Monday, December 11, 2006

Same Sit, Different Day: Potter Unveils "New" D'town Safety Plan

In a 1pm press conference today that appears to be as much about proper recycling as reducing the "street disorder and sidewalk nuisances" in Portland, Mayor Tom Potter will announce the results of the Safe Access For Everyone (SAFE) task force organized to address concerns about downtown disturbances and appearances. Herewith, a little background on the group and then their proposals:
The Street Access For Everyone (SAFE) proposal was crafted by a coalition of business people, homeless advocates, service providers, public safety officials and community members who met for 4 months. Their recommendations came with the caveat that all five be implemented together.

The recommendations include:

1. Implementing a Day Access/Resource Center for homeless adult women and men that is open during the day, with adequate bathroom facilities and storage lockers, and experienced outreach/engagement/housing placement staff. Eventually, a permanent Center with space for 150 people will be built. Currently, shelters close for the day at 7 a.m., leaving most homeless with no place to go or access to restrooms.

Enact a "High Pedestrian Traffic Area" ordinance that prohibits anyone from sitting or lying on a public sidewalk between 7 am and 9 pm in defined High Pedestrian Traffic Areas. Violators will be warned, and could receive a non-criminal citation in West Side Community Court, with the possibility of fines up to $250, community service and/or referral for appropriate services/treatment. The initial affected areas with be the "Fareless Square" in downtown Portland and the Lloyd District. Other districts may apply for inclusion.

3. Provide adequate public seating and benches in "High Pedestrian Traffic Areas" to provide alternatives to sitting or lying on sidewalks.

4. Implement a public restroom plan that makes more restroom facilities available to the public in high traffic areas.

5. Create an oversight committee to implement these strategies.
Although Number 4, "implement a public restroom plan," is a welcome development for ALL downtown denizens, and one surely demanded most strongly by homeless advocates, the dominant discussion about the SAFE proposal is likely to come from what seems to be another tweaked version of the "obstruction as nuisance" laws that Portland has been experimenting and grappling with for years.

Ever since prior mayor Vera Katz pushed through a version of the "sit/lie" ordinance, prohibiting sitting or lying down on public sidewalks, the question of dealing with homelessness and what I'll call "petty vagrancy" in Portland has revolved around some kind of law designed to keep the sidewalks clear of riff-raff. Problem is, the courts (most recently the federal Ninth Appeals Circuit {pdf}) have generally found the practice of excluding layabouts unconsitutional, on the grounds that people need to rest and if you have nowhere to go to rest, the sidewalk at times is pretty much your only option.

The City's current law is not strictly a sit/lie ordinance, owing both to court rulings and heavy pressure from homeless and housing advocates. It attempts to circumvent the ruling that you have the right to rest in public, by seeking to cite people who are "obstructing" the free flow of pedestrian traffic and thus creating a "nuisance." In this way, police can argue that they are protecting the rights of others not to be impeded, rather than restricting the rights of those who need rest and have no alternatives.

Even this redrawing of the ordinance has its problems, however. As a state appeals court found in 2005 upon reviewing an intentional test of the Portland regulation, the act of "obstruction" has both an active and a passive expression--you can either intend to block someone's way, or simply block it on the basis of the space you are occupying, without actually intending to impede anyone:
The legislative history thus makes clear the legislature's intention to preserve from criminal liability conduct that obstructs vehicular or pedestrian traffic in the absence of proof that the actor either intended to create public inconveniences, annoyance, or alarm, or recklessly created a risk of doing so. The legislature consciously avoided creating a strict liability offense out of concern for constitutionally protected rights of freedom of expression. PCC 14A.50.030 (2003), as we have noted, creates just such a strict liability offense. The ordinance prohibits precisely what the legislature intended to permit when it enacted ORS 166.025. Consequently, the ordinance conflicts with state law and is preempted.
That last point there is important--there are already state laws that exist to prevent obstructive behavior, but the line was clearly drawn in Salem to only include active or reckless obstruction. Simply being in someone's way--what the court referred to as a "strict liability offense"--is not a violation.

So with that on the table, homeless advocates like the Street News Service and Israel Bayer's excellent Rocket Poetry blog have been expectantly awaiting the impact on Portland's current laws. As Bayer reported in May, the original ordinance was due to sunset in June. The Portland Business Alliance sought a 6-month extension with a chance for the PBA-heavy Safety Action Committee to review it, but Potter opted for his own task force with a more balanced membership--while still extending the ordinance until now.

Given that relatively more balanced membership, one might have expected some new wrinkles to address or even eliminate the workability of the ordinance. I'm in the process of contacting people in the know on the task force, to find out how the competing goals of protecting retail profits and the rights of the homeless were reconciled--but it doesn't look like much reconciling went on.

Let's go back to Potter's press release above, and look at item #2 again: "Enact a "High Pedestrian Traffic Area" ordinance that prohibits anyone from sitting or lying on a public sidewalk between 7 am and 9 pm in defined High Pedestrian Traffic Areas." Perhaps that's an oversimplified reduction of what is being proposed, but not only does it not appear to address any tension between active and passive obstruction, from the wording it would seem that the proposal seeks to take us a step backwards, once again creating a blanket law that bans people from lying or sitting down on the sidewalk, regardless of intent or obstructive influence. The only changes mentioned are a narrowing of applicability, to "high traffic" areas during what might broadly be called daytime hours.

I'm no lawyer, but it's entirely unclear to me how any of the legal precedents currently set can be worked around, on the basis of time of day or usage patterns of the sidewalk. The issues, as noted, are intent and the broader question of expression mandated by involuntary conditions (ie, homelessness). What role did the social advocates play in crafting a proposal that quite possibly sets back those rights? Bayer asks some of the same questions in response to early leaks about SAFE's proposals, in a Rocket Poetry post a week ago.

I suspect the answer lies in the notation that "their recommendations came with the caveat that all five be implemented together." Guessing at the politics of the situation, it may have been clear to advocates that some form of exclusion was what the business and safety interests wanted, and they were not going to budge. Given that the sit/lie ordinance is already on the books, and having only yielded a dozen or so upheld citations despite all the controversy, perhaps they figured that a sit/lie status quo was a reasonable price to pay for getting other items--like public restrooms--onto the table and into reality. Perhaps it was felt that since the legal wrangling over sit/lie is not done, it was not worth the effort and political capital needed to kill the ordinance before all external influences upon it are brought to bear.

So for now, you're still not allowed to stop and sniff the City of Roses--but soon you might not have to furtively pee on them after a late night at the Thirsty Lion anymore. And if you're homeless, eventually you might get the chance to store your few belongings in a locker and take a shower once in a while during the day. Maybe if the people forced to sit/lie smell better, people won't get so uptight about stepping over them?