Mayor Sam Adams began moving swiftly toward replacing the now-defunct sit-lie ordinance on Tuesday morning, August 18—just days after Multnomah County Circuit Court Judge Stephen Bushong annihilated the old one at a special "clarification" session on Friday afternoon, August 14.
Bushong cited a host of cases—including one old anti-loitering law going back to 1968—to show that any sit-lie law would have trouble passing constitutional muster. He also cited the example of a Supreme Court case against Chicago's "gang congregation" ordinance from 2002, which was also struck down as unconstitutional.
In that case, the Supreme Court stated: "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. 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."
Yeah, good luck with that. Can Adams' chief of staff, Tom Miller, guarantee the new iteration of the law won't be struck down as unconstitutional, just like those of the past?
"We met with the judge for clarity of his opinion last Friday and the judge told us that this is a very complex area of law, and as such, there are no guarantees that whatever tool we aim to provide, that it won't be ruled unconstitutional down the road," Miller told me on Tuesday.
So the new law might well be ruled unconstitutional in a year, but in the meantime cops will be able to go about harassing people with it, just the same?
"We have an obligation to the citizens of Portland but it also goes without saying that we need to adhere to the constitution," Miller said, declining a $10 bet that the new ordinance would be ruled unconstitutional again in another 18 months.
"History is on your side, obviously," he said.
So the mayor doesn't care if the law is found unconstitutional again, in the end?
"That statement implies a level of cynicism that the city does not share," said Miller.
Actually, on this issue, I don't think I am a cynic. However, I am disgusted—disgusted that our city places the interest of business and clear sidewalks above the constitutional rulings of its judges and the rights of its people.