Victory for Portland homeless against "overbroad" ordinance
Israel BayerJuly 23, 2004
Members of the Portland Peace Encampment are taking a wait and see approach with the city following a circuit court ruling in their favor that declared the city's sit-lie law unconstitutional.
The group of peace activists who held a peace vigil in front of City Hall for more than six months last year triumphed in the court ruling handed down June 22.
"We'll be looking at what the city does in response," said Todd Kurylowicz, one of the defendants in the case. "As of now the ruling isn't legally binding, but because it's a 16-page ruling on the ordinance being unconstitutional, it's a persuasive document. If they rewrite the ordinance there will be a response."
The law had allowed for the enforcement of people blocking a pedestrian free zone on the sidewalk, but in August the city made new guideline changes without a public process that allowed for enforcement on the entire sidewalk and during expressive events lasting longer than eight hours within the central precinct downtown.
Critics suggested that this was a violation of free speech and that people's right to assemble would be violated. And that's exactly what Judge Litzenberger expressed in her ruling.
"First, the ordinance is overbroad in that it reaches conduct that the Oregon and United States constitutions declare can not be prohibited, the right to assembly peacefully," Litzenberger wrote. "The ordinance did not "have sufficient definiteness that an ordinary person can understand what conduct is prohibited and that it does not encourage arbitrary and discriminatory enforcement of the law."
"It's an appropriate ruling and it's what we were looking for -- the law to be taken off the books," said Kurylowicz. "It's a very harmful tool used to suppress First Amendment rights and to criminalize people experiencing homelessness."
"It's a good win, the only thing that is disappointing is that this wasn't resolved through a community process with the communities input," said Adam Arms, the attorney representing the three defendants.
"I believe it will have a legal impact, because it was a facial challenge," said Arms. "The judge did not even look at any of the facts in this case, she made her decision based upon the way the law was written."
Scott Ferris, spokesman for Mayor Vera Katz, said that the city attorney is looking at the court's decision and deciding whether they should appeal the decision or rewrite the ordinance and bring it before city council in the future. Ferris estimated that something would be done within the next several weeks.
"Obviously, there will be a public process for any ordinance brought before the council," Ferris said. "How broad the process will be or to what degree will probably be determined down the road."
This is the first victory for the fledgling civil rights watchdog, the Northwest Constitutional Rights Center.
"We're sending a message to the city that we're serious and we have the resources that it takes to monitor the actions of police and the city council," said Alan Graf, executive director of the Center. "Government has never provided the oversight needed to ensure people's right to dissent. We are stepping in to be that group. We are here to stay."
Graf also added that his group has a lot of problems with private security downtown. "I have concerns that they won't get word about the court decision, but we are going to be monitoring private security downtown, along with the police, to make sure people's civil rights aren't being violated.
Dozens of cities nationwide have ordinances similar to Portland's sit-lie law. In Los Angeles, a similar case is going to the 9th Circuit Courts.
"This decision has been distributed nationwide," said Graf. "Every lawyer's guild in the country has a copy of this decision."
"We hope that this sets a precedent," said Donald Whitehead, executive director with the National Coalition for the Homeless. "When there has been a ruling sent down in similar cases, it has helped in other parts of the country. We hope this ruling can do the same."
Secrecy
The sit-lie ordinance on its face has always concerned people experiencing homelessness and their advocates for its potential to shuffle people around the city. A year before the new guidelines went into effect, several rallies had been held by crossroads and later the Right to Sleep Alliance, denouncing any such move to shuffle people experiencing homelessness out of the downtown region with the sit-lie ordinance.
"The mayor took a law that was too vague to use, and instead of re-writing the law, which would have involved a more public process, the mayor issued new enforcement guidelines that narrowed the law and made it enforceable," said Jamie Manuel of crossroads, a homeless people's organization. "That's how we got a de facto "sit-lie" law.
She did it that way to avoid a public process, since there was strong public opposition to such a law."
About a week before the new guideline changes were made by the city, street roots was given an e-mail sent out by City Attorney David Woboril, stating that the new enforcement guidelines were going to be added to the ordinance.
Sources at City Hall had told street roots that the new guidelines were in direct response to the Portland Peace Encampment, although Tommy Brooks, the former spokesperson for Mayor Katz, repeatedly denied those allegations.
The new guidelines went into effect at midnight, Aug. 13. Eight hours later, the camp was swept by eight Portland police officers. Three people were arrested.
Peace camp members organized a protest in front of City Hall that was declared an event later on that day. Eight hours after the protest, more arrests occurred.
During the following three days, 11 people were arrested, including Kurylowicz, who was arrested three times.
"(City Commissioner) Randy Leonard came across the street in July, before the guideline changes, telling us that police involvement was going to escalate and we got in a pretty heated discussion about our rights," said Kurylowicz. "That evolved into meetings with the mayor and the city attorney. They told us they were in agreement to change the enforcement guidelines to put a time, place and matter of restrictions on events through the ordinance, and that's exactly what they did a few weeks later."
"Given the nature of the incident and how the city responded with changing the ordinance of the guidelines to arrest us - the whole process was quite juvenile," said Kurylowicz. "The mayor and the attorney should repay the court costs for the group. This was their legislation that led to all of this. People should be held accountable - it's public servants' jobs to uphold the Constitution and they should be held accountable all the way to the top. It was fiscally irresponsible."
How this effects people on the streets
Street roots has been told by dozens of people sleeping on the streets or panhandling that the Portland police and other private security agencies, including Clean and Safe and the Portland Patrol, use the sit-lie ordinance to move people out of key locations downtown. As reported last month in street roots ("Changin' Spangin'"), very rarely are actual tickets ever issued by the authorities. Many advocates believe the reason for not handing out tickets is because the authorities realize that the ordinance is unconstitutional.
"People should realize that this ruling does not remove the law from the books. It provides a strong precedent for anyone who wants to challenge a sit-lie ticket, and I wouldn't expect the police to hand out any sit-lie tickets at protests anytime soon," said Manuel.
Cheryl Robinson, spokeswoman for the Portland Police Bureau, said they were not enforcing the ordinance. "Once the judge made a decision we no longer enforce the law until the city attorney makes a decision," said Robinson.
Asked if the ruling hurt officers on the streets, Robinson said, "It's certainly a tool we've used that we no longer have."
"I'm sure they will find other ways to move us along," said Gary, a homeless veteran who spare changes downtown. "Sometimes we are just fine and then other times we seem to be a thorn in people's side. I just do my thing. I don't block the sidewalk when I'm panhandling and I'm not up in people's faces."
For people on the streets, many questions still remain. "People experiencing homelessness have often been legally marginalized, and many are likely to allow their case to be handled by community court where they can't challenge the ticket," said Manuel. "The police know this. They also know that if they tell people they are in violation of this law and tell them that they need to leave the area or they will be given a ticket, the person will probably leave the area. I think this type of passive enforcement is likely to be the policy the mayor hands down to the police. This is largely how they have handled the Gallagher ruling on the anti-camping ordinance."
The Gallagher ruling in 2000 declared the camping ban unconstitutional as it applied to people experiencing homelessness.
Critics in the business community say that there is no sidewalk law and that people can do anything they want on the sidewalk now, but according to Arms that's not the case, "There still a local law to prevent people from purposely blocking the sidewalk, City 14A05035 - titled 'Pedestrians'," said Arms.
When asked how this ruling will affect people experiencing homelessness, Arms said "I hope the police will stop relying on the law to roust folks. Before, the law allowed them to do almost anything they wanted to do with people on the sidewalk no matter what they were doing."
From the city's perspective, "It's harder to make an argument that the police can enforce this law, because the judge's decision on the law," Arms said.
"Wanted man in Kansas City," said George, a homeless man downtown. "Wanted man in Buffalo, wanted man in this next city, wanted man wherever I go. Isn't that what Johnny Cash sang? It doesn't matter what we do. "If we don't have roofs over our heads, we are wanted men."
Get a Print-Friendly Version of this Story