For the past decade, defense attorneys have banged their heads against the Drug Free Zones (DFZ), four territories in the city from which police can kick out suspected drug users and sellers. Under the rule, a police officer can boot a person from these zones for 90 days based on the mere suspicion that he or she is using or selling drugs.
Attorneys have long bellowed that those laws are unconstitutional. For starters, they say the law allows police to act as judge and jury–clearly a violation of basic criminal procedure. Ultimately, the police officer never needs to prove the person ever actually committed a crime; the officer must merely suspect illicit behavior. According to attorneys, this commonly means that poor, homeless, or street youth are targeted because they look like ruffians or tweakers.
On Monday, Multnomah County Court Judge Michael Marcus finally declared the DFZ can no longer operate with such impunity, at least in part. In perhaps one of the most frank and humane legal opinions of the past year, Judge Marcus carefully explained how and why the DFZ violates basic criminal process.
“Most of the targets of the Ordinance may have to do with their ‘undesirability’ based on their appearance and status as poor, homeless, mentally ill, unemployed, or simply unconventional in dress and behavior, only incidentally connected with illegal drug activity,” the judge wrote. “Merchants, diners, and shoppers have always preferred that their business and pleasure activities not be challenged by the unpleasant prominence of human failure or suffering.” In a footnote, Judge Marcus likens the DFZ to the Elizabethan Poor Law, which tried to exile poor beggars from London.
Although the opinion does not outright banish the DFZ (and has no bearing on other judges), in effect, the judge has sent city council back to the drawing board. If DFZs are to continue, city council needs to design a new process for how officers determine who is using drugs, and how defendants can appeal their charges. As of press time, city council was set to consider whether to raise the standard of proof necessary for an officer to issue an exclusion. Such a change would help avoid some of the constitutional flaws in the DFZ’s design.