By Sarah Owens and Michael Livingston
Things must be looking up, because the Mayor's back to thinking about his Sit-Lie ordinance, the last bulwark against the homeless hordes taking over downtown as it begins to recover from the scourge of the C19 pandemic and the lock-down regulations that cleared the downtown streets almost a year ago, obviating the need to enforce his sidewalk behavior bans for the duration. See "Sit-Lie Meets COVID 19."
It's not just the vaccine rollout and sunny weather that's got Mayor Bennett thinking, however, but HB 3115, a bill that would "codify" the U.S. District Court for the District of Oregon's decision in Blake v. City of Grants Pass, which clarified for legal dimwits that the Eighth Amendment prohibiting cruel and unusual punishments applies to civil penalties as well as criminal, the operative words here being "punishments" and "penalties." See Harbarger, M. "Cities cannot fine homeless people for living outside, U.S. judge rules in Grants Pass case." (11 August 2020, Oregonian/ OregonLive.); Vanderhart, D. "Oregon could limit bans on homeless camping." (3 February 2021, OPB.)
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| 2/19/21 Meeting of the City of Salem Legislative Committee beginning at 00:58 |
First words out of Bennett's mouth at the last Leg Committee meeting, "Do we know if it [HB 3115] overturns our Sit-Lie?" let City staff and lobbyist know, if they didn't already, he would like to oppose the bill. (Note, the City doesn't actually have a Sit-Lie ordinance. Ordinance Bill 6-20 passed in March 2020 on the first reading 7-1, with Leung opposed and Ausec absent. See "Sit-Lie Passes, But it Will Cost" (9 March 2020). The City could ban sitting and lying during certain hours only if shelter and hygiene facilities were readily available. The City made plans to put a big tent and chemical toilets in Marion Square Park. Ordinance Bill 5-20 was due to become effective immediately on second reading, March 23, 2020, but 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. Don't believe it? Try to find it in the Salem Revised Code. Look for SRC § 95.715. It's not there. The camping ban is there (SRC § 95.720 Camping Ban), but not Sit-Lie.)
Back to Bennett's wanting to oppose HB 3115. According to the City's analysis, the bill "Provides that local law regulating sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to public must be objectively reasonable as to time, place and manner with regards to persons experiencing homelessness." (Problematic term for the City: "objectively reasonable.") The law would allow both facial and as-applied challenges, and attorney fees for the successful plaintiff. This is the sort of bill that makes city attorneys nervous.
Courtney Knox-Busch told the Committee that staff had two "primary concerns": one,"our
timeline is to get enough shelter space up...by 2023 and that timeline
is not going to shift", two, "liability." But, she said, nervously, the bill "represents a working compromise between the Oregon Law Center, League of Oregon Cities, and the Association of Oregon Counties."
It's an attempt on behalf of the Speaker to build a kind of compromise about how we would enforce it [Blake v. City of Grants Pass] moving forward...the City staff are in sort of an awkward position. This is a working compromise again with the League in the lead and having it be sponsored by Speaker Kotek, there's a lot of challenge here for us.
The lobbyist added his bit. "It's a Speaker's bill, so we
need to be careful." [Translation: the City is asking for a great deal of money this session, so it can't piss off Speaker Kotek.] "If we do have concerns, we need to get those in,
probably to the Senate President's Office" [Translation: make an end-run around Kotek].
Councilor Hoy asked if the City Attorney's Office had done an analysis of how the bill would affect the City's so-called behavior-regulating ordinances. Assistant city attorney Marc Weinstein offered this incisive legal analysis.
"One of the things the City Attorney's Office did very carefully was to try and make it [Sit-Lie] a civil regulation as opposed to a criminal regulation. The first time we saw a court within the Ninth Circuit really expand this into non-criminal legislation was the Grants Pass case, where the district court judge out of Eugene said that even though it wasn't a criminal, that it was limited to civil PENALTIES, they brought the Eighth Amendment [prohibiting cruel and unusual PUNISHMENTS] analysis to that and said that it still violated the Eighth Amendment. That wasn't appealed and so that remained an open issue. This [HB 3115] is going to...statutorily expand those [Eighth Amendment] protections -- the time place and manner restrictions (that had historically applied under criminal regulations) to civil regulations -- so there will need to be some retooling I believe. This is a conversation that I need to have with the City Attorney [Dan Atchison], but I believe that there will be needing to be at least an analysis and possibly some retooling of our sit-lie ordinance." [Emphasis added.]
In a nutshell, Weinstein believes HB 3115 proposes to provide state law protections against unreasonable financial penalties
that the Eighth Amendment does not require, on the grounds that a civil penalty isn't a punishment because it's only money. The bill is, he and the Mayor believe, a bad bill for the City which would prefer to press the homeless as hard as they legally and practicably can. They would normally want to oppose the bill, but they have to do so sneakily, so Speaker Kotek doesn't find out and get nasty about all the homeless assistance funds the City's asking for. The Leg Committee meets next on Friday, March 5, 2021 at 11a by Zoom.
Bennett and Weinstein should read this Leah Sottile (Bundyville) piece about Albany's experience, written for High Country News. Sottile, L. "Did James Fuller Plymell III need to die?" (3 March 2021, Oregonian/OregonLive.) Well, really, everyone should read it.
3/5/21 Update: HB 3115 was discussed again during today's meeting of the Leg Committee (beginning at 00:31:15) along with HB 2367, establishing an "Oregon Right to Rest Act" and SB 410, requiring state agencies to develop and implement policies to ensure humane treatment of homeless individuals. By the end of the meeting, the Committee had agreed it would "watch" HB 3115 and HB 2367, and oppose SB 410.
During the discussion, Bennett again asked Weinstein to tell him what HB 3115 meant for the Liberty Street sidewalk outside Rite Aid Weinstein told the Committee that the City would not be able to have a City-wide ban on camping (as SRC § 95.720 does) (he said more than that, but that was his only useful advice). Bennett said the City passed Sit-Lie "because we had such a God-awful mess down there -- if you haven't been down there lately, it's building again", and asked Weinstein, "Can we regulate that by offering alternative sites or not?" What was the "quality of the site" needed? "How do we get them off our downtown streets?", Bennett wanted to know, but he didn't wait for answers, he just ranted.
"Does it [the alternative] have to be comparable or better than they were in?" "Can we say, hey, we've got a better space for you and force them to move?" "What we're starting to get down to is a resistant population that doesn't want to move anywhere else, even if it's better." "One thing I'd really like to know Marc, at some point, take a look at our Sit-Lie ordinance [which is still a bill that's just passed the first reading] and its impact, and whether or not it would work under this." "What would we have to do to make it work?" "We've got 30 people living down there on Liberty Street. We want them outta there. Can we say, 'Well we opened up the Pavillion at the State Fairgrounds, you're going to have to go there, at least during the period that it's open' and that that would be accepted as a reasonable alternative? What do we need to look for in order to keep our downtown streets from looking like Liberty Street, which is a dump right now."
When Councilor Hoy commented, "If it [the Pavilion] weren't full, that might be reasonable, but..." Bennett interrupted saying "The first night it wasn't full. We could have demanded they move. I think we would have had a whole bunch of people say, 'Nah, we're going to go over here and live.' The question is, do we have any coercive power to aim them toward an even better location?"
A halfway decent City attorney at some point during Bennett's rant might have explained to him that homeless people have constitutional rights just like everyone else, and that regardless whether or not HB 3115 passes, the City must adjust its enforcement actions based on the U.S. District Court for the District of Oregon's decision in Blake v. City of Grants Pass. But, of course Bennett wasn't interested, everyone knew it and indulged his ranting, and certainly no one challenged his coarse and inhumane language or his hijacking the Leg Committee meeting to talk about what "we can do about Liberty Street." Councilor Andersen just sniggered when Bennett said sarcastically, "It does sound like we
can keep our Sit-Lie in place and continue our current policy of chasing
them around town until 2023." Ha ha. "Our current policy of chasing them around town." Ha ha ha.
But for the fact that HB 3115 is Kotek's bill, the Committee probably would have opposed it just to keep Bennett quiet. Bennett said he did not care that it was Kotek's bill ("You know what? So? There's one vote.") or that the League of Oregon Cities was not opposing the bill, or that it was a compromise approach to implementing the federal court's decision in Blake v. City of Grants Pass.
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