Sunday, March 1, 2020

Power to Punish: why Salem police don't need more discretion

By Sarah Owens and Michael Livingston

As the Salem City Council prepares to enact a sit-lie ban, two questions loom.

The first is what conditions and circumstances are needed to satisfy Councilor Kaser's precondition for the ban to take effect?  In other words, what constitutes "availability of an indoor or outdoor day space protected from the elements that would be open to the public during the hours [the ban] would be in effect, from 7 a.m. to 9 p.m."?

The second is whether the sit-lie ban will have  the "teeth" Chief Moore says he needs to make the ban effective.

By "teeth" is meant a provision that allows  police the power to exclude offenders from the downtown core.*

Councilors Hoy and Kaser, who voted to remove the "teeth" from the camping ban, want to do the same for sit-lie.  Harrell, S. "Salem Councilor tries to find middle ground in sit-lie but some service providers are dubious." (26 February 2020, Salem Reporter).  Chief Moore has said that the bans are all but pointless without the power to exclude.

This post focuses on the second question, namely, whether police should have the power to exclude individuals for violating the sit-lie ban. 

*SRC 95.750 and 95.760 provide that Salem Police "may" exclude from the Downtown and North Salem Crime Prevention Districts anyone cited or arrested for any one of 57 different felonies, 34 Class "A" misdemeanors, or 47 Class "B" and "C" misdemeanors, violations and infractions (together referred to as "enumerated offenses").  The proposed sit-lie ban would be an infraction.  Currently, the only infractions for which one may be excluded are SRC 95.610, "Prohibited Graffiti", and SRC 95.710, "Sports Activity Prohibited in Certain Areas."

Until recently, Salem police did not have a choice whether or not to exclude; the ordinance provided that anyone arrested or cited for one of the enumerated offenses "shall" be issued an exclusion notice. However, that was not police practice.  As discussed in "Downtown Exclusions Up 65%", crime stats show that police did not follow the dictate of the ordinance, but did just what they felt like in the moment.  Sometimes they excluded, sometimes they didn't. 

Exclusions are effective immediately, and last either 30 days, or 90 days, depending on the severity of the offense. In constitutional terms, an exclusion notice deprives the recipient of a non-trivial liberty interest protected by the Due Process Clause of the 14th Amendment to the U.S. Constitution.  It follows, therefore, that allowing Salem police unfettered discretion to exclude or not to exclude has two big problems:  it substantially raises the risk of erroneous deprivation, and it violates Article 1 Section 20 of the Oregon Constitution. (“No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”)

For reasons that are not hard to guess, the City appears unperturbed by the prospect that its exclusion processes violate the civil rights of its citizens.  After we pointed out multiple times to multiple individuals the discrepancy between police practice and the requirement to exclude under SRC 95.750 and 95.760, the City, rather than correct police practice, simply amended the code to read "may" instead of "shall," which just made the constitutional problem more obvious.

The City reported recently that police had excluded 80 individuals from downtown in recent weeks. One of those individuals appealed his exclusion notice, citing Article 1 Section 20 of the Oregon Constitution.  The City withdrew the exclusion notice.  As for the other 79, and all the others whom police may decide in the coming months to exclude, well, that's their problem if they didn't (or don't have the wherewithal) to file an appeal or make the winning argument, because that's just how the City rolls.

In a 2015 Harvard Law Review Forum comment titled "Process Costs and Police Discretion", Charlie Gerstein and J.J. Preston argue that substantive law is mostly irrelevant to the matter of police discretion involving low-level or "public order" offenses, because process costs -- to the system and to the accused --  are such that these cases rarely go to trial.  "In practice," they say, "our criminal justice system primarily enforces public order prohibitions prior to any conviction by subjecting the accused to arrest, detention, and other legal process."  (Emphasis added.)  In other words, when it comes to low-level offenses, the punishment tends to be the process, and the process tends to be the punishment.

Police know this very well:  to someone who's living on the streets, the prospect of receiving a citation is not much of a deterrent.  That's why Chief Moore and Mayor Bennett want police to have discretion to exclude, or at least arrest, to punish violations of the sit-lie and camping bans.  The City Attorney believes arrest would be unconstitutional under Martin v. Boise ("an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them"), but he sees no problem with punishment by exclusion, because it's not a "criminal" sanction.

For weeks, Bennett has been signaling that he intends to push to give police greater enforcement powers over the sit-lie and camping bans.  He wants to punish, and he isn't the only one.  In the words of one downtown business owner, "[b]y continuing to advocate for these people, instead of punish them, we give them more leniency to destroy our streets and sidewalks."  Woodworth, W. "Modified sit-lie proposal gains favor with Salem councilors, with restrictions." (24 February 2020, Statesman Journal).  

Bennett wants Council to give police the power to exclude, which brings with it the power to enforce the exclusion by arrest for criminal trespass.  Bennett sees no distinction between sitting, lying and camping on public property and other public order or “quality of life” offenses.  Thus, he sees no problem with enforcement of these ordinances being "almost entirely outside the shadow of substantive criminal law and almost entirely within the discretion of the police." 

But there is a problem: sitting, lying and camping are different.  Police do not need to enforce the prohibitions on these activities prior to any conviction to "maintain order” or "keep the peace", which is generally understood to mean "controlling or interrupting low-level misconduct and disrupting potential short-term violence." The only reason police are left to regulate such activities at all is because, in the words of Mayor Bennett,

[W]e can't meet the need for the folks down there with the right kind of place for them to go...I understand that a lot of this comes from trauma, and mental health issues, and serious addiction...and I don't disagree that that's that's the problem.

Punishing sitting and lying and camping with exclusion and the heightened likelihood of arrest will not prevent crime.  It only will punish acts of living in the streets.  Sitting, lying and camping are, or would be, mere "infractions." When, if ever, is it appropriate to punish infractions with exclusion and the heightened likelihood of arrest?  How often have police excluded for SRC 95.610, "Prohibited Graffiti" or SRC 95.710, "Sports Activity Prohibited in Certain Areas"?  Probably not very often, if at all.

The fact is, in part because police have disobeyed Council's previous dictates (i.e., SRC 95.750 and 95.760 prior to amendment), Council has no idea who police are, and are not, excluding from the crime prevention districts, or for what crimes or infractions.  It also has no idea how often variances are granted or for what reasons, and no idea how often variances or exclusions are violated or how many arrests occur as a result.  Most importantly, Council has no idea whether crime prevention districts, in fact, prevent crime and every reason to suspect that the exclusion process fails to satisfy either due process or fundamental fairness.

Given all the above, it makes no sense, and would be nothing short of irresponsible, for Council to allow police unfettered discretion to punish people who are merely sitting, lying or camping downtown with exclusion and the heightened likelihood of arrest, simply to prevent them from committing further acts of living, and without so much as a pre-deprivation hearing.  And, if Council does decide to allow police such discretion, good luck convincing the courts that such punishment doesn't violate the 8th Amendment of the U.S. Constitution because the City Attorney maintains it isn't "criminal."

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