Although Multnomah County Circuit Court Judge Michael Marcus expressed sympathy to those kicked out of the city's Drug Free Zones, he ultimately upheld the city's policing tool. Under the rule, a police officer can boot a person from areas in Old Town and North Portland for 90 days based on the belief that he or she is using or selling drugs.

For years, the DFZ have been under attack by civil rights and defense attorneys. Most recently, the public defender leveled the charge that the DFZ are disproportionately unfair to African American men.

Two weeks ago, that claim was argued in front of Judge Marcus. Previously, Judge Marcus declared that the DFZ are unconstitutional because they hand over too much power to the police--effectively bypassing basic civic protections by turning cops into judge and jury. But 48 hours after Judge Marcus expressed those objections in December of 2003, city council tweaked the rules just enough to skate past constitutional concerns.

On Wednesday afternoon, Judge Marcus released yet another legal opinion about the DFZ--but this time he was responding to the impact of the zones on African American men. This time around, he upheld the DFZ as legally sound.

In spite of his conclusion, the overall tone of Judge Marcus' opinion was sympathetic to the DFZ's victims and critical of the city's assertions that the policing tool is necessary to bust up "open air drug markets." Like his previous ruling, Judge Marcus compares the DFZ to Elizabethan Poor Laws, which sought to banish "undesirables" from London.

But, in spite of these sympathies, he admitted the evidence presented by the defense attorney simply did not prove his point. At trial, public defender Chris O'Connor stated that the number of African American men excluded from DFZ was twice the neighborhood's population of black men. But, as Judge Marcus pointed out, such claims were not enough.

"Without a baseline addressing the proportion of African Americans in fact engaged in illegal activities, I can draw no sufficient inference," wrote Judge Marcus.

In spite of the ruling, defense attorneys believe the police will be forced to modify how they apply the DFZ rules or face further lawsuits. PB