it) is to clear the streets of the homeless, making downtown more appealing for shoppers and adding to businesses' bottom lines. I'd love to see the City of Portland defend that reasoning in the courts.

(Somewhat tangentially, there's the argument that the sidewalks are exclusively for walking, and that sitting or lying on them isn't a protected use of the public space. This is the point the city hall staffer I mentioned at the top of the post was making--but do we seriously want to make that position a matter of public policy? If so, we need to immediately clear the sidewalks of seats and tables attached to bars, cafes, and restaurants, as well as any and all signs and sandwich boards that businesses put out. And while we're at it, I guess that means we have to ban standing still on the sidewalk, since that isn't technically walking either.)

I've also argued that shoppers and sidewalk pedestrians don't have a right to not be annoyed or inconvenienced by someone else's use of the public space. Just because you had to walk over or around someone lying on the sidewalk once doesn't justify banning it entirely. It merely means you need to get over yourself in a hurry. It's been argued back to me that people sitting or lying on the sidewalks don't have a right to not be "annoyed or inconvenienced" by the police making them move, but that's a total non-sequitor. Since the police are the arm of the government, it's not simply an annoyance--it's government action forcing you out of a public space. And that, to me, violates the whole spirit of the Bill of Rights, as in "Congress shall make no law..."

Of course, the city can and will get around the constitutional concerns in any number of ways, and policy makers have long sought ways to write public safety laws that do just that--like the Drug Free Zones. The question, though, is not "can city council get around the constitution?" but "should they even try?" If the constitution is merely viewed as an annoying obstacle to stricter laws, rather than a guiding document whose principles should be respected, then we've already lost what makes this city great.

Comments

I suggest a petition mandating that the Sit/Lie ordnance be overturned, or at least brought before constitutional review.

Remember this is something that city council did without a public vote.

How is it that we live in a country where government can pass laws restricting the freedoms and rights that have been guaranteed to all of us by the constitution and the bill of rights without first allowing us to vote on them?

Suppose this sort of thing is one of the fundamental flaws with the "republic" form of democracy.

Thanks for this, Scott. More times than I can count I've been tongue tied trying to explain to someone why the Sit/Lie ordinance is so unbelievably unconstitutional. Now I can just direct them here.

I'm happy to oblige. Sometimes I forget that the arguments that seem so obvious in my head aren't, in fact, obvious.

And, Dex, the idea of putting this to a public vote sketches me out more than city council doing it. Americans don't have a great track record of voting to uphold civil liberties. But there could very well be legal challenges, which would force a constitutional review. That would be fun to cover.

Thanks for writing this! This is just one more
reason ((as if we really need anymore)) to kick
Tom's old ass to the curb in our collective quest
to rid ourselves of this stupid Old Man
and his "vision". Enough of Tom Potter and his
"act" of ineptness and incompetency. Let's be
damned 'n' done with him one time for all time,
and make it clear that we don't want him as our
so-called "mayor" anymore by telling him NOT to
run again. Forget it dude...go to retirement
home ASAP and let Randy take over while you're
playing shuffleboard all day! Let them that
know what's happening and "get it" do what you
can't...be a mayor for ALL the people of Portland.

It's refreshing to see the ideological divide succinctly explained. Every time I get into political arguments it always comes down to exactly this. I've found it nearly impossible to explain why I'm in favor or opposed to something without breaking it down to this level. Does this make me a wonk?

Nah, Rico, I think it just makes you an engaged, informed citizen.

Thank you so much for taking the time to write and post this! Maybe when the Merc Team is clearing the tape off the sidewaks Friday night, they can have a few copies of this post handy to distribute around.

The thing about the constitution & bill of rights is it is what judges say it is. So I'd be interested to know what the state and federal courts have said about the freedom to assemble clause in the 1st amendment.

I disagree about having to read several amendments to come to a sound case against the sit/lie rule; it's right there in #1. Of course, the judicial intrepretation if the 1st amendment has never been as radical as the literal meaning of the text. (and why the judicial precedent concerns me)

Could someone also summarize how this new incarnation of sit/lie was supposed to pass constitutional muster while the other ones didn't?

Could someone also summarize how this new incarnation of sit/lie was supposed to pass constitutional muster while the other ones didn't?

Part of the problem with the pre-existing "obstructions as nuisances" law (or, a problem for the city) was that it WASN'T, in fact, a sit/lie law. But once upon a time, Vera issued a set of "enforcement guidelines" which let it be USED as a de facto sit/lie law.

The problem, at that point, for the public was: Who the Hell has ready access to some thick set of enforcement guidelines so that they can know how the law is beieng used? Pretty much nobody. And that was where the city got into trouble last time around.

So, partly the idea is to make an explicit sit/lie, so there's an actual LAW, not just "enforcement guidelines" that let the police use a law that ISN'T sit/lie AS a sit/lie. That's how they hope to stay out of legal trouble.

"Second, moving someone from a public space, which I presume--although I hesitate to make such a leap--that society has collectively decided should be open to everyone on an equal basis, in a very real way removes a person's right to be in that public space. This means that the city has passed a law that takes away someone's right to be in a public space, but without there being a criminal allegation accompanying the removal of rights." There is a very real difference between being on a sidewalk in its intended capacity as a sideWALK and lying on a sidewalk. This is not a law saying homeless people cannot be in a particular public space, It just says they can't sit/lie there. Just as I can't park my car in the middle of Burnside, I too shouldn't be allowed to lie down on the sidewalk.

You need a license to operate a car. You agree to the terms set out by the state to get that license.

Walking/sitting/lieing/speaking/writing/assembling/etc. are granted automatically as a citizen (supposedly) unconditionally.

At the risk of horn-tooting, some while back I took the time to reference both the federal and state precedents that make Portland's sit/lie so untenable.

With the warning that it is WONK LEVEL: RED, please go here for the discussion. Then please come back HERE and talk about it; don't do it there.

That's it. I'm going to sit on the sidewalk right now!

Actually, the Sit/Lie law does not "kick people out of public spaces." It simply regulates the usage of public spaces. Which is completely in the realm of governmental powers. Example - the government regulates the usage of the airways by not allowing cussing (& they even fine them).

Yes, and as with cars in traffic, broadcasters are required to obtain a license to use the public airwaves, and they agree to abide by the rules of the license. People can be fined or penalized because that is what they agreed to when getting the license.

This is a regulation of behavior in a space that's open to everyone. The question mark for me, then, is the justification for the regulation. If the government is going to impose a new restriction on behavior that isn't otherwise considered criminal, I believe it is incumbent on them to prove that there is an overriding state interest in doing so--if the reason is that homeless people block traffic and create safety hazards, I'd like to see the evidence of this specific problem that this "narrowly tailored" law is meant to fix.

Example - the government regulates the usage of the airways by not allowing cussing (& they even fine them).

Perhaps not for long.

Its not just about homeless people! how many homeless people are sitting on the street compared to street kids or people who are just hanging out. But I like your response though. This whole chain is first time I have actaully seen any amount of informed and legalistic explanation from you or anyone else on here. I think that sometimes its OK for reasonable people to disagree. (WHich is a constitutional standard by the way.) I welcome more REAL conversation like this around othjer topics. Maybe then unreasonable people (like the peolpe who come to downtown from Lake oswego who "are scared shocked by the scary downtown people" Will shutup and listen. And NOT to ranting and raving but a real and informed position.

Let me also add two things:

1. The city absolutely has an interest in keeping sidewalks clear for foot traffic. Any regulation that prevents unreasonable obstacles--by boxes, signs, other objects, and even bodies--to foot traffic is perfectly justifiable. But what if someone were sitting or lying near a wall, say, and not blocking traffic in the least? Say they're two and a half feet wide, lying parallel to the curb, but off to the side, leaving, what?, seven and a half feet to 10 and a half feet of clear space. They'd be in violation of the pending Sit-Lie law, but not because of the justification given for crafting the law--blocking pedestrian traffic.

2. Even if there was interest at council to dump the law, there's no easy way out. Through the SAFE Committee, the city has obligated itself to the law by taking money from the PBA. So council can renege and pay back the money PBA has given, and then somehow find money for the projects already moving forward (which a city the size of Portland should already have anyway...), or the city can keep the money and be seen as deadbeats. No real political winner there, especially considering how much money the PBA spends on campaigns and lobbying.

Oh, and thanks MJ for adding to the dialog.

"This whole chain is first time I have actaully seen any amount of informed and legalistic explanation from you or anyone else on here."

You haven't been paying attention!


From the December 2006 edition of Street Roots.

"The temptation for Street Roots and Portland to be outfoxed by the spin surrounding this ordinance is hard to resist. But in reality we should be talking about this in the context of two different proposals, the first being sidewalks and the second being direct services. By passing this ordinance we have leveraged 4,000 individuals' civil rights for the purpose of providing something a smart city would have already had in place: park benches, restrooms and a day center for poor people.

Street Roots is not arguing against a vibrant downtown. We believe a healthy city needs a bustling nightlife, density, and thriving small businesses. But it's troubling that the current city government has allowed curfews in parks that clearly target a certain group of individuals, and banned sitting and lying on a sidewalk — all in exchange for direct services.

Asking us to cheerlead for philosophies that are neither new nor innovative is asking us to continue to spin our wheels. In short, banning people from sitting or lying on a sidewalk is wrong and unconstitutional. It's that simple."

Read the entire editorial:

  • December 2006 SRs
  • This has been overshadowed by Tapegate, but I thought I'd make one more point clear:

    City council (through the SAFE committee) has identified a problem that it wants to address--traffic blockage on sidewalks. This is the explicitly given reason for the necessity of the law. But the law that has been passed isn't tailored to address that problem. A person can indeed be sitting or lying on the sidewalk and not blocking traffic in the least, yet they'd be in violation of the law.

    That the law and its enforcement don't even address the stated reason for the law should probably be of concern. It certainly leads one to believe that keeping traffic moving isn't the actual reason for the law to be in place.

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