Wednesday, September 20, 2017

Salem's Resuscitated "Sit-Lie" Ordinance

No Safety Threat                        Safety Threat
As reported in a previous blog, the  City Council's agenda for the 9/11/17 meeting, published the week prior to the meeting, announced that the City Council would consider a new "sit-lie" ordinance, Ordinance Bill 22-17, at its next meeting on 9/25/17.

It was news to most of us, including several City Councilors, who learned of it through social media after the 9/11/17 meeting.  Questions were asked.  

Subsequently, that part of the agenda, including the links to the ordinance bill, were removed.  More questions were asked.

Subsequent to those questions, the text was put back, with new links to the ordinance bill.  The item does appear to be on the agenda for the 9/25/17 meeting, and the Council has been offered three options:  1) proceed to second reading for enactment at a future meeting, 2) direct that the ordinance bill be scheduled for a public hearing, or 3) refer the ordinance back to staff to draft changes.  We'd like to suggest a fourth option: direct that the ordinance bill be scheduled for a work session. 

Whatever they decide to do Monday night, we now have the bill available again, and we can continue with our overview.  Where were we?

Oh yes, we were pondering what evidence the City might have to support the bill's findings that people sitting, lying and leaving personalty on sidewalks threatens pedestrian safety, and intimidates and deters people from using the sidewalk and public and private services (i.e., businesses).  

As indicated in the photo above and in the previous blog, evidence supporting the pedestrian safety threat rationale will need to be reconciled with the bill's exceptions, which suggest that safety may be compromised if necessary to further the interests of certain types of business -- but not the jewelry-on-a-blanket or the street-corner-missionary type of business (unless the missionary is sitting on a bench, standing or in a wheelchair), and certainly not panhandling (likewise).

Maybe such distinctions are constitutionally defensible, but who's to say that sidewalks crowded with signs, chairs, tables and cigarette smoke aren't just as much of a threat to pedestrian safety?  And, who's to say such crowded sidewalks don't have a deterrent effect on shopping?  What's the rational basis for prohibiting one type of use and not the other, if safety is the paramount concern?

The ordinance bill finds that "[p]eople who sit or lie down on public sidewalks, or...leave personal property unattended...deter city residents and visitors from patronizing local shops, restaurants and businesses...and deter people from using the sidewalks in their neighborhoods."  Kinda reminds us of the bad old days, when, based on similar assumptions, the authorities tried to segregate "city residents and visitors" from "people" Sarah's grandmothers referred to as "darkies" and "nigras."   

"People who sit or lie down on public sidewalks, or...leave personal property unattended" is, as we all know, code for scruffy, unwashed, disabled people, people attending to voices in their heads, people busking and panhandling and preaching the gospel and selling cheap jewelry, whether they're sitting, lying, standing or walking by.

"Sorry, you can't sit here"?
The findings state that the purpose of warning-before-citing is to allow the person "the opportunity to obtain referrals to appropriate service entities."  This follows the common assumption that people who live in the streets are not receiving services, or they wouldn't look like they do, or act the way they act.  Regardless, it's fairly obvious that the ordinance is not concerned with whether services are needed.

Years ago, it was so much easier for local authorities to discriminate.  But now, after decades of litigation, it's getting harder and harder to find a "rational basis" that can withstand a legal challenge.  The "rational basis" of the proposed ordinance would appear to be that its prohibitions are needed to maintain public safety, and that they merely target certain kinds of behavior, not any particular group.  Whether that's defensible in court will depend on the case, which basically makes the proposed ordinance a bill for a lawsuit.  

About the finding that people sitting, lying or leaving personalty on sidewalks deters people from using the sidewalks in "their" neighborhoods, it's hard to know exactly what to say, except, really?  More than, say, the fact that so many neighborhood sidewalks need repair? 

Under proposed SRC 95.740, the City may remove unattended personal property from the sidewalk if it poses an immediate threat to public health, safety, or welfare.  (Does the City not already have the authority it needs to remove dangerous material from the sidewalk?)

If the personalty's not an immediate threat, it has to be posted for 24 hours before it may be removed, and after it's removed, the City must hold it for 30 days before it can be destroyed (unless it's perishable, etc.).  During the 30-day retention period, the City must provide the owner reasonable access.  As others have pointed out, however, "an 800 number is of no use if you don't have a phone, a Web address is not helpful if you don't have access to the Internet, and a storage facility halfway across town doesn't help if you lack bus fare."  

City code (SRC 95.560, above) already effectively prohibits camping (including car camping) on public property or right of way.  Nevertheless, proposed SRC 95.730 prohibits setting up, or remaining in a campsite for the purpose of establishing or maintaining a place to live anywhere on public property or in the right of way.  Does the proposed "no camping" provision add anything not available under SRC 95.560?  Ask the City Attorney.  Presumably, it does.

And presumably, each part of Ordinance Bill 22-17, with its findings as to legislative intent and its three-pronged approach (no sitting/lying, no unattended personalty, no camping), is considered somehow necessary, consistent with City policies, and worded in such a way as to withstand the type of legal challenges that have been successful in other jurisdictions (see, e.g., here and here).  It will be important to hear the City Attorney and Chief Moore speak to these questions, whenever the bill comes before the City Council, hopefully in a work session. 

[9/21/17 Update: The Statesman Journal reported today that the City "takes its chances" passing an ordinance bill like 22-17, which the headline refers to as a "homeless crackdown." 
In an interview at City Hall, officials characterized the proposal as striking a balance between people's rights and concerns that have been raised about proper use of the sidewalks.
Police officers do all they can to find people with "chronic problems and issues" resources and put them in contact with places where they can get help, said Deputy Chief Skip Miller, with the Salem Police Department.
Deputy Chief Miller also said, according to the article, "Officers can't help when they ["people with chronic problems and issues"] refuse services, but police also can't solve others' business and safety concerns, he said."  The police can't help, so the answer is to cite/exclude?  For sitting and lying on the sidewalk?  Hard facts make bad law, as the saying goes, and this is a classic example.  "We're in no way trying to make homelessness a crime", the article quotes Miller as saying, without irony, considering the same argument (lack of intent) was used to invalidate a similar Portland ordinance in 2009.

Where were Deputy Chief Miller and his ordinance bill three years ago, when Mayor Peterson was complaining about forever having to "step over homeless people" downtown?  We didn't think we could "arrest our way out of this" back then, so what's changed?  If Deputy Chief Miller's thinking is representative, it signals a policy shift at the Police Department and in the City Attorney's office.  And the shift, in our view, is from tough-minded, reality-based thinking to something much weaker, wishful, and short-sighted.  Hopefully, the City Council will see the situation in its true light, and refuse to enact this ordinance bill.]