Under section 14 in the city's code, police may hustle along anyone who is "obstruct(ing) or interfer(ing) with the normal flow of pedestrian or vehicular traffic." But police had trouble ousting the activists, as they were protected by the constitutionally guaranteed right to assembly.
That dilemma came to a head last August. The activists had camped out at the spot long enough for city council to draft enforcement guidelines, which allegedly would allow the ordinance to squeak past constitutional restraints. Hours after council adopted the guidelines--barely long enough for the ink to dry--police ticketed and arrested the activists.
But on Wednesday, a circuit court judge ruled that the sit-lie rules were unconstitutional. Not only does that ruling free the activists from fines, but it strikes a damaging blow to the city and the policies of downtown businesses in regards to dealing with homeless and other "undesirables."
"We were really surprised," said Alan Graf, an attorney with the NW Constitutional Rights Center, which handled the lawsuit. "She [the judge] just slammed it."
Multnomah County Circuit Court Judge Marilyn Litzenberger issued a 15-page opinion--an uncommonly lengthy, detailed decision for circuit court. In her opinion, the judge pointed out that Portland's ordinance gave even more discretion to police than similar rules in Cincinnati and Chicago--both of which have been ruled unconstitutional. The judge also pointed out that the language in the ordinance was vague and overly broad. Such loose regulations lend the police too much discretion, according to Judge Litzenberger's opinion.
"They'd made [the ordinance] really general so they could enforce it against anyone they wanted, e.g. homeless people, people who don't look like them, people who don't shop at Nordstrom," posited Graf.
What happens next is largely up to the mayor's office and the District Attorney. Technically, the ordinance will remain on the books. Because Judge Litzenberger is only a circuit court judge, her ruling has no binding effect on other judges. But legal experts point out that the judicial ruling is the most comprehensive legal analysis on the sit-lie rules to date, and will likely have major sway on other judges' rulings, if similar legal actions are brought against the city.
"Technically, it's still valid," admits Graf. "But if they enforce it, we'll sue their asses."
There's also a possibility that city council will redraft the ordinance and try to bring it within constitutional compliance. Last December, a judge struck down the Drug Free Zones (DFZ). Like the sit-lie rules, the DFZ had been used to chase undesirables from the downtown area. Under those rules, if a police officer suspects a person of selling or using drugs, he could boot that person out of downtown for 60 days. The DFZ rules were called unconstitutional because they handed too much power to police officers--essentially skipping past due process requirements and transforming police into both judge and jury. But two days after the DFZ were declared unconstitutional city council tweaked the rules to sidestep those legal concerns.
A spokesperson from council member Erik Sten's office was uncertain whether city council will redraft the sit-lie rules.
"It's a great opportunity to re-examine the whole approach," he said. The original push to put more bite into section 14 came largely at the urging of the Portland Business Alliance (PBA), which was concerned that people loitering downtown were scaring away shoppers. Sten's spokesperson said the recent constitutional setbacks may "soften" PBA's approach a bit.
"I think they've seen that a zero tolerance approach doesn't get what they need." He added, "What they're really concerned about is aggressive panhandling."