Multnomah County Circuit Court Judge Stephen Bushong unexpectedly annihilated the city's sit/lie law at a special session this afternoon, after the city asked him to "clarify" his late June ruling that the law is unconstitutional.
City Commissioner Nick Fish was there to watch the verdict, along with representatives from the Portland Business Alliance—which has pushed for the sit/lie law all along—and plenty of interested local media. Fish, himself a former civil rights attorney, spent a few moments afterward, chatting not with the city attorney's staff, but with the defense attorney in the case, Clayton Lance:
Hit the jump.
This afternoon's "request for clarification" by the city was an attempt to get Judge Bushong to say which parts of the ordinance he thought were constitutional, and which parts weren't, so that the city could effectively go back, strike out the offensive paragraphs, and reinstate the ordinance.
Bushong smacked down the city's request this afternoon, saying it's his role only to rule on specific cases, and not to help the city re-write its laws. And in what the defense attorney in the case described afterward as the "spirit of Socratic debate," the judge also took the opportunity to considerably broaden this afternoon's discussion about the law's unconstitutionality, with some harsh words for the city.
Bushong effectively told the city that he thought the law might, in theory, be unconstitutional on several other grounds, in addition to the one he ruled on in late June—which is that the law prohibits conduct allowed under state law, and which is already regulated by the state's disorderly conduct statute.
BUSHONG: ASKED POINTED "THEORETICAL" QUESTIONS ON OTHER AREAS OF CONSTITUTIONAL CONCERN
City Attorney Ellen Osoinach argued repeatedly that if the sit/lie law is unconstitutional, what right does the city have to regulate the placement of newspaper boxes, letter boxes and sidewalk cafes on the sidewalk? She argued that the city has the right to "fairly apportion the use of the sidewalk amongst multiple uses, and in order to do that you have to have rules." "If you do allow unregulated use of the sidewalks, you will inevitably have obstructions and disorderly conduct," she continued. "The city is left in this regulatory vacuum."
Osoinach hardly mentioned homelessness in her testimony before the court. At times, her delivery seemed stilted and over-rehearsed. As the judge asked more questions, she at one point raised her right palm to her forehead in a thinly-veiled gesture of frustration.
Bushong countered, saying Osoinach's position "raises the question of the limits of the city's authority, and whether or not the conduct you are prohibiting is in any respect constitutionally protected or not."
In other words: Newspaper boxes and sidewalk cafes are one thing, but people are another. Bushong suggested that cases against Portland's outlawed anti-loitering law from 1968 and 1970 might both be relevant in answering the question of constitutionality, not to mention a US Supreme Court case out of Chicago from 2002, in which the City of Chicago attempted to outlaw "gang congregation" with an ordinance that was later struck down as unconstitutional. In that case, the Supreme Court stated that "the freedom to loiter for innocent purposes is part of the liberty identified by the 14th amendment."
"That's a pretty broad liberty interest," said Bushong.
Osoinach argued that people were free to loiter under the sit/lie ordinance, as long as they were standing up, but Bushong didn't seem particularly impressed by that argument. He 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."
The only elected policy maker in the room, City Commissioner Nick Fish, had no comment afterward on the judge's ruling.
"The city will never, ever get this type of ordinance to pass constitutional muster," said defense attorney Lance. "This just isn't going to make it."
"The reality is that this is about money, business, about tourism," Lance continued. "It's about preserving the business interests of the city—however they shall not ever be able to do that on the backs of the constitutional and liberty rights of normal citizens."
"The city continues to argue that they're left with no alternatives or no options," Lance said. "Well, the reality is very simple."
Lance said cops could arrest people for assault in the fourth degree if they grabbed someone's leg while they were walking on the sidewalk, or for harassment if they touched someone while begging. "There's offensive littering, too," said Lance, "and the city's own argument doesn't bear up with what they have been doing."
Portland police have stopped enforcing the controversial ordinance ever since Bushong ruled it unconstitutional two months ago, prompting the city's police officers to complain about having to arrest people for actual crimes like harassment, assault, and offensive littering, instead of using the sit/lie law as a catch-all tool.
"We would rather be proactive," says Central Precinct Commander Mike Reese. "And the sit/lie law was a good low-level enforcement tool to allow us to do that."
Instead, the police bureau started running enforcement missions targeted at street kids in Pioneer Square two weeks ago. Reese says the police bureau is averaging two to three arrests a day out of the new initiative—but it's too "resource intensive to be sustainable," he says. Lance referred the court this afternoon to those well-publicized enforcement missions, and specifically, to an Oregonian story all about them, published last week.
In an appropriate response to Reese's concerns about the expense of enforcing higher level criminal laws against people in Pioneer Square, Lance said: "Justice is very expensive, it's time consuming, it takes lots of energy. But the constitution is worth protecting. It's not something, as a free society, that we take for granted."