Homeless in a Time of Coronavirus

By Sarah Owens and Michael Livingston

Last Monday, March 23, City Council conducted sit-lie's second reading on an 8-Leung vote.  COVID-19 mitigation measures precluded the public from offering comment at the meeting, so Councilor Leung was the sole voice of  protest. 

The text of her comment: 

As the 2nd reading of Sit-Lie (SRC 95.715) comes before us tonight, I am frustrated. I was not on council for sit lie 1.0 and did not vote then. I voted no in November 2019 for 2.0 and voted no on the first reading of 3.0. Today, I will be voting no again.

Over the past few months, we have received emails and telephone calls about our unsheltered community. Our unsheltered communities are not a new concern nor is Oregon the only state dealing with the increase of our unsheltered. Several emails we received have resorted to calling our unsheltered as “others” and likened our unsheltered communities to barn animals.

Right now, we are in a public health crisis. In the past year, we already moved our unsheltered SEVERAL times. Each move brings trauma and mass confusion. We heard the stories. We see the impact. We banned camping in December under the belief that we would have additional shelter beds. That backfired and the unsheltered did the next option possible – find cover under awnings to protect themselves from the elements. Now with the COVID-19 crisis, we pushed our unsheltered BACK OUT into the elements, with tents and sleeping bags provided by ARCHES. Yet, when I asked about accessibility to bathrooms and hand washing stations, the response was there was not going to be accessibility 24/7, and ONLY during park operating hours. I recently learned that the water and restrooms were locked for our unsheltered during open hours. This is unacceptable and a violation of a basic human right. In other words, we force people, a number with accessibility needs, to hold their bowel movement. How many of you have at least 1 restroom in your home? When you have to get up in the middle of the night, do you use the restroom? Now imagine how hard it would be to not be able to use your restroom at all. Could you do it? If not, what would you do?

Our unsheltered communities did not become like this overnight. Many are Salem residents, born and raised. I want to ask my fellow councilors who voted yay at the first reading to reconsider and think about the impact. We push our unsheltered into the woods/parks for now during COVID-19. But once the COVID-19 crisis ends, which I hope is soon, what will happen? Several of you talked about evidence based measures. Where is the evidence based studies that indicate success in passing a sit-lie ban for our unsheltered? When has it become illegal for someone to sit/lie down? Do you stand all day at your job? Do you stand up all day at home? Our unsheltered have NO home. OUTSIDE is their home. A number have jobs, some are in school. Yet, they have no place to live. What are we telling them? What about those with mental health needs? Are we saying that they are less of a person because they do not have a physical roof over their head?

I know that when I leave council chambers tonight, I will have made a decision that I will be proud of. A vote for our marginalized, ignored, and forgotten community. This is why sit-lie must die. I urge my fellow councilors to vote nay.

The day before the vote, Statesman Journal published a "Forward This" column headlined "Homelessness pushes businesses to move" that David Watson described on social media as "nothing but devastating."  

Taken at face value this SJ story is one of the most one-sided stories on Salem’s downtown homeless community I have read. One downtown merchant after another, including former merchants who have already left downtown, this SJ story demonizes homeless people, one merchant at-a-time."

Jimmy Jones described it as "disgusting" and Stephen Goins as "sickening."

Fear mongering at its finest – over generalized isolated and extreme stories, void of facts/statistics on actual cases or law enforcement activity, or any inclusion of research on other variables impacting financial health of downtown looking at years to show changes, rent/lease rates, etc.   

Sit-lie was immediately effective on the second reading owing to its emergency clause, but may not be enforced under current circumstances.  See "Sit-Lie Passes, But Will Cost."  Also see Harrell, S. "Salem adopts sit-lie ban a week after emergency declaration cleared downtown streets of homeless people."  (24 March 2020, Salem Reporter.)  Dave Miller Think Out Loud interview with Jimmy Jones.

Also on Monday, Governor Brown issued Executive Order 20-12, ordering all Oregonians to "stay home", even homeless Oregonians.  See Harbarger, M. "Oregon's 'stay at home' order leaves questions for people with no homes."  (23 March 2020, The Oregonian/OregonLive.)  The Governor's order, which remains in effect until further notice, puts pressure on local officials throughout the state not to roust, sweep, clean up or clear homeless encampments like the ones established this week at Wallace Marine and Cascades Gateway parks.  See "COVID-19 Returns Campers to City Parks."  

Update:  Harrell, S. "Homeless person in Salem quarantined in motel after testing positive for COVID-19."  (26 March 2020, Salem Reporter.)

COVID-19 Returns Campers to City Parks

By Sarah Owens and Michael Livingston

Wallace Marine Park after September 2019 bulldozing, photo courtesy Statesman Journal

Six months after the City cleared homeless camps in Wallace Marine and Cascades Gateway parks, campers have returned.  See Bach, J. and Ranovich, C.  "Recent evictions, police activity could end decades of homeless camps in Wallace Marine Park."  (15 September 2019, Statesman Journal.)  In a desperate effort to remove 30-50 people living on the sidewalks outside Rite Aid and along Center Street, City Council this week held an emergency session, banned loitering and gatherings in public spaces, and opened the two parks to camping in unimproved areas through April 28.  See "Sit-Lie Meets COVID-19."

News of the temporary policy shift spread quickly to campers and other homeless individuals living less visibly throughout Salem's 18 neighborhoods, and by week's end, there were reportedly about 100 camps in Wallace Marine Park and 30 in Cascades Gateway Park.  No one, including the City, has any idea how long they will be allowed to remain.  Right now, everyone and everything's focused on controlling the spread of COVID-19.  Update:  Harrell, S. "Homeless person in Salem quarantined in motel after testing positive for COVID-19."  (26 March 2020, Salem Reporter.)  Dave Miller Think Out Loud interview with Jimmy Jones.

Monday night, Council will conduct the second reading of Ordinance Bill 6-20, which bans sitting and lying on sidewalks and City rights of way.  "See Sit Lie Passes, But Will Cost."  The ban is effective immediately, but may not be enforced "until the opening of additional daytime space that is protected from the elements and includes access to toilets. This space must be open during all periods the restrictions in this ordinance are in effect (7:00 a.m. to 9:00 p.m., Monday through Sunday)."  See Section 2(r).

So long as its loitering-gathering ban remains in place, the City doesn't "need" sit-lie to control the homeless downtown.  But, once the COVID-19 pandemic is under control, say a year from now, Council will face exactly the same situation it faced so disastrously last fall:  breaking up the camps in the parks and surrounding areas means driving campers into downtown and nearby neighborhoods, unless in the mean time providers have managed to house a significant number of campers, stand up a permanent low-barrier shelter, and open a 24/7 navigation center.

None of those contingencies seems likely in the aftermath of the pandemic.  The special session that  Mayor Bennett was hoping would focus on "the homeless package" will now be focused on the COVID-19 response.  And the $45 million the legislature was ready to commit to ending homelessness has basically dried up, as the state, if not the world, hurtles into an economic recession.  And with it, any hope Salem had of standing up a permanent low-barrier shelter or 24/7 navigation center by this fall.

If anyone's wondering whether Council might resort to its big tent solution as a fall back low-barrier shelter (see "Sit Lie Could Cost $30-$75K a Month"), that seems even less likely.  Monday night, Council considers Resolution No. 2020-19, withdrawing the referral of Ordinance Bill No. 11-19 (creating an employee-based payroll tax) to Salem voters at the May 19, 2020 election.  It will doubtless pass.  That means no payroll tax revenue in the City's immediate future, which means no City funds for a big tent shelter this fall.        

The City is reportedly upset to discover so many campers at the parks.  For some reason, they didn't believe what Jimmy Jones repeated ad nauseum about their significant numbers and dispersal throughout the City.  But, what the City should be concerned about is the effect of the COVID-19 outbreak on providers and the implications for their clients.  The ARCHES Project has had to close its mobile shower service and day shelter.  Staff are conducting outreach to the camps and downtown (yes, there are still people living in the streets downtown) and  clients will still be able to use the restroom and pick up mail and a sandwich.  The Union Gospel Mission reportedly has stopped doing intakes (Men's Mission and Simonka House) and is otherwise serving only those enrolled in a program, except that the Men's Mission is still providing bagged lunches.  Only HOAP (Northwest Human Services) is providing day shelter, showers and laundry.

The time will come when the City again decides it's time to clean up the camps in Wallace Marine and Cascades Gateway parks.  It's unrealistic, perhaps, to expect the City to begin planning for that day now, with such uncertainty affecting so many aspects of daily life and no immediate end to the uncertainty in sight.  Nevertheless, the question should be in the back of everyone's mind.  What is the plan?  Because the day will come, and the question must be asked -- and answered satisfactorily -- before action is taken to break up the camps and sweep people out of the parks.  If the City is to avoid what happened in 2019, the City must be "pro" active.  That means, before the situation becomes a public health emergency, the City should develop a plan with providers, and share it with the community, and begin as soon as possible.

In the mean time, it will come as a surprise to no one that, aside from moving homeless off of downtown streets, that the City is not enforcing the ban on gathering and loitering.  See Woodworth, W. "Q&A: How do Salem's new rules on gatherings, camping in parks affect residents?" (20 March 2020, Statesman Journal.)  Talking to people who've gathered in chairs outside Starbucks and elsewhere around downtown and Bush Park, we find people are generally aware of the ban and social distancing guidance, and simply don't care.  Salem Health has closed the Let's All Play Playground.  If the City Council was serious about wanting to prevent the spread of COVID-19, it should take similar actions.

Bush Park, March 21, 2020

Sit-Lie Meets COVID-19

By Sarah Owens and Michael Livingston

Center Street, Downtown Salem  Photo courtesy KGWNews

The night sit-lie got its first reading, Mayor Bennett was confident, happy even.  Yes, it had taken too long, and it didn't have any "teeth", and it was going to cost too much, but he had delivered.  Nothing mattered more than being able to say he had delivered.  Finally, Council would be able to stop 30-50 people downtown from, as Councilor Nanke put it, "destroying a large segment of our economy." 

Never mind that Governor Brown had just the day before declared a state of emergency due to the COVID-19 outbreak.

Bennett called on Councilor Kaser to speak first.  "This [Ordinance Bill 6-20] is really trying to strike a balance" she said, insisting "it doesn't take away from anything else that the City is doing" to try get people housed, even though providers have warned repeatedly the ban could easily backfire the way the camp sweeps and camping ban had backfired.

Kaser didn't try to justify the ban, which many consider cruel and inhumane.  She preferred to talk about the big tent that the City was going to put up in Marion Square Park. 

"Looking for a day space for people is something we have not really tried", Kaser mused, adding that she "wouldn't be opposed to seeing a staff report on this come back fairly quickly...just to see how it's going to go."  Because she didn't know how it was going to go.  No one knew.  The tent was a sort of social experiment, just like the camping and sit-lie bans.  "It's something that I think we need to try", she said, adding, "I really hope that we won't need this in a year", begging the question, did Salem "need this" at all.

Councilor Nordyke, who normally exhorted the Council to stick with proven strategies, evidence-based practices, and expert advice, said simply that she supported the bill because it provided day space and toilets, unlike "previous iterations."  For Nordyke, the bill was not about banning sitting and lying on the sidewalk -- which she had previously said was unconstitutional --  but "about pushing the City to create additional day center space."

In Nordyke's imagination, the 30-50 people living on the sidewalk outside Rite Aid were just going to pick up their belongings every morning and move a block or two to Marion Square Park and The ARCHES Project, where they would sojourn during the hours the ban was in effect (7a to 9p).  In her mind, banning them from the sidewalk was going to result in their being safer, healthier, "more dignified", and easier for providers to locate.      

Sidewalk outside Rite Aid, March 17, 2020

Neither Kaser nor Nordyke mentioned the price tag -- $30K/mo for the tent, toilets, security, which Councilor Nanke called "significant."  Nanke had questions.  He wondered about the size of the tent, which City Manager Powers explained was needed to accommodate those on the sidewalks outside Rite Aid and Salem Center (30-50) plus areas outside downtown (~20), plus belongings. Nanke also wondered about renting vs. owning the tent, the cost of security, and problems with chemical toilets.

The chemical toilets were "an interim solution", Bennett said, adding that the City was "look[ing] for funding assistance" to purchase a permanent facility like a Portland Loo.  Hoy ventured that the cost estimates were "a worse case scenario", and said "we have been talking with partners..a lot of folks throughout the community who may or may not be willing to step up and help us."  He said he was "fairly irritated" because "this is going to cost us a lot of money that we shouldn't be spending -- that we shouldn't have to spend...because the legislature [was] committed to this before they shut down."  He and Councilor Andersen both claimed the City was being forced to fill a gap due to legislature's failure to allocate funds for a low-barrier shelter/nav center.  

However, the state was never interested in helping the City provide "day space."  The state was interested in Salem opening a low-barrier shelter/nav center.  Had the state funding come through as projected, it would have taken Salem months to get a 24/7 low-barrier shelter/nav center up and running.  (Section 10 (3) of HB 4001 gave cities until November 30, 2020 to get shelter/nav centers up and running, but based on Salem's experience with such projects, that seems wildly unrealistic.)

In addition to suggesting costs might be reduced by contributions from unnamed sources, Bennett talked about "when" the Governor reconvened a special session, he hoped Speaker Kotek's "homeless package" was at the "top of the agenda."  But Governor Brown had said earlier in the week that she was reluctant convene a special session unless legislative leaders come up with a “functioning” plan.  Withycombe, C. "End of legislative session leaves pile of dead bills in its wake."  (9 March 2020, Salem Reporter.)  That was before Brown declared the state of emergency (March 8), banned large gatherings and closed schools (March 12), restaurants and bars (March 16).  Zaitz, L. "Governor orders Salem-Keizer schools, all others in state, closed in a move to contain coronavirus spread."  (12 March 2020, Salem Reporter.)  Withycombe, C. "Coronavirus: Gov. Kate Brown orders restaurants, bars to close, takeout allowed."  (16 March 2020, Statesman Journal.)

Nanke asked whether, if the legislature did come through, the City still was obligated to provide the tent, etc., or could "everything just go to ARCHES?"  Bennett said only that there would be "adjustments along the way", and that "we need to see what kind of public support -- private support..." before he trailed off in another direction, eventually calling on Councilor Andersen.

"This is a national problem...due to...factors that are way beyond our control...and we have to deal with the situation", Andersen deflected.  He called the situation "horrible", without describing it further, and claimed to be "extremely irritated" with the legislature because "mental health and social services are not the City's responsibility."  He attempted to defend reversing his position on the constitutionality of sit-lie by saying in Ordinance Bill 6-20, the ban was "directed toward conduct not toward status."  Echoing Bennett and Hoy, he minimized the cost to the City, calling the $30K per month price a "bargain" compared to what the City was prepared to pay in December for a seasonal low-barrier shelter, and saying "private folks in the City...potentially can step up here and help us with the funding."  He closed platitudinously: "the best compromise is when each side of the issue is a little unhappy."

Center Street, March 17, 2020

The only member of Council to express concern over the people targeted by sit-lie was Councilor Leung, but she was on the phone and seemingly ill.  Her concerns were easily brushed aside as Council moved on to concerns about enforcement.  Like Nanke and Bennett, Councilor Lewis believed that, without the exclusion provision, sit-lie would be "useless."  He said he hoped police would "up the ante" in dealing with those "living on the sidewalks", perhaps referring to the lax enforcement of the camping ban and other low-level offenses downtown.

Ordinance Bill 6-20 passed the first reading 7-1, with Leung opposed and Ausec absent.  See "Sit-Lie Passes, But it Will Cost."  It was due to become effective immediately on second reading, March 23.  Then the Governor called an end to gatherings of more than 50, then 25, then 10, making the tent solution unworkable and effectively killing Ordinance Bill 6-20.

The measures taken to delay the spread of COVID-19, mainly the closures and the social distancing requirements, will be in place for weeks, if not months, long enough for people to change habits, not go out as much, shop even more on line.  If retail survives COVID-19 at all, it's going to have to face the threat of recession.

But, COVID-19's not killed sit-lie.  It's just given the City a different excuse to move people along.  Tonight, March 17, there will be an emergency meeting of the City Council, the Salem Housing Authority and the Urban Renewal Agency.  The agenda's not been published, but it seems very likely that there will be some sort of emergency declaration that will allow police to clear the streets (and keep them clear) for public health reasons relating to the COVID-19 outbreak (the existing declaration relates to unsheltered homelessness).  There will be no giant tent in Marion Square Park, no chemical toilets, no security to have to put in place.  The declaration will be effective immediately, and the mayor can say he has delivered.  For now.

 

Update:  Per the staff report just out, City of Salem Resolution 2020-18 prohibits “public gatherings” in “public spaces” and restricts public spaces to active pedestrian use.  “Public space” is defined to mean the Salem Civic Center, publicly-owned right-of-way, including sidewalks and landscape strips, and City parks.  “Public gathering” is defined to mean any assembly of two or more people remaining in the same area for ten minutes or more.  Violators may be arrested for trespass under SRC 95.550.

City of Salem Resolution 2020-18 also suspends the camping prohibition (SRC 95.720) in all unimproved areas in Wallace Marine and Cascade Gateway parks.  Campsite may not have more than 10 people and must be separated by at least 50 feet from each other and any improved area within the park or abutting properties.

The staff report states that the Mid-Willamette Valley Community Action Agency's ARCHES Project "has recommended that groups camping on City sidewalks be required to disburse [sic] in order to protect the health of the individuals and help mitigate the spread of COVID-19"  However, that recommendation is not in the letter attached to the staff report from Jimmy Jones, MWVCAA's Director.  The letter states only that, "In this current public health crisis, the community should avoid large concentrations of the homeless population where they cannot hope to practice good hygiene."

See also, Woodworth, W. "City Council calls emergency meeting for coronavirus response."  (17 March 2020, Statesman Journal,)

Emergency City Council Meeting, March 17, 2020

Update: Council unanimously adopted Resolution 2020-18.  Oral public comment was not allowed and no members of the public attended.  Councilors Andersen, Ausec, Lewis and Kaser were on the phone.  As the ever astute Councilor Andersen observed, "It kinda has the practical effect of enacting the sit-lie ordinance."  The Resolution is effective through April 28, 2020.

Andersen's motion to amend Sections 5(b) to allow gatherings of 2-3 failed to pass after a rambling discussion that continued at length if not ad nauseum, before the Mayor finally called for the vote on the main motion.  In answer to a question from Councilor Leung, City Manager Steve Powers clarified that the City does not intend to provide toilets or garbage service at the parks beyond what already exists, but does plan to monitor campsites for compliance the resolution (10 per camp, camps 50' apart).  Powers also said the City intends to move forward with the establishment of permanent restrooms downtown.  

Help Salem, Respond to Census2020

Graph courtesy Journalist's Resource

The graph below is interactive (hold cursor over an area to see which program and the dollar amount it represents).

To put overall spending in perspective, the graph at left highlights the Continuum of Care Program (federal homeless assistance funds).

The COVID-19 outbreak has reinforced the importance of federal assistance.  Please do your part and respond to Census2020.

News from the Continuum

By Sarah Owens and Michael Livingston

After almost 3 years The ARCHES Project will soon be restoring hygiene and meal services  

Two years and nine months after the Mid-Willamette Community Action Agency (MWVCAA) closed the doors on The ARCHES Project day shelter on Madison Street (June 2017), visitors to the new day shelter at 615 Commercial Street NE will again have access to hygiene and kitchen facilities. 

Since the day shelter opened in July 2018 -- sans hygiene and kitchen facilities -- it's had more than 800 unique visitors.  According to a February report, most visitors were homeless (82%) white (81%) men (61%).  They came to check their mail and messages, and perhaps pick up a sack lunch or some pet food or a haircut voucher.  If it was a mobile shower day, they might have had a shower.  Most stayed an hour or two only.

Maximum day shelter occupancy during this time has been roughly equal to the average number of visits per day (around 100), but actual capacity was half that, partly due to visitors resting on the floor and partly due to high stress levels.  The renovations are expected to increase maximum occupancy by about 10%.

In other MWVCAA news, Jon Weiner replaced Jennifer Wheeler as chair of the Board of Directors,  the agency is considering hiring a Deputy Director, a position that's been vacant since Cyndi Leinassar jumped ship (see "News from the Continuum") in 2018, and the second and final balloon payment ($225K) on 615 Commercial Street NE has been made.  Hopefully, this means there will be  more homeless assistance dollars going toward homeless housing.  See "MWVCAA Pays Mortgage Debt with Hless Assist $$."  (21 February 2019.)

Finally, MWVCAA seems to have pulled its financial act together.  See, e.g., "ODE to MWVCAA: "Seriously Deficient."  (12 September 2018.)  Executive Director Jimmy Jones, who took over from Jon Reeves in 2018, recently reported to his board:

Over the past year we have stabilized and rebuilt the agency’s cash and credit position. We have also made considerable progress on internal controls, our policies and procedures, and our consistency in meeting the agency’s broader general responsibilities. We still have a long way to go on some fronts. The auditors are here this week for the annual single audit, and I spoke in depth with the senior partner of our auditing firm.  It usually takes agencies in our position three-to-four years to dig out of the kinds of holes that we found ourselves in during the spring of 2018. We’ve made good progress on some fronts.  This audit is unlikely to find any material weaknesses for the second audit in a row, which will get us out of “high risk,” where we’ve been parked for three years now, and return us to “low risk” status.

The agency's corrective actions in this area were much needed and long overdue.  There's never been so much money pouring into MWVCAA for housing programs (all run by The ARCHES Project), and it's important that it be spent on housing people, not managing homelessness for the sake of downtown businesses or buying old office buildings that take years and cost millions to renovate.

2019-2021 Housing Programs by Funding Source

What we don't know, of course, is what outcomes we are getting in exchange for such vast sums.  And, neither does the legislature, which may be why the Legislative Fiscal Office in the last session recommended the below "budget note" (a directive attached to SB 5512, which appropriated General Fund monies to Housing and Community Services Department [OHCS] for biennial expenses and for debt service):

The Housing and Community Services Department will report to the legislature by June of 2020 on options  to  implement  a  statewide  homeless  management  information system (HMIS) that enables clear outcome  tracking  for  homeless  individuals.  The report  will  focus on a system implementation that meets federal and state requirements, improves data driven decision making, and aligns with national best practice. Specific items to address include a recommendation on the capabilities of an optimal system, system governance, models from other states that enable data driven decisions,  the organization that is  best  positioned  to  administer  the  system,  and  an assessment of administrative workload options to fund administration.  

By adopting this note, the legislature and governor basically told OHCS the reports coming out of the state's Community Action Agencies have been crap.  Rightly or wrongly, they all blame the state's HMIS.  A February 7, 2020 memo from OHCS to the Housing Stability Council describes OHCS's response to the budget note.  *Spoiler Alert*  The situation is hopelessly complicated by politics and bureaucracy and the coded language of the memo will not inspire confidence.  Enter the Secretary of State:    

Oregon Secretary of State plans to audit statewide homeless services

"This audit will assess actions taken to address homelessness during the 2020 legislative session."  Uhhhhmmm, were there any? See Dake, L. "Oregon's 2020 Legislative Session Ends with Little to Show After Republican Walkout."  (5 March 2020, OPB.)

Speaker Kotek and Mayor Bennett at Senate Committee on Housing & Development, 3/3/20

Among the actions that were not taken, and therefore will not be audited, was the passage of HB 4001, which would have allowed the City to purchase and open a low-barrier shelter/nav center before next winter.  See "Council Sets Ambitious Council Policy Agenda." Appearing before the Senate Housing & Development Committee in support of the bill last week, Mayor Bennett was asked by Senator Wagner how the City planned to maintain shelter operations (costs) going forward.  Bennett replied, "We will be working closely with the Mid-Willamette Community Action Agency as well as our own funding to keep that going", adding that the City had learned its lesson when it "tried a sobering center without adequate agreement between the local participants."  Five will get you ten the City had the same sort of non-specific, handshake agreement on the low-barrier shelter/nav center.

Plan B?  Hope the winter of 2020/2021 is another mild one.   

Speaking to the Salem City Council on March 9, Mayor Bennett said "when" the Governor reconvened a special session he hoped Speaker Kotek's "homeless package" (including HB 4001) was at the "top of the agenda."  But Governor Brown had said three days earlier that she was reluctant convene a special session unless legislative leaders come up with a “functioning” plan.  Withycombe, C. "End of legislative session leaves pile of dead bills in its wake."  (9 March 2020, Salem Reporter.)

Returning to the subject of crap data, providers in Marion and Polk counties conducted another seven-day unsheltered Point-in-Time Homeless Count for 2020.  The first seven-day count was in 2019.  MWVCAA reports that 1,099 households were surveyed this year, mostly in Salem.  It had been hoped that this year's count would jive more closely with local HMIS data that indicate the area has about 1,800 unsheltered individuals.  "Recent camp sweeps, the camping ban in Salem and the outflow of a percentage of Salem’s homeless deeper into the woods made the count this year exceptionally difficult", a February report states.  The official numbers will be released later this year.

Rough 2020 Marion and Polk Counties' Unsheltered PIT Count Result: 1,099 Households Surveyed, courtesy MWVCAA

As COVID-19 runs its global course, Salem is washing its hands and preparing to erect a giant tent in Marion Square Park.  See "Sit-Lie Passes, But It Will Cost."  Salem responded to the Statesman Journal's story about a child being born on the sidewalk outside Rite Aid variously, with heavy emphasis on victim-blaming (the mother, not the child).  The headline asks, "How did a homeless mom who gave birth on a sidewalk get overlooked?", but the story makes no attempt to answer the question.  It just discusses all the services available to mothers, and claims the mother "fell through the cracks."  No one's fault.  Everything's in order.  Nothing to learn.          

Sit-Lie Passes, But It Will Cost

By Sarah Owens and Michael Livingston

July 15, 2019 KPTV reports sit-lie is back for Round 2 

Unable since 2017 to get enough votes to pass to sit-lie (Ordinance Bill 6-20), Mayor Bennett tonight succeeded on a 7-1 vote.  Councilor Leung voted against.  Councilor Ausec was absent.

Council punted its legislative duties to the City Manager in a manner some would consider unconstitutional through Section 2 (r) of the bill, which provides, "The City Manager is directed to ensure that the restrictions in this ordinance are not enforced until the opening of additional daytime space that is protected from the elements and includes access to toilets. This space must be open during all periods the restrictions in this ordinance are in effect (7:00 a.m. to 9:00 p.m., Monday through Sunday)."

So, based on the staff report, City Council has tacitly agreed to pay tens of thousands per month to enact sit lie.  See "Sit Lie Could Cost $30-$75K a Month."  

A recap of sit-lie's history:

September 25, 2017, the City Council formed a task force instead.  See "City Council to Consider Sit-Lie Bill" and "City Council Kills Sit-Lie After Public Hearing."

July 10, 2019, news broke that the City Council was bringing sit-lie back for Round 2.  Public outcry forced City to conduct a series of public forums instead.

November 18, 2019, City Council conducted a work session on the bill.

November 25, 2019, City Council added an emergency clause to the bill, took out the sit-lie and exclusion provisions, and conducted a first reading.

December 2, 2019, City Council delayed the effective date two weeks, conducted a second reading of what was now just a camping ban, and directed staff to compile a list of City property suitable for organized camping and comment on the feasibility of camping on each site.

December 10, 2019, City Council directed staff to work with the Mid-Willamette Community Action Agency to convert a couple of the warming shelters to a "duration model" (open every night) beginning 1/1/20 through 3/31/20. 

January 13, 2020, City Council directed staff to prepare an emergency declaration permitting 1) the Safe Sleep United program to expand capacity, 2) the City to use Pringle Hall for overnight shelter, and 3) a pilot car-camping program.

January 21, 2020, City Council adopted the emergency declaration without the Pringle Hall provision and directed staff to examine 1) lifting the camping ban in industrial areas and 2) the zoning issues  with certain potential low-barrier shelter sites.

January 21, 2020, City Council directed staff to examine lifting the camping ban everywhere except downtown, parks, and residential areas.

February 10, 2020, City Council directed staff to bring sit-lie back for Round 3.

February 24, 2020, City Council directed staff to 1) remove the exclusion provision and 2) return with a plan to provide toilets and shelter during the hours the sit-lie ban is in effect.

March 9, 2020, City Council conducted the first reading of Ordinance Bill 6-20.

See Woodworth, W. "Salem City Council: Sit-lie ordinance to move forward." (9 March 2020, Statesman Journal); Harrell, S. "City to erect 7,000-square foot covering in Marion Square Park after sit-lie ban goes into effect." (10 March 2020, Salem Reporter.).

Has Councilor Flipped on Organized Camping?

By Sarah Owens and Michael Livingston

Councilor Nordyke explaining to Maggie Vespa/KGW that she voted for a designated camping area

Last week, in a fairly brutal story about the City's floundering efforts to enforce "sidewalk behavior" standards, KGW's Maggie Vespa asked Councilor Nordyke whether the city should allow camping in some areas.  Nordyke responded:

I think that's a great question for the council and the mayor. I know where I stand on the issues. I am one vote of nine. And my vote was to create a designated camping area that was safe, secure, clean, dry with access to bathrooms, and it did not take effect.

Presumably, Councilor Nordye was referring to her second of a motion by Councilor Andersen at the December 10 City Council meeting "to direct staff to move forward with all possible speed, using contingency funds, to develop a designated overnight twelve hour model temporary-staffed camping area at Wallace Marine Park, the term of the camp will be effective until May 15, 2020, with a City Council review at its first meeting in April 20."  See the minutes of that meeting here.

After discussion, Councilor Hoy offered a substitute motion "to provide expanded low-barrier shelter operations on a nightly basis" which passed 7-1, with Councilor Nanke voting against, and Councilor Ausec absent. 

Councilor Nordyke on January 27, 2020

But, six weeks later, at the Council's January 27 meeting, Councilor Nordyke told fellow councilors:

"I liked the idea of organized camping because I believed that it would provide a safe and secure and a clean place for people to go. But when we talked to folks who work with the homeless every day, I'm not hearing them telling us to support organized camping, which leaves us with the possibility of unorganized camping...So with the limited money that we have, I want to use it towards strategies that are proven to work, that are cost-effective, evidence-based, and no expert has stood up here and told me that organized camping is evidence-based.  We understand it to be managing homelessness and that there are significant drawbacks to that."

Monday night, City Council again will be looking at a costly organized camping proposal -- in CANDO -- that's intended to secure a crucial fifth vote to enact sit-lie.  See "Sit-Lie Could Cost City $30K to $75K a Month"  Has Nordyke changed her mind (yet again) on organized camping?  She did not respond to our request for comment.  Might she provide that fifth vote, even though she's also stated she thinks sit-lie is unconstitutional and could embroil the City in costly litigation?  See "Power to Punish: why Salem police don't need more discretion." Does she no longer care about cost-effective, evidence-based strategies, or what experts think?  Does she not care what CANDO thinks?  (CANDO opposes City-sponsored organized camping for the reasons set out in CANDO Resolution 2020-1.)  Tune in tomorrow night, and find out. 

Sit-Lie Could Cost City $30K to $75K a Month

By Sarah Owens and Michael Livingston

Marion Square Park, just south of The ARCHES Project

Monday night, Council will decide just how much it's willing to pay to to secure a crucial fifth vote to enact sit-lie.  Right now, it's looking like the cost will be somewhere between about $30K and $75K per month.

Readers will recall that, at the last City Council meeting on February 24, Councilor Kaser, who last fall considered sit-lie a "non-starter",  moved to advance sit-lie to a first reading on March 9, without the provision that allows police to punish violations with exclusion from Crime Prevention Districts, and conditioned on the "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."

Council passed Kaser's motion 7 - 1.  Councilor Lewis, who voted no and was on the phone, wanted sit-lie to move forward without conditions.  Mayor Bennett and Councilor Nanke, who also wanted to move sit-lie forward, voted yes because they understood that Kaser's conditions were not binding.  Councilor Hoy also wanted sit-lie to move forward, but supported the removal of the exclusion provision (he had asked Council to remove the exclusion provision from the camping ban as well).  See "Power to Punish: why Salem police don't need more discretion."  Councilors Ausec, Leung and Nordyke went along -- even though they had opposed sit lie previously -- and Councilor Andersen was absent. 

The staff report for Monday's meeting lays out two strategies for meeting Kaser's condition that shelter be available during the hours the ban is effective.  On the low end, the City can erect a large tent ($5K) in Marion Square Park to warehouse those forced to move from the downtown streets and provide them toilets ($5K) and security ($19K).  On the high end, the City can expand the hours of The ARCHES Project to include evenings and weekends ($74K for the full monty, less for fewer hours).

It's doubtful that there will be five councilors willing to pay $30K/month for a tent warehouse, much less more for expanded hours at ARCHES.  So, the question for Monday night is going to be whether Kaser will stick to her condition that there be some form of shelter available during the hours of the ban, especially with Bennett, Nanke, Lewis and Hoy having previously signaled a readiness to pass sit-lie without the condition of shelter. The pressure on Kaser will be strong to drop it.  Or, Andersen or Nordyke might be willing to provide that fifth vote, who knows. 

It's worth noting that Salem police have consistently advised against allowing organized camping, both supervised and unsupervised.  If there's a difference here, it's that the large tent in Marion Square Park wouldn't be available 24/7.  The strategy would be: every evening, security guards/police close Marion Square Park and force anyone staying under the big tent to "move along", then every morning, police tell anyone sitting or lying on the sidewalks downtown there's a big tent in Marion Square Park where they can rest, but they can't do it on the sidewalks.

We asked Jimmy Jones whether the City had consulted him on the tent proposal, and how locating  the tent in Marion Square Park might affect ARCHES.  He replied by email:

Councilors consulted me on original tent plan [the short-lived plan to designate City-owned property for organized camping].  I thought that was dead.  Found out otherwise today as I assumed we were still working toward expansion.

It will affect us [The ARCHES Project].  I cannot hazard a guess as to how because I don’t know what the design of it will be.  Managed or unmanaged?  Restrooms? Food? What happens to possessions? Will people sleep in the park?   Lots of unknowns.  Day or night it will essentially be a city run camp and that is an undiscovered country of great unknowns.

The staff report is bare bones to say the least, suggesting staff don't really expect Council to go for either shelter option.  It just recommends Council conduct the first reading.  The draft ordinance includes an emergency clause, which would make it effective immediately after the second reading, likely to be March 23.  

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."