This Week in the Mercury
Thursday, February 19, 2009
Cops / City Hall / Courts / Crime / News / Politics / Portland Judge Rules Sit/Lie Law Unconstitutional
Posted by Matt Davis on Thu, Feb 19, 2009 at 11:38 AM
A downtown judge has ruled the city's controversial sidewalk obstruction ordinance unconstitutional.
Judge Michael McShane made the ruling yesterday about the part of the ordinance that requires people to keep their personal belongings within two feet.
"I found that an ordinary person would not understand from the statute that mundane and everyday behavior would be prohibited by the law," McShane tells the Mercury.
"The ordinance encourages arbitrary and discriminatory enforcement," says McShane,
McShane gave the Mercury two examples of mundane behavior that would in theory be illegal under the ordinance.
"A woman with a baby in a stroller who walks away from the stroller for a moment to get the baby strapped into the car would be breaking the law," says McShane. "Or a window washer who steps two feet away from his bucket while he is washing a storefront window."
McShane said Deputy District Attorney Brian Lowney was unable to convince him otherwise in court. Both Lowney, and defense attorney Maite Uranga are yet to return calls for comment.
The law, which has been controversial since its inception, is scheduled to sunset in April, with City Commissioners Amanda Fritz and Randy Leonard opposed to its renewal, and City Commissioner Nick Fish still firmly on the fence with the deciding vote.
McShane made the ruling in the case of state versus Steven Joseph Elias, yesterday. Elias, who is only 23 but looks a little older, has a reputation for looking just like Jack Sparrow in the movie Pirates Of The Caribbean, and is a renowned member of Portland's street community. Police cited Elias last fall for violating the sidewalk obstruction ordinance when he left his backpack outside Peterson's convenience store on SW Yamhill. During the citation, officers asked Elias to remove an asp from his belt, and saw a knife concealed behind it on his waistband. They charged him with carrying a concealed weapon, but Judge McShane ruled that the evidence should be suppressed in court yesterday, since he ruled that the original cite—against Elias' backpack, was unconstitutional.
Judge McShane's ruling runs contradictory to another ruling last September, when another downtown judge, Terry Hannon, ruled the law "constitutional" and "reasonable" in another case.
It's unlikely the state will appeal the ruling, since it's not uncommon for downtown judges to make different rulings on the same law. If the state appeals McShane's ruling, it would have to go before the court of appeals. If the appeals court rules the law unconstitutional, then cops would have to stop using it. In the meantime, the city can continue enforcing a law that has been found unconstitutional, regardless.
Calls to Police Commissioner Dan Saltzman's office were not immediately returned, but I expect we'll have some comments later.
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Why did Elias have a snake around his waist? That's the part that confuses me.
Good job Judge McShane! Good job Defense attorney Uranga! Unfortunately, the city will continue to prosecute people under the sit-lie ordinance until the Court of Appeals gets a hold of a case in which the ordinance is at issue.
Hopefully Elias will sue civilly for the time and energy he had to waste in court and the time he was imprisoned.
PS:
Asp= http://www.uws.com/ASPBATONS/HomePage.html
It would appear that each judge rendered an opinion on different fact situations. In the latter case, it isn't clear that the Judge determined the entire ordinance unconstitutional, on the contrary, it seems that he ruled only as to a part of the ordinance.
Thus, the rulings do not seem contradictory at all.
But, hopefully, it will give the council enough concern that the ordinance is, in fact, unconstitutional and therefore, will not renew it in its present form.
Thanks to sunset provisions. Maybe it ought to be the rule unless the legislators can prove otherwise?
What's a "downtown judge?" Is downtown a jurisdiction? And why would a pattern of contradictory rulings make an appeal unlikely? I would think such a pattern would encourage appeals, to clear up the contradictions. But I might be misunderstanding you.
this raises such mixed interpretations, that it cant be constitutional.. in this country, we have lots of laws.. unfortunately, a LOT of them are controversial, but there is always a majorital pull to them.. this shows that there is no majority thinking, that this IS a controversial and contradicting law that needs to be remedied...
portland needs to stop attacking the homeless populus (because that IS what this law is for, just like that IS why we have clean&safe all over downtown).. harassment is NOT legal.. yet that is exactly what these petty rules allow.. they allow the city of portland to openly discriminate against 'undesirable' people and strongarm them into a twisted submission..
i can understand why the homeless population here is so 'undesireable' its because the conventional regulars here harass them, treat them badly, but most importantly, they dont receive the help they NEED because people are too busy keeping them down..
its no wonder they have drug problems and steal from people and whatnot.. ITS BECAUSE OF HOW YOU TREAT THEM PORTLAND!! there are very few good people here that have hearts and understand what it means to need help, those people help the homeless, and theyre wonderful for it..
look at it for what it is portland.. if you need help, and you just keep on getting pushed down and kicked around, do you really think youre going to keep on being nice and honest?? if youre a female and you need tampons, but you have no money and everyone just tells you to 'go get a job you bum' are you really going to sit there happy and bleed all over yourself?? NO, youre going to get upset, youre going to be mad and embarassed because youre bleeding all over yourself, youre going to get frustrated.. and then youre going to give in and go STEAL tampons...
think about it with an open mind.. if you needed something and had no one and nothing to turn to, what would YOU do???
heres an idea that doesnt come from the butt of a dirty politician.. how about actually helping these people? theyre not ging to leave, no matter how badly you treat them.. they have nowhere to go, so here is just like anywhere else for their situation.. how about helping them with their situation instead of always trying to hurt them for it?? people here get records because of their living instability.. being homeless is NOT a crime (if you dont got a home, you dont got one, just like a car, either you got one or you dont).. so why should being homeless make you a criminal???
portland treats thier homeless BEYOND terrible... ive lived in many cities, and here is the worst i have ever seen.. this place lacks the concept of human decency... things need to change, and only you guys can change it.. because you guys are the ones making the problem.. dont believe me?? open your eyes.. look at this law right here.. watch the cops downtown.. it really IS strange how the only people that have had to deal with it are essentially 'homeless', isnt it???
hey isis006, i dont know what cities youve been in, but chicago, ALL of southern california, and most other cities i've lived in treat poor and homelessness as criminal activity. ontario ca, got an injunction against poor and homeless people, banning them from public buildings and all city parks. in chicago, being homeless is ONLY legal if you stay out of public veiw. in hawaii, homeless children were denied access to public education. portland may have certain assholes in government, but the services offered to the poor and homeless should be applauded!
I'm getting tired of the liberal mentality that I should, for whatever reason, feel guilty about my distaste for the homeless. They made the poor (no pun intended)decisions in life which led to their current state, and I'm supposed to bear the brunt of the guilt for their disposition? Give me a break.
If you all feel so bad for them, why don't you invite them to camp out, defecate, piss, vomit, drink, litter in your back yard?
The reason homelessness is so prevalent in Portland is because of the lax attitude and the overwhelming guilt/sympathy people feel for them as well as the overabundance of services provided. Why should they get jobs? They got my taxes and the "oh, it's not their fault" attitude to make it so they don't have to work. It's like feeding stray cats, pretty soon you are overwhelmed with ferals looking for handouts.
I'm tired of being accosted for money, tired of cleaning up the alley behind my house, tired of people trying to make me feel guilty about having work, having a home, working hard and earning my way.
I agree, homelessness should not be a crime - but at the same time, I shouldn't be made to feel like a criminal because I hate seeing a bunch of lazy bums asking me to give them money that I work hard for. If you are capable of sitting on a street corner asking for money - you can probably flip burgers and work an automated fryer. It's not much, but at least it's honest work.
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