By Sarah Owens and Michael Livingston
Updated. Originally published under "Salem's Aborted "Sit-Lie" Ordinance" (14 September 2017) and "Salem's Resuscitated "Sit-Lie" Ordinance" (20 September 2017).
The week after Labor Day, the City announced the Council would be considering a new "sit-lie" ordinance, Ordinance Bill 22-17, on September 25 (see here).
It was news to most of us, including several City Councilors, who learned of it through social media. Questions were asked.
Then, that part of the agenda, including the links to the ordinance bill, was removed. More questions were asked.
Then, that part of the agenda was restored, with new links to the ordinance bill. Now, several days later, the item does appear to be on the the agenda for the September 25 meeting with three options for the Council's consideration: 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.
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| No Safety Threat Safety Threat |
The staff report, "signed" by our Chief of Police, Jerry Moore, summarized the issues the bill was intended to address as "extended sitting or lying down on sidewalks, leaving personal property unattended on sidewalks, and campsites on public property", and the bill itself this way:
With certain exceptions, Ordinance Bill No. 22-17 restricts sitting or lying on public sidewalks between the hours of 7:00 am and 9:00 pm. It also prohibits camping and leaving personal property unattended on the sidewalk. Prior to taking enforcement action, the ordinance bill requires City personnel to warn the individual that the conduct is in violation of the code, and give them an opportunity to correct it
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| No Safety Threat Safety Threat |
Note that the problem was identified as "extended" sitting or lying down, and the bill prohibits any sitting or lying down, with these exceptions:
sitting or lying down due to a medical emergency; using a
wheelchair/walker, stroller, operating or patronizing a business
conducted in conformance with the law, participating in or attending a
parade, festival, performance, rally, demonstration, meeting or
similar event conducted "pursuant to" and in accordance with the law,
sitting on a fixed chair or bench or bus stop ("while waiting for transport").
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| No Safety Threat Safety Threat |
As Michah Houghton put it over on AP's FB page, "Warned = 'hey you can't sit or lie here', Opportunity to correct it = 'Move Along please.'"
Under the initial proposed ordinance, violations were infractions, which can get a person excluded from certain parts of the City, unless there's an appeal or a variance given.
Does
Salem need a law like this? Yes, said Chief Moore's initial report:
the "lack of existing law that effectively address[es] the harms created
by people sitting, laying [sic] or leaving personal property on
public sidewalks, and camping on public property" has been a "barrier"
eliminating the behavior.
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| No Safety Threat Double Safety Threat |
So, what "harms" result from people sitting, lying or leaving personalty on sidewalks? According to the bill's findings,
when they do that, they "threaten the safety and welfare of all
pedestrians, with the greatest impact on those pedestrians who are
elderly, young children, or who have physical and mental disabilities."
Is
there evidence that the safety and welfare of all pedestrians are
threatened by people sitting, lying or leaving personalty on sidewalks?
According to Chief Moore's initial report, "The City has received
complaints from residents, businesses and social service
providers...[that] include people feeling unsafe to use public
sidewalks, and businesses claiming their enterprises are suffering from
this behavior." Hmm. "Feeling" unsafe? "Claiming" business suffers"?
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)?
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?
"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.
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| "Sorry, you can't sit here"? |
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.
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. (They didn't.)
On September 21, 2017, the Statesman Journal reported 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 and 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.
The police "can't help", so the answer is to cite and 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.
On September 24, 2017, Councilor Hoy signaled his lack of support for the ordinance bill on Facebook, garnering much support, including 60 shares.
On September 24, 2017, Councilor Hoy signaled his lack of support for the ordinance bill on Facebook, garnering much support, including 60 shares.
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