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.
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.
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