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.