This Week in the Mercury


Tuesday, August 18, 2009

Mayor Contemplating New Sit/Lie Law: Office Declines Bet That New Law Will Be Unconstitutional

Posted by Matt Davis on Tue, Aug 18, 2009 at 1:14 PM

Mayor Sam Adams is understood to be contemplating a replacement for the city's defunct sit/lie ordinance, to be placed on the council agenda as early as next week, according to police commissioner Dan Saltzman this afternoon.

The Mercury was talking to Saltzman for a story on the aggressive police missions in Pioneer Square recently, when Saltzman said the mayor is looking at a replacement for the sit/lie law. "Not in its present form, but there are some alternative avenues under exploration," says Saltzman. "And the mayor wants to move fairly quickly, in weeks, as opposed to months."

It was only last Friday that a judge struck down the city's sit/lie ordinance once again, suggesting a series of probable constitutional violations to outlawing blocking the sidewalk, in addition to the problems he already raised back in June. Judge Stephen Bushong said the city was free to appeal his ruling, or if it preferred, to instruct policy makers to "attempt to craft an ordinance that would be consistent with the rule of law."

Update, 1:38pm:

"We've been through a series of meetings this morning with both commissioner Saltzman and commissioner Fish, and Tom Bizeau [chief of staff] from Amanda's [Fritz's] office was also in the room as well," says Tom Miller, Adams' chief of staff. "I think it's fair to say that council is unanimous in its desire to want to provide citizens with something in addition to the status quo. There's a feeling that law enforcement needs another tool. We understand that sit/lie is not appropriate according to judges, but having nothing is not acceptable either."

"We're getting all of those entities together, so that we can try to arrive at a legal and practicable alternative to sit/lie," says Miller. "The sit/lie code provision is no longer a viable alternative. We're trying to find the sweet spot between trying to respect the first amendment and all those issues, and yet still ensuring that the public right of way still flows as effectively as it needs to so that people can go about their business without fear of harassment."

"We're trying to create a safe and functional right of way so that people's legal and practical rights are respected," says Miller, who is involving the city attorney's office, police, the bureau of transportation, the bureau of Development Services, and Trimet, in another go at the law.

"The public doesn't care that this is our fourth pass at trying to craft this law," said Miller, in response to a question asking how many times the city needs to craft the ordinance before it quits. "The public cares about getting this issue right."

"Where criminal behavior occurs, people will be charged with criminal charges, and we've been doing that fairly aggressively for the last few weeks. But again the threshold there is criminality," says Miller. "We don't want to put people in positions where we have no tool but criminality. So on the law enforcement side we have to wait until the undesirable behavior crosses that threshold and becomes unlawful."

"At the same time we are unnecessarily weighing some of these folks down with criminal records. On the law enforcement side we want to be as nimble and agile as we can be," Miller says.

So, can Miller guarantee that the new iteration won't be struck down as unconstitutional, just as the past iterations of the law have been, going back to the city's anti-loitering laws of 1968?

"We can: We met with the judge for clarity of his opinion last Friday and the judge told us that this is a very complex area of law, and as such, there are no guarantees that whatever tool we aim to provide, that it won't be ruled unconstitutional down the road," Miller said.

So it might well be ruled unconstitutional in a year, but in the mean time, the cops can go about harassing people with it, just the same?

"We have an obligation to the citizens of Portland but it also goes without saying that we need to adhere to the constitution," Miller says.

Miller declined a $10 bet that the ordinance would be ruled unconstitutional again in another 18 months.

"History is on your side, obviously," he said.

So he doesn't care if the law is found unconstitutional again, in the end?

"That statement implies a level of cynicism that the city does not share," said Miller.

"Didn't they read the quote on the Mercury's blog last week where the lawyer said they will never ever ever pass a constitutional version of this law?" asks Copwatch activist Dan Handelman, who is also, evidently, cynical on this front.

Update, 3:43pm: Join the Facebook group in opposition to the new law.

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