To Judicial Referee Jon Ghastin, special prosecutor Travis Flynn, and the public defenders handling case upon case, it was clear that four defendants who hadn’t yet shown up weren’t going to walk through those double doors. So bench warrants were issued for their arrest.
The four absentee defendants are homeless. Each was arrested and booked multiple times by the Portland Police Bureau (PPB) in April, both for erecting a tent or some other structure on Chinatown sidewalks and for ignoring officers’ demands that they stop putting them up.
The two resulting misdemeanor charges—interfering with a peace officer (IPO) for not complying with an officer’s orders, and erecting a structure on public property—are common for homeless people, who often face them in tandem.
And despite a recent landmark Oregon Supreme Court ruling, local authorities say that’s not going to change anytime soon.
The court’s April 20 opinion, in the case of Oregon v. McNally, created an expanded defense to the charge of IPO. People can no longer be prosecuted for the crime of simply refusing an officer’s lawful order, so long as that refusal doesn’t involve “active” conduct like violence or running away. The ruling was lauded by defense attorneys and civil liberties advocates who say police have used IPO as a catch-all charge to jail people.
The state Supreme Court’s ruling could have a major effect on protest policing—IPO has been a common charge for demonstrators who refuse to move from the street. But the crime’s also used to bump up penalties against the homeless.
In 2014, the Mercury reported on a short-lived collaboration between police and prosecutors targeting people for nuisance crimes like drinking or urinating in public and using IPO to put them in jail. We’ve also reported on cops using IPO to ramp up penalties for erecting a tent.
Advocates expected that to change. Last month’s ruling should have “a significant impact to the houseless community and people who are going about their lives in the over-policed communities of color in Portland,” ACLU of Oregon Legal Director Mat dos Santos told the Mercury shortly after the ruling.
But, locally, the impact to the houseless community might not be as great or as immediate as some hoped. Prosecutors don’t believe homeless people ignoring an officer’s order to stop putting up structures on sidewalks amounts to passive resistance.
Since the Supreme Court’s ruling, Multnomah County prosecutors have filed at least 20 cases involving IPO and erecting a structure against 10 homeless people, according to a Mercury analysis of court filings.
About half of those cases stem from people keeping their belongings at the intersection of Northwest Flanders and 3rd in Chinatown. The others have all been within a few blocks of the intersection. All of them stem from PPB encounters in the days and weeks before the court broadened the passive resistance exemption, but Multnomah County Senior Deputy District Attorney Jim Hayden, who handles cases like these originating in and around downtown Portland, is moving forward with prosecutions.
- Doug Brown
“Typically, the order is not to erect structures in the future, and (police officers) come upon them and they’ve erected a new structure,” Hayden explains.
Asked why that doesn’t equate to passive resistance, he says, “They’ve clearly done something.... If they’ve been ordered to not erect a structure and they’ve subsequently erected a structure, then McNally would not apply. That would be an action: erecting a structure again.”
It’s unclear if defendants in the cases the Mercury examined rebuilt structures after being told they had to move by police, or simply kept them up. Hayden didn’t know the specifics of each case.
Still, four people with multiple cases filed against them since the McNally ruling are accused of flouting the law at the exact same intersection. One man was booked for IPO and erecting a structure four times on Northwest Flanders and 3rd between April 4 and 13. At the same intersection, one woman was cited for the charges on April 1, 4, and 10. Another woman was cited there on April 4 and 13, and a block away on April 10. One man was cited twice for the charges at Flanders and 4th, on April 9 and 13.
“That’s horrible, that’s not at all what [the Oregon Supreme Court] meant,” says local public defender Chris O’Connor, a longtime critic of the IPO law, about Hayden’s read of the McNally ruling. “If they just move their stuff and put up a tarp between shopping carts somewhere else—that’s what he’s saying is a failure to obey a lawful order?”
O’Connor says “it’s a political issue, not legal issue,” meant to appease business owners. “They’re charging the weakest [people], they’re using a dubious interpretation of the law, and they’re not applying it to everybody.”
Using Hayden’s explanation that homeless people arrested for IPO were given a blanket order not to keep their “structures” on sidewalks in the future, O’Connor asks facetiously why the police don’t also slap an IPO charge on every driver who was caught speeding, after seeing a speed limit sign.
“This is clearly being selectively used against the homeless and mentally ill,” he says.
Hayden, for his part, says the aggressive prosecution in Chinatown is needed because, “The city has decided, and I believe the people in this community have decided, that sidewalks should be clear.”
He blames the seemingly never-ending cycle of criminalized homelessness—repeated IPO and structure erection charges oftentimes followed by missed court dates, arrest warrants, jail bookings, and more missed court dates—on the people refusing to accept help. He says defendants should take advantage of the brand-new Law Enforcement Assisted Diversion program (LEAD), meant to divert those arrested to social services. LEAD is designed to address low-level drug crimes—not camping.
“I think they’re being approached very humanely and compassionately but at the same time they’re being told they can’t live on the sidewalk,” Hayden says. “That’s what they’re choosing to do... I don’t want to issue these cases, I don’t take joy in issuing these cases, but it’s a tool we’ve decided to use to try to solve a difficult livability problem in Portland.”