Jason Kaplan

The legal fight began as a simple accusation of jaywalking. With the Rose Festival in full swing last June, Front Avenue had been closed to car traffic. Hoards of people swarmed around the waterfront and streamed across the street.

Black and wearing dreadlocks, Terry Yancy stood out in the crowd. Earlier in the afternoon, two police officers had warned Yancy that they had their eye on him, though he had no criminal record. An hour after that confrontation, Yancy, who is homeless, strolled across Front Avenue. Immediately, the officers ticketed him for jaywalking, even though there was no traffic.

What the police did next has become the crux of a legal crusade in Portland. Yancy was arrested and given a "park exclusion." A little-known but potent City Ordinance, police are allowed to exclude any person from city parks for violating a law--even one as minor as jaywalking or violating Tri-Met rules. Local attorneys and advocates for the homeless claim the ordinance is being mishandled and potentially abused, used more as a means to bar "undesirables."

"It gives the cops a chance to pick and choose who they're going to kick out," contends Ed Johnson, an attorney with Legal Aid Services who is handling Yancy's case.

For the past two years, according to police records, officers have handed out park exclusions at a rate of roughly seven per day. The most recent available information shows that between June, 1999 and June, 2000, 2400 park exclusions were given.

Even more troubling, these exclusions appear to have few remedies. Under the ordinance, anyone kicked out of the parks may appeal. Yet, as Johnson points out, it's unlikely the vast majority will bother to do so. "It's easier to just steer clear [of that park]," explains Johnson. It often takes 10 to 15 days to schedule an appeal. By that time, the exclusion has nearly expired.

Moreover, Johnson feels the appeals process fails to provide due justice to the excluded person. The ordinance dictates that a "hearing officer"--a low level city bureaucrat--decides the merits of each case. In Yancy's appeal, the hearing officer merely shrugged his shoulders and refused to repeal the exclusion.

In early January, Johnson contested the hearing officer's decision and, more importantly, his authority. Arguing in front of Circuit Court Judge Ellen Rosenblum, Johnson contested the very constitutionality of exclusions on the grounds that the ordinance essentially turns city employees into judge and jury. If successful, the lawsuit could deliver the deathblow to the mechanics of the ordinance; yet, two months later, Johnson and Yancy are still waiting on a decision.

Even so, while awaiting the ruling, Johnson received encouraging news. A year ago, Johnson handled a similar complaint. In that case, Scott Riddell, who is better known as Statue Man--a performance artist who stands motionless in various downtown locations--was booted from Pioneer Square. At the time, he was standing on top of a trash can.

"With all the shit that's going on at Pioneer Square, to kick out a guy for standing motionless," says Johnson, dumbfounded at the discretion allowed patrolling officers.

During the course of the 30 days--when Riddell was supposed to be excluded from Pioneer Square--he wandered back in several times. As a result, the police slammed him with four counts of criminal trespass, each carrying a $50 fine. When Riddell finally appealed his fines to the court, the case was tossed out. The court said the matter had to be handled by the city hearing officer. But, because Riddell never bothered to appeal his exclusions to this city official, the court ruled he had waived any rights to appeal his charges of trespass.

It was like arguing in front of the Queen of Hearts, where all the rules confound even the most sensible plea for even-handed justice. Undeterred, Johnson appealed Riddell's case.

On February 28, the Court of Appeals agreed with Johnson and gave a stern smack down to the circuit court, telling them to re-hear the case and, moreover, that Riddell did not need to appeal his case to the city official. The ruling severely undermines the authority of the city hearing officer and, more broadly, the power of the exclusion ordinance.