Sit-Lie 2017, 2019 and 202?

By Sarah Owens and Michael Livingston

City Council consideration of Ordinance Bill 22-17 September 25, 2017

Council Rejects Sit-Lie in 2017

In 2017, Chief Moore told the Council that a great deal of thought has gone into the ordinance, including thinking about everything said during public comments.  He said that the ordinance doesn't criminalize  homelessness, that homeless people have addiction and mental health issues and Salem Police officers are maximally empathetic and compassionate and help people access services and get off the streets.  He said business owners deserve equal empathy and to have this "tool" (the ordinance).  He said homeless people are feared, and perception is reality.  He said the basic purpose of the ordinance is to provide education and access to services.  He also said that, if an individual refuses services, s/he can be excluded from a crime prevention district.
 
Mayor Bennett asked what the police contact will look like.  Moore said that officers will make contacts just as they do now, letting individuals know their behavior is not acceptable "or in many cases illegal", and that they need to move on.  Bennett got the Chief to suggest that there are plenty of places for people to go.

A motion was made by Councilor McCoid, seconded by Councilor Nanke to schedule a public hearing at a future meeting to receive public testimony.  (Councilor Lewis was absent.)

Councilor Nanke said that the ordinance will protect children, and compared it to concealed-carry weaponry, zoning and code compliance laws.

Councilor Andersen noted that existing law prohibits camping in parks and allows exclusion from crime prevention districts for various offenses.  He complimented the City Attorney on the ordinance and said it was still likely to be challenged.  He and Councilor Kaser remarked on the lack of public support for the bill, including from the business sector.

Councilor Andersen offered a substitute motion, seconded by Councilor Hoy, that the Mayor establish a task force of Council, staff, social service agencies, downtown community and the greater Salem community to study the issue of homelessness in the downtown and north Salem crime prevention districts as defined in the proposed statute. 

Chief Moore, Mayor Bennett and Councilor Kaser all agreed with Councilor Anderson that "the real problem here is the possessions that people take with them" and that the optimal means for addressing that would be to provide storage facilities (which CANDO recommended the City develop back in 2017).

Councilor Kaser commented that the complaints she receives do not concern sitting and lying down on the sidewalk, but behaviors, some of which are illegal (crimes, offenses).  She also observed that whether someone's collection of personal property is "unsightly" is highly subjective.

Councilor Cook expressed concern that the ordinance targets people experiencing homelessness, and "doesn't get at root causes."

Councilor Hoy observed that, if the City Council makes sitting, lying down, camping and "abandoning" property on sidewalks crimes (offenses, infractions), then ultimately, people will be arrested, and then he said all efforts should be focused on addressing the needs of the homeless, which the ordinance does not do.  

The original motion to schedule a public hearing at a future meeting to receive public testimony was rejected by a unanimous vote.

Councilor Andersen's motion, seconded by Councilor Kaser, to reject Ordinance Bill No. 22-17 and  establish a Mayor's task force of Council, staff, social service agencies, the downtown community and the greater Salem community to study the issue of homelessness in the downtown and north Salem crime prevention districts and  passed.  Only Nanke voted no. 

City Council consideration of Ordinance Bill 10-19 November 25, 2019

Council Rejects Sit-Lie in 2019

In 2019, there were three public forums and a work session prior to the first reading of Ordinance Bill 2019.  Councilors McCoid and Cook had been replaced by Leung and Nordyke.  Councilor Lewis was present.

City Manager Steve Powers and Salem Police Chief Jerry Moore made opening remarks.  Both emphasized complaints as the reason for the ordinance.  "The City and community can do better than offering sidewalks as a place to live", Powers read from a prepared statement that included a list of various housing and social services programs that the City supports.  Moore told the Council, "The reason for this ordinance is simple.  It takes two to tango."  He said the people police "contact on a routine basis are not interested in services, they're not interested in changing their lifestyle, they're engaged in behaviors we would not consider acceptable anywhere else."  He said the ordinance would give police "a tool perhaps to encourage them to change their lifestyle."  About enforcement he said, "just because the ordinance exists, doesn't mean it will always be enforced."

Mayor Bennett asked Moore what's changed since the ordinance bill was rejected in 2017.  Moore referred again to continued complaints, and said, "It was the will of a whole bunch of people that this ordinance come back."  Councilor Lewis asked what "the disconnect" was between what Moore was saying about enforcement, and the public perception that enforcement would be "universal."  Moore said he couldn't answer that.

Councilor Leung asked Moore about concerns that had been brought to her about a particular officer who reportedly went out of his way to find people experiencing homelessness and "bully them."  Moore responded that the Department has received very few complaints of police misconduct and Powers advised her to refer complaints to the City's police review board.  Leung observed that people who've been "attacked by this officer are not going to [make formal] report[s]."  She asked why would they think the City would listen to them when there's this officer out there who's targeting them?

After gaining the floor, Councilor Hoy, who is Council President, indicated he would propose a series of revisions for Council's consideration.

He spoke in support of removing the sit-lie provisions, saying that it was difficult to see how it could be enforced "with sufficient compassion."  However, he voted against removal, along with Councilors Nanke, Lewis and Bennett.      

Councilor Kaser supported removing the sit-lie provisions for the same reasons she gave in 2017 -- they won't address the complaints of downtown businesses.  Councilor Andersen was concerned the City would be creating a "status crime" and wouldn't be effective.  Councilor Nordyke was also concerned about constitutionality and the prospect of litigation.  She said she believed sit-lie would only push people away from services into residential neighborhoods, "not make them disappear", and she would rather put City resources toward strategies "that actually work."  Councilor Ausec, concurred, noting that the Downtown Homeless Solutions Task Force didn't think sit-lie would be an effective way to address the complaints, nor did he.   

Nanke did not support removing the sit-lie provisions, saying "the people that are of concern are not interested in being in [] housing", the sit-lie portion is "not going to be used that frequently", and "it's not pushing people."  Bennett did not support removing the sit-lie provisions because he had "never heard this police chief come to us asking for tools they didn't need."

The question I have is if [the Chief] comes back a third time because this is not dealing with the problem and we continue to have the kind of behavioral issues that he's talking about, should we look at it again, because I've just got this feeling it's coming back.

Bennett continued, saying he was "amazed" that "there's so much willingness to say 'no'" and that anyone would suggest anyone on the Salem police force might have "some sort of inappropriate relationship with the public they serve", because he himself had never heard such a complaint.  "I don't quite get it, I gotta tell you...maybe it's just I've been around too long...I just don't get it", he said.  

Lewis also refused to support removing the sit-lie provisions, saying they addressed the most common complaints that the City's been getting for the last three to five years.  He said the idea that the City would use the ordinance to "sweep out" everyone who's been sitting and lying on the downtown streets was "ridiculous."  "We've been told repeatedly this is a tool to allow the police to deal with behavioral issues, and it's not meant to do anything but that", he said.          

Councilor Leung talked a bit about her experience of homelessness due to domestic violence and exhorted the Council when voting to consider the impact of the ordinance on people who were already scared and traumatized.  Her remarks received brief applause from the audience.  Bennett then asked Council, "Do you want to vote?  Or would you like to hear more clapping?"  The Council then voted to remove sit-lie portion of the bill on a five-four vote.

Hoy then proposed to "remove the exclusion zone coupling with the ordinance."  He said the primary reason he had "worked to kill this thing the first time" was his concern about the "streets to jail pipeline."  He said he felt like making violations of the ordinance excludable offenses "facilitates that pipeline, and I don't think we need it."  He said he was also concerned about the uneven application -- greater penalties, depending on where the offense is committed.  "I don't think where you choose to survive" should determine the severity of the penalty, he said. 

Lewis then moved staff recommendation (the original ordinance bill) as a substitute motion.  Bennett supported the motion saying,

Absolutely nothing I've heard yet relating to homelessness, and what we're doing, and actually dealing with the homeless issues.  It deals with behavioral issues that require, and have been prompted to bring in police action, and they need a tool...Most of the testimony I've heard this evening was absolutely unrelated to this and dealt with questions of who are they and where did they come from in the homeless community and I'm just not buying that that's what this is about.  This is about people in the homeless community behaving badly, and interfering with the normal activity in our residential-business district downtown and Ward 1.  I think it's disproportionately affected, and we really have an obligation to deal with it.

    
Bennett, Nanke and Lewis voted to approve the bill as originally drafted.  Council then voted on the revised bill (sans sit-lie and exclusion provisions), which Bennett characterized as "close to, but better than, nothing."  Only Lewis voted against the revised bill.  The ordinance is to take effect after the second reading set for December 2.

In addition to making the revisions directed by Council, the City Attorney revised the ordinance  findings, "clarified" the definition of “public sidewalk” to include the landscape or parking strip, added that violations constitute a “public nuisance” under SRC 50.800, "clarified" that police have discretion when determining whether to issue an exclusion notice for listed offenses, and may issue variances when a notice is issued.  See City Manager Powers' staff report.  (Note: the City Attorney's last two "clarifications" were apparently needed to conform the ordinance to police practice.  However, allowing police discretion whether to impose an additional penalty for a violation inside a Crime Prevention District is, as a matter of law, arbitrary, and therefore a violation of constitutional due process requirements.  The Council should, therefore, not adopt the City Attorney's proposed revision substituting "may for "shall" in Section 95.770.  See Engrossed Bill at page 11.) 

Mayor Bennett's "just got this feeling it's coming back"

Sit-Lie Targets People with Disabilities

By Sarah Owens and Michael Livingston

If the City Council enacts Ordinance Bill 10-19 with a sit-lie provision -- with or without the civil exclusion penalty --  the City had better be prepared for a challenge from Disability Rights Oregon, based on what was said during the November 18 work session.

First, DRO is going to cite the Oregon law that prohibits cities from adopting any law that imposes civil penalties of any kind for "behavior that includes as one of its elements...being found in specified places under the influence of alcohol, cannabis or controlled substances."  ORS 430.402.

DRO will then allege something along the lines of:  Salem's "sidewalk behavior ordinance" is preempted by ORS 430.402, targets a protected class (people with disabilities) and is overbroad and unconstitutional on its face because it contains no exceptions for people with substance use or mental health disorders.

And DRO will cite as evidence these remarks by the Salem Police Chief (all emphasis added): 

"We don't have the ability to address, uhm, people that are laying on the ground, and uh, scattered with property, perhaps passed out, perhaps drunk, we don't have a drunk-in-public ordinance in the state, and so it deals more with conduct issues that aren't necessarily criminal behavior."

"[P]eople laying on the sidewalk drunk, maybe drug-induced, maybe emotionally disturbed, and the fact that they're allowed to stay there and act the way they do is concerning to many people."

"Now we can contact someone anytime, but they can tell us 'I don't want to talk to you, go away.'   If we had an ordinance we would have a reason to contact someone, and the first thing we would do is to try and get them associated with some social services or some help that might stop that cycle [of arrests]...our officers hooking people up with services that might be of benefit to them, whether it's housing or alcohol or drug treatment."

"[T]he people we deal with downtown have been offered services over and over and over again, and they reject the opportunity to take advantage of them and that's why they are so difficult to deal with."

"[They are] "service resistant" and
don't want to follow rules and regulations.  They don't want to go places where they can't do drugs or drink or whatever, and I think those are the people we routinely deal with, who for three or four years we've gotten complaints about because we have no tools to change their behavior...and people are just tired of it.  Those are the complaints and the calls that we get all the time." 

DRO will no doubt also cite the horrid "Persons who" findings in Section 2 of the ordinance, and assert that the ordinance's exception for people with certain "physical" disabilities shows the omission of any exception for people with substance use or mental health disorders was deliberate and intended.

Anyone who thinks to rely on assurances from Salem's legal advisors that Ordinance Bill 10-19 is constitutional should remember, these are the people who can't recognize conflicts of interest, who said parking strips were City parks for purposes of trespassing campers from them, that adjacent property owners had the right to trespass campers from parking strips, that four was a majority of eight, that the City was not required to provide arrest records because a juvenile was involved, and that a City task force that included four City Councilors was not a public body.

Sit-lie is a bad law now, and forever.  It cannot be made right, and the City will lose if it tries to defend it.

Work Session Dissipates Sit-Lie Support

By Sarah Owens and Michael Livingston

November 18 Work Session, from left: Councilors Ausec, Hoy, Nordyke, Lewis, Andersen and Kaser

Support for the sit-lie portion of Ordinance Bill 10-19 dwindled to a minority of three -- Mayor Bennett, Councilor Nanke and Councilor Lewis -- following a work session that challenged City staff and Salem Police Chief Moore to explain why the City should ban sitting and lying on the sidewalks.  Councilor Hoy indicated he can no longer support the sit-lie prohibition unless the civil exclusion penalty is removed.

Bennett opened the November 18 work session saying,"This is an opportunity to talk among ourselves, kinda see where we're headed on the sit-lie ordinance, this is an opportunity to take a look at this and figure out if you want to make any changes."  He called on Urban Development Director Kristin Retherford for remarks.

Retherford related a brief history sit-lie in Salem, beginning with the failed passage in 2017, the appointment of the Downtown Homeless Solutions Task Force (DHSTF), the implementation of its recommendations, the continued complaints from downtown businesses and the redrafting in 2019, and ending with the forums.

The stated goal of the work session, Retherford said, was to discuss the ordinance and provide direction to staff about any revisions, e.g., the four listed in the staff report.    

Hoy asked the first question.  He wanted to know the reason for the lack of progress implementing the DHSTF recommendations.  Retherford blamed the fact that both Union Gospel Mission and the Mid-Willamette Community Action Agency, with whom the City has chosen to partner for the purpose of  implementation, had major construction projects.  Hoy asked when The ARCHES Project's ten personal property storage units would come on line.  Retherford replied "early spring."

Councilor Andersen asked how staff could conclude the DHSTF recommendations were ineffective and that sit-lie was necessary, given that the recommendations had not been fully implemented?  Retherford explained that the DHSTF recommendations don't address "behavioral issues."  Andersen observed that City code currently addresses a number of relevant behavioral issues, for example, disorderly conduct, and asked what behavior did sit-lie address?  Moore replied that sit-lie addresses camping, erecting campsites and structures and abandoned property. 

"It's all in the eye of the beholder."

Continuing his list, Moore added, "some of the unsightly issues that you see, with people that have carts of, uhm, property that could be two to ten in a row, just abandoned property.  [The ordinance] has to do with litter, garbage and some of those things that are left there.  And of course the sit-lie would probably have more to do with, uh, behavior and uhm, the things that may, uhm, uh, have an impact on the livability more of the downtown than anything else."

Moore paused and said, "You know, being homeless is not a crime, and the sit-lie and anything that we put together isn't going to solve homelessness.  But since we first introduced this [in 2017], we've continued to have concerns about behavior downtown.  It could be anything from disturbances and trespassing and criminal mischief, and you're right, we have ordinances that address those things. But we don't have the ability to address, uhm, people that are laying on the ground, and uh, scattered with property, perhaps passed out, perhaps drunk, we don't have a drunk-in-public ordinance in the state, and so it deals more with conduct issues that aren't necessarily criminal behavior in all cases.  Some it is criminal behavior, but we have to be present and able to see it before we can do anything to enforce it."

Bench at Court and Commercial Streets

Nanke arrived late, around the time Andersen asked staff to rank the relative seriousness of the three problems the ordinance bill is intended to address-- camping, abandoned property and sit-lie.  Retherford indicated that "the behavior piece and the property piece" together were the most serious, and gave as an example the City bench on the corner of Court and Commercial  Streets which someone is using for storage, despite requests from the City to move the belongings somewhere else.

Andersen asked if the complaints were not  about "visual issues" or "what it looks like downtown"?  Retherford replied, "Looks like and smells like."

Moore said "It's all in the eye of the beholder...If you drive down Commercial Street, you think it's camping.  If you happen to own a business, or go downtown shopping, you probably think it's people laying on the sidewalk drunk, maybe drug-induced, maybe emotionally disturbed, and the fact that they're allowed to stay there and act the way the do is concerning to many people, so ranking them is really difficult.  I think it's all dependent on what your view of the world is and where you're coming from."

"Can the City prohibit public drunkenness?"

Councilor Kaser asked if the City could prohibit public drunkenness, to which City Attorney Atchison answered no, such laws had been deemed unconstitutional.  The Mayor asked about laws prohibiting vagrancy and loitering.  Atchison informed him that Salem's vagrancy law (SRC 95.560 -- see here) had been repealed, and its prohibitions on loitering applied only to minors (SRC 95.390 and 96.140) (but see SRC 95.020, prohibiting "any person" from loitering in, on, around or about any stairway, aisle, hallway or any public place of business while drinking alcohol).  Councilor Kaser asked if there were any laws prohibiting camping on parking strips and sidewalks.  Moore said no.

Councilor Nordyke asked about people who'd been repeatedly arrested, wanting to know how effective that was.  Moore said it wasn't, but the ordinance would "give an officer an opportunity to contact someone in the downtown area."

Now we can contact someone anytime, but they can tell us 'I don't want to talk to you, go away.'  If we had an ordinance we would have a reason to contact someone, and the first thing we would do is to try and get them associated with some social services or some help that might stop that cycle [of arrests]...our officers hooking people up with services that might be of benefit to them, whether it's housing or alcohol or drug treatment, I think that's where we can make the difference, and I think this ordinance helps us do that. 

Nordyke observed that there was nothing stopping providers and volunteers from offering services, and Moore agreed, adding that "the people we deal with downtown have been offered services over and over and over again, and they reject the opportunity to take advantage of them and that's why they are so difficult to deal with. 

Complaints concern activity that's "already illegal."

Nordyke asked Retherford whether the Downtown Clean Team was doing what it needs to do, given the volume of complaints?  Retherford said the Team is staffed to funding capacity and doesn't clean private property (like doorway alcoves) or in the alleys, which are the subject of a lot of the complaints.  Nordyke asked about implementing a CAHOOTS model crisis assistance team.  Retherford said the Good Neighbor Partnership was looking at it, but, as with the sobering center, funding was an issue.

Hoy said he was concerned about "uneven enforcement" and there being additional penalties for offenses committed inside one of the Crime Prevention Districts.  Moore agreed the difference was "unfortunate", but "if you're going to keep anything, an exclusion zone in the downtown area would probably be most effective because that's where ARCHES and the Gospel Mission is and the places that, for lack of a better term, draw more people.  If you were to uncouple it, we would not be able to arrest for trespass."

Kaser asked whether enforcement of the camping ban and abandoned property provisions would be complaint driven?  Moore said no, enforcement of the camping ban would be immediate (consistent with the notice provisions).

Andersen asked if there was "a certain percentage of people causing the problems."  Moore responded by describing three groups of "homeless", those the police never have contact with, those who are "maybe passing through town and they take advantage of services...and move on," and those who are "service resistant" and 

don't want to follow rules and regulations.  They don't want to go places where they can't do drugs or drink or whatever, and I think those are the people we routinely deal with, who for three or four years we've gotten complaints about because we have no tools to change their behavior...and people are just tired of it.  Those are the complaints and the calls that we get all the time. 

Andersen asked if was true that neither the Downtown Homeless Solutions Task Force nor the Good Neighbor Partnership had endorsed sit-lie.  Retherford said that's correct.  Andersen asked Atchison about sit-lie's constitutionality.  Atchison assured him it was.

Hoy said that local non-profits were making plans to implement a CAHOOTS model as a pilot.

Nordyke asked about "homelessness drifting into the neighborhoods" and parks as they are pushed away from downtown services.  Moore said the "ordinance wasn't designed to push anyone out of anywhere" but to "better control behavior."  He said camping activity in parks had "certainly increased over the years and it may just be a sign of the times.  There are lots of homeless people."

Bennett asked for suggestions for staff to have ready for the first reading on November 25.  Hoy said his goal was to come up with the "least burdensome ordinance that could still impact livability in the City," and he would support a proposal to "decouple" the civil exclusion provisions and change the hours from 7a to 7p.  Andersen said his main concern was with the sit-lie portion, and he would like the option to have it removed.  He also wanted to include a June 2020 sunset provision.  Kaser said she would support removing the sit-lie portion and would consider a sunset provision.  Lewis said he was concerned about "diluting the ordinance" but didn't have any suggestions on how to revise the bill.  Nordyke said she didn't think sit-lie would address the vast majority of complaints she's hearing, which involve activity that's "already illegal" and "not improved by sit-lie."  She had no suggestions for bill revisions.  Councilors Ausec and Nanke, who had not spoken at all during the work session, also had no suggestions.

Kaser asked how soon would the ordinance take effect.  Atchison said 30 days after second reading, "so, in December."

Oregon Law Center Weighs in on SIt-Lie

 

By Sarah Owens and Michael Livingston

Oregon Law Center Managing Attorney Jorge Lara today informed the City Council that there are problems with Sit-Lie Jr.

Note: the letter refers to "newly created crime prevention districts", however both of Salem's Crime Prevention Districts were created many years ago to allow police to exclude individuals committing low-level, "quality of life" offenses inside the districts from them for 30-day periods.  Downtown Enforcement Team members David Smith and Zach Merritt told CANDO last night that "uncoupling" violations of the proposed ordinance from the two Crime Prevention Districts (as Councilor Hoy has proposed) would remove the "teeth" needed to ensure compliance with the ordinance.  "Tickets (citations)", Owens said, "don't mean anything [to the target population]."  They can, however, create barriers to housing and employment down the road.

Staff Restrict Sit-Lie Options

By Sarah Owens and Michael Livingston

Councilor Andersen says he remains undecided on the bill  

Staff have presented City Council with four options for revising proposed Ordinance Bill 10-19 (aka Sit-Lie, Jr. or Sidewalk Behavior Ordinance) on Monday night.  Council could order one or none of all of them, or they could offer their own.

Notably missing from staff offerings is the option to remove altogether the prohibitions on sitting and lying, which option Councilor Kaser has said she favors.  See Brynelson, T. "Salem councilors consider easing the restrictions proposed to govern sitting, lying on public property" (November 6, 2019, Salem Reporter.); and Brynelson, T. "Salem City Council to discuss 'sit-lie' ordinance in work session Monday."  (November 13, 2019, Salem Reporter.)

The staff options offered for Council's consideration are:

1) Revise camping restrictions to address repeat violations.  Under current City Code, sidewalk camping is not prohibited unless the site becomes a public nuisance, or campers intentionally interfere with a pedestrian. Under Ordinance Bill 10-19, if there's no one present in a sidewalk camp, or if the camper refuses to remove the camp when cited, police have to post the camp for 24 hours prior to removal (see Salem Police Department directive 9.12). The concern is that a cited camper might simply decamp down the block, and thereby evade the 24-hour notice.  Staff propose to revise the ordinance bill to allow police to issue separate citations for each infraction ($250 each).  (Seems like this is merely a clarification.)

2) "Uncouple" violations of the proposed ordinance from the two civil exclusion zones (Downtown Crime Prevention District and North Salem Crime Prevention District) by removing the proposed renumbering and amendments to Salem Revised Code 95.735 and 95.736.  (Councilor Hoy's preferred option.)

3) Change hours of enforcement from 7:00 a.m. to 9:00 p.m. to 7:00 a.m. to 7:00 p.m. to "align the ordinance with the hours of existing day centers."  (A dubious claim.)

4) Sunset June 1, 2020 unless Council votes to continue the ordinance for an additional period based on review of crime stats (number of citations issued, individuals cited, individuals issued civil exclusion orders, individuals cited for violation of the exclusion order.) (Should be uncontroversial.)

See the full staff report here.

CANDO issued a resolution opposing Ordinance Bill 10-19 in September.  See here.  Wednesday,  November 13, SCAN authorized a letter to the Mayor and Council, opposing Ordinance Bill 10-10.  SCAN is in Councilor Andersen's ward.

Sit-Lie: Mixed Messaging, Expectations and Trust

By Sarah Owens and Michael Livingston

Salem Connection Vol 10 Issue 31

The City's mixed messaging on sit-lie is causing everyone a good deal of confusion.

Monday, the Mayor announced that there would be a work session at 6p Monday, November 18 to try to get everyone on the same page.  See Brynelson, T. "Salem City Council to discuss 'sit-lie' ordinance in work session Monday."  (November 13, 2019, Salem Reporter.)

City propaganda has claimed sit-lie will "address citywide impacts of behaviors in the public right-of-way" and "ensure all of Salem remains welcoming to all visitors by keeping sidewalks and public spaces clean."  City staff have told the public that this means uniform and consistent enforcement throughout the City.

However, recent reports are that at least two City Councilors who support sit-lie are doing so because Chief Moore has said sit-lie is needed for about a dozen people whose behavior is causing problems -- presumably downtown -- and police lack the means to address it, and that, if sit-lie were to pass as-is, it would be applied with compassion and very selectively and rarely.

So, now people are asking, "Which is true?  Will enforcement be uniform citywide?  Or will it be selective and rare?"

The reports on what the Council's been told echo what Chief Moore told us when we met with him several months ago -- i.e.,  that he believes the vast majority will simply comply with the new law, either on their own, or when warned, and there won't be much need for enforcement (which we take to mean not many citations will need to be issued).  As we didn't recall the Chief saying sit-lie was needed to deal with about a dozen people downtown, we asked him about the reports.  He emailed in reply that the reports were "pretty much what I have stated, both publicly and privately, and to you and Michael, for about three years."

So, there we have it:  sit-lie is intended to address the behavior of 12 individuals, and enforcement will be selective and rare.

Still curious about the dozen behavior problems, we asked Jimmy Jones whether, at any point, the City or Police Department had come to the Mid-Willamette Valley Community Action Agency (MWVCAA) and said, "Look, we've got a dozen or so people downtown who're causing problems we can't control. Here are their names.  Can you target resources toward them and maybe get them stably housed so we don't have to find a reason to put them in jail?"  He said no, he'd not been asked. 

Police have no-showed all five Downtown Good Neighbor Partnership meetings held so far this year.

Police know MWVCAA/The ARCHES Project does all the screening for housing programs (including Salem Housing Authority's Homeless Rental Assistance Program), and police know how to ask for assistance for people living on the streets, so it's very odd that police haven't asked for assistance with this group of people.  Kinda makes you wonder who these people are that the police supposedly can't deal with.  Are they people with names?  Or, more likely, are they merely an estimate of how few will be cited under the ordinance? 

Salem's de facto homeless policy is "trust the police."  Councilors who support sit-lie believe that if Chief Moore says he needs this ordinance, then the City Council should just give it to him.  It doesn't matter what the ordinance says (which is why they haven't bothered to read it).  But what if Chief Moore is wrong?

What if having sit-lie on the books won't be enough to elicit compliance?  The City has revealed no plans to put up signs or otherwise educate the public in the event Council adopts sit-lie.  What if police have to warn/cite in order to gain compliance, as seems likely?  Is Chief Moore prepared to devote resources to that effort?  Other cities that adopted sit-lie laws initially issued numerous citations, gradually decreasing enforcement activity over time -- not because people had got the message, but because enforcement action wasn't having the desired effect.  See, e.g., here and here.

But, if compliance with sit-lie isn't widespread, it's not going to have the desired effect (i.e., result in a "Salem that's welcoming to all visitors by keeping sidewalks and public spaces clean"), and it's not going to reduce complaints from downtown businesses.    

And what if, heaven forfend, Chief Moore's cops are not all as caring and compassionate as he and his senior officers are?  And, let's say there is widespread, dispassionate, enforcement.  There's a substantial likelihood that sit-lie will cause even more people experiencing homelessness to avoid contact with police -- as happened in San Francisco.  Even now, in Salem, stories like this are not uncommon, we just don't hear about them:

My brother was on the way to work, and, as was his habit, he stopped at the Starbucks off of Salem Parkway (2505 Liberty Street, near Spin City Laundromat).  He and a Salem police officer ordered their drinks around the same time and were waiting to get them.  While they were waiting, the officer walked over to a disheveled man at a table quietly warming himself over a cup of coffee, with what appeared to be his belongings beside him.  The officer told the man he was not allowed to loiter and should move on.  My brother said something like, hey, he’s not doing anything, to which the officer responded by telling him to mind his own business.  My brother said that's what he's doing (motioning toward the man bent over his coffee), minding his own business.  The officer asked our friend would he rather the officer come over there and talk to him, to which my brother said something like sure you can talk to me, at which point he was called to get his drink. 

 
Trust between police and their communities is vital.  But trust doesn't mean being naive, or turning a blind eye when procedures aren't followed or discretion is abused.  Even with Chief Moore's reassurances, sit-lie has great potential for abuse, and very little on the up side, despite all the hype in City propaganda about keeping Salem clean and welcoming to all visitors.

Trust requires truthful, consistent messaging.  In 2018, Salem police officer David Smith told the Statesman Journal, "You can understand how frustrating it is for [people experiencing homelessness] when everybody is trying to help them one day, and then the next day everybody wants them to leave.  So to me, I think it's important that we be more consistent in our message."  See Hernandez, L. "Salem police on front line of growing homeless crisis, urge changes."  (June 14, 2018, Statesman Journal.) 

"Salem police...urge changes" in 2018

Maybe Chief Moore thinks he needs sit-lie, or maybe it's Mayor Bennett or City Manager Powers who think Chief Moore needs sit-lie.  We don't really know whose bad idea it is.

What we do know is that, 18 months ago, the Downtown Enforcement Team were not asking for sit-lie.  They were instead focused on a proven strategy -- building relationships.  And they  were asking for a safe place to take people who were intoxicated, for public storage for personal property, and for a 27/7 navigation center.  See Hernandez, L. "Salem police on front line of growing homeless crisis, urge changes."  (June 14, 2018, Statesman Journal.)  To date, the City Council has given the police none of those tools.  And its messaging is nothing close to consistent.

"Trust the police" is not much of a homeless policy, but when the City can't or won't work to give police  appropriate tools, tools they've said they need, and forces them to ask for rusty, unreliable substitutes like sit-lie, the City can hardly claim to be trusting the police.   

San-Francisco has more than 36 "quality of life" laws, including its own sit-lie, passed in 2013.  In 2019, however, the primary strategy of San Francisco police is to "routinely steer[] homeless people to shelters, navigation centers and health services."  The proverbial pendulum has swung away from enforcement tactics like sit-lie because experience has shown they are not effective.

The City Council should be finding ways to support proven strategies like building relationships, not enacting outdated, inhumane and ineffective laws because they apparently can't be bothered to cooperate with providers to address the problem behaviors of twelve individuals.

City Staff to Recommend Council Advance Sit-Lie to 2d Reading

By Sarah Owens and Michael Livingston

City Manager Steve Powers' draft staff report on proposed Ordinance Bill 10-19 (aka Sit-Lie, Jr.) (embedded below), which was obtained through a public records request, recommends that the City Council "conduct first reading...and advance to second reading for enactment." 



The staff recommendation is likely to encourage proponents of the bill, and discourage those who oppose it, many of whom are the target of the proposed ordinance bill, which is supposed to "clean up" public spaces, downtown in particular. 

The staff report purports to summarize the "public outreach and comments" given and received during the course of three City forums, but, in fact, it just summarizes the 43 written comments received at the last "open house" style forum.  Those comments would indicate that community opposition to the ordinance is roughly 3 to 2.  Opposition expressed at the first two forums was substantially higher.  See "City Fumbles Sit Lie Forum", "Sit-Lie Jr Loses at 2d Forum", "City Schedules Sit-Lie Jr Round 3" (for the cartoon version), and "Salem Talks About Sit-Lie: Forum Excerpts" (for a visual podcast of the voices heard at the forums).    

Comment at p. 53

The "for" comments summarized in the report indicate that proponents believe the ordinance will drive people experiencing homelessness out of downtown, thus putting an end to "odors, property damage, urination and defecation, panhandling, litter, and aggressive or threatening interactions."  (See the staff report at page 26.) 

The summary of "against" comments more or less reflects what was said at the first two forums.  (See the staff report at pages 26-27.)  Copies of the comments are attached to the  report, but not all are legible. 
 
Not much new in the rest of the staff report.  It perpetuates the line that police somehow need a "lawful reason" or "lawful opportunity" to contact "individuals in need of services."  (See the end of the summary section on page 2.)  And, it reflects staff's confusion about how the ordinance will be enforced inside Crime Prevention Districts (of which there are two in Salem, one downtown and one north of downtown).  (See the facts and findings section, beginning on page 2 (blue text = edits).) 

The report refers to "Exclusion Zones" and "exclusion waivers", but the ordinance uses the terms "Crime Prevention Districts" (CPDs) and "variances."  Readers are exhorted to examine the language of the ordinance itself and not to rely on the City's interpretations, which have been proven unreliable at times.  See, e.g., Brynelson, T.  "Citizens question legality of Salem council's appointment." (October 24, 2019, Salem Reporter.)

Violations

 

According to the language of the proposed ordinance, a person found sitting or lying on a City sidewalk in violation of the ordinance must first be told s/he is in violation.  The draft staff report states that the suspect will be "encouraged to take advantage of available resources", but there is nothing about that in the ordinance.  If the suspect doesn't move along within a reasonable time (15 to 20 minutes, per Deputy Chief Skip Miller), then police may take enforcement action by issuing a citation to appear in court.  Failure to appear in court at the appointed time can result in an arrest warrant. 

If the violation took place in one of Salem's two CPDs, an exclusion notice is required to be issued (see proposed section 95.830 at page 24 of the staff report).  An exclusion notice is an order to stay out of the CPD for 30 days.  City staff, including the City Attorney and police, said repeatedly at the forums that citations are issued outside a CPD, and "exclusion orders" are issued inside a CPD.  The edits to the draft staff report reflect there is disagreement, or confusion, among staff as to whether an exclusion notice is required when a violation is cited in a CPD.  However, both the proposed ordinance bill (proposed section 95.830 at page 24 of the staff report) and the existing ordinance (SRC Chapter 95.740) state that the person cited "shall be prohibited" from being inside the CPD.  Violations of an exclusion notice can result in immediate arrest for criminal trespass and exclusion for an additional 30 days.  (See proposed section 95.850 at page 22 of the staff report.)

A person who's issued an exclusion order may seek a "variance", which is formal, written permission to travel certain routes within the CPD at certain times for certain purposes.  There is a notable difference in the way the staff report describes the process for seeking a variance and what's described in the ordinance, raising questions about whether current practices comport with the requirements of the ordinance.  (See proposed section 95.840(b) at page 20 of the staff report.)  In any event, a person who violates the terms of a variance is subject to immediate arrest for criminal trespass and "shall have the exclusion extended an additional 30 days."  (See proposed section 95.850 at page 22 of the staff report.)     

The penalties for failure to comply with citations and exclusion notices, often referred to as "collateral effects", typically create additional barriers to accessing housing, employment and social services.  Barriers which, by the way, Salem spends General Fund and federal dollars to remove.

Measuring Success

The draft staff report offers no evidence, assurances or predictions that the proposed ordinance will reduce the incidents of, or complaints about, "odors, property damage, urination and defecation, panhandling, litter, and aggressive or threatening interactions."  Nor does it offer assurances or predictions that the City will not be sued after enactment, and the American Civil Liberties Union and Oregon Law Center are known to be monitoring the situation.  Councilors who support this bill must weigh the likelihood of litigation and the certainty that the ordinance will further stigmatize and oppress the most vulnerable people in our community against...what, exactly?  A vain hope that it will somehow "clean up" downtown and put an end to complaints?  Hasn't happened anywhere else that sit-lie ordinances have been enacted, and Salem's not likely to be any different.

The draft staff report gives councilors no articulable, evidence-based reason for concluding that
sit-lie is likely to do more good than harm.  Council should therefore reject staff recommendation and the ordinance bill, just as they did in 2017.     

Where Next for Sit-Lie Jr?

By Sarah Owens and Michael Livingston

The big sit-lie lie: the law will apply equally to everyone

So far, the City's tried to make the case for Sit-Lie, Jr. by obfuscation, deflection and avoidance, emphasizing police compassion and overstating the availability of affordable housing and homeless services.

For the City, the issue is:  Are businesses not worthy of compassion ? Don't we all want the City to be clean and inviting?  That  strategy is providing some degree of cover for those who favor sit-lie, but "don't want to be looked at as evil", as some have put it.  For the most part, however, the strategy is not working.  See "City's Community Forum Plan Falters",  "City to Go Solo with Sit-Lie Jr", and "Sit-Lie Jr. Loses at 2d Forum." 

If the City's hope was that the community would see the ordinance as (to use Tom Hoffert's phrase) a "win" and something they could "get behind", it has failed.  It's also eroding the City's credibility, to the point that some are ready to believe that recent police "sweeps" of established camps near Wallace Marine Park were timed deliberately so as to drive the campers into downtown just as Sit-Lie, Jr. heads to City Council.  For details on the camp clean ups, see Bach, J. and Radnovich, C.  "Recent evictions, police activity could end decades of homeless camps in Wallace Marine Park."  (15 September, 2019, Statesman Journal.)  Also see Brynelson, T. "Police tactics toward homeless under fire as Salem considers new ordinance."  (22 September 2019, Salem Reporter.)  (Note that "sweeps" is a word Lt. Upkes considers inapt, because the intent is not to make arrests.) 

The fact that the community largely oppose sit-lie does not mean it won't be enacted.  As things stand now, it's not a question whether some form of it will pass, but when.  That's because a majority of Council support it -- Bennett, Hoy, Kaser, Lewis, and Nanke.  Hoy and Kaser opposed enactment in 2017.  

So, let's talk about when.  The ordinance bill originally was slated to go before Council on July 22.  It was delayed at Councilor Andersen's request and tentatively rescheduled for September 23, but it was later removed and not rescheduled.  Councilor Hoy said in August that there would probably be a work session, but Councilor Kaser doesn't see the need for one, and, as Councilor Andersen put it, "it's her Ward" (proving that not even the City Council believe it will be applied city-wide).  The ordinance bill is tentatively scheduled for the November 25 meeting -- the week of Thanksgiving.  

Sit-lie would ban bench tents like this one

Now let's talk about what form it might take.  The camping ban bothers people, but Salem has long had a ban on camping or "vagrancy."  The proposed ordinance bill basically replaces the old vagrancy ordinance.  See "DHSTF Misled on Need to Assess Codes" and "Vagrancy Law and Legal Definition" (unconstitutionally vague vagrancy statues have largely been replaced with camping and sidewalk ordinances, which purport to focus on "homeless" people's behavior).

Salem is almost certainly going to want to keep camping on public property illegal (proposed SRC 95.730).  The provisions allowing the City to remove personal property left unattended (proposed SRC 95.740) are a logical extension of proposed SRC 95.730, and so are equally likely to be enacted.  Making it a crime to leave property unattended (proposed SRC 95.740) is new (was not in the 2017 ordinance bill) and could discourage people from claiming items that have been removed.   

But what about the ordinance bill's most controversial bits?  Those that make it illegal (and therefore a crime, not a civil offense) to sit or lie on sidewalks between 7a and 9p (proposed SRC 95.720)?  They're what upset people the most.  Here are some of the reasons why:

1. Sit-lie targets people experiencing homelessness and trying to live in public spaces.
2. Sit-lie targets people who rest on sidewalks downtown during the day because it's safer.
3. Sit-lie ignores the fact that Salem has limited day-shelter for people experiencing homelessness, especially women.  See "City to Go Solo with Sit-Lie Jr." 
4. Sit-lie ignores the fact that many businesses take up sidewalk space for tables, chairs and unsightly signage, yet expect people experiencing homelessness to give up their space on the sidewalk, even when they are not being disruptive, and even when they have no reasonable alternative.  
5. Sit-lie drives people experiencing homelessness out of downtown and into less safe areas.
6. Sit-lie erodes, instead of builds, relationships between people experiencing homelessness and  the broader community.
7. Sit-lie treats people experiencing homelessness as "the problem."  
8. Sit-lie sets up the expectation that the police are the answer.
9. Sit-lie has nothing to do with compassion, balancing, or ensuring public safety. 
10. Sit-lie has the effect of expelling people experiencing homelessness from public places and infringes on their constitutionally protected liberty interest to be in public places of their choosing under times and conditions when those places are ordinarily available to members of the public.
11. Sit-lie criminalizes "acts of living" and further stigmatizes homelessness.
12. Sit-lie is a public policy failure.  See Golgowski, N. and Hobbes, M. "America's Homeless Crisis Inspiring New Acts of Cruelty."  (August 2, 2019, HuffPost.)  (Cookie wall.)  Same story can be found here. 

Not that any of the above bother the councilors who support the ordinance bill, because they believe "people have to be held accountable" and "people have a lot of unfounded fears" (Kaser), "the problematic pieces have been removed/altered" (Hoy), and it's okay to expel people from public places as a "preventative measure" (Kaser).  For a majority of Council, "separate but equal" appears to remain legitimate public policy.  

Photo courtesy Travel Salem

The City insists that sit-lie is about "behavior", which is a way of distinguishing it from unconstitutionally vague "status" crimes such as vagrancy, referred to above.  But no one really believes that merely sitting or lying on a sidewalk during business hours "threaten[s] the safety and welfare of all pedestrians" (Ordinance Bill Section 2(e)), or reasonably deters people from going about their business (Section 2(f) and (g)).  If these statements were true, downtown would be blighted area, and -- everyone agrees -- it's very far from it.  See "29 Things You Need to Know About Salem Before You Move There" and "Downtown Salem."   

Fear is learned, so can be un-learned

The fact is that sit-lie is not about "holding people accountable."  For what?  Sitting and lying on the sidewalk?  Scaring people?

When Councilor Kaser says that sit-lie is "preventative", she is effectively admitting it's not about behavior, but about preventing behavior.

When Chief Moore says about sit-lie, "We are fooling ourselves if we don't think people are afraid..., whether it's right or whether it’s wrong, because of some of the things they see", he's effectively admitting it's not about behavior. 

The truth is that sit-lie is about prejudice, plain and simple.  The view by some -- by no means all -- that the mere presence of "the homeless" is enough to frighten people away.  The view that  "homeless" people inevitably behave badly, and therefore need to be removed from the area.

Sit-lie is a classic expression of "antipathy based on faulty and inflexible generalization" (Gordon Allport, The Nature of Prejudice, 1954).  Get the homeless out of downtown, they're bad for business -- that's the Chamber Kool-Aid the City Council is drinking.

An easy way to test for an anti-homeless bias is to suggest to a proponent that it lacks any basis in fact.  The typical response will be "here's what happened to me" or to a friend or acquaintance, as if one or two or ten stories proves the general proposition that "homeless" people behave badly, and discrimination against them as a class is not only justified, but somehow necessary.

People who suffer from anti-homeless bias tend to feel they "shouldn't have to deal with" the problems they associate with homelessness.  Their sense of entitlement fills them with righteous indignation that prevents them from working effectively with other sectors of the community to identify and reduce harms.  And, it is these people and attitudes that now appear to hold sway on City Council.    

Bas relief on Council Chamber doors, depicting 1970s stereotypes

No city should enact ordinance provisions based on prejudice.  A law based on prejudice is by definition arbitrary, so it's no answer to say it will be enforced with compassion.  Friendly bike patrol officer Jim Crow is still Jim Crow.

Salem Police Department officials and others have argued that enacting the sit-lie provisions would be an act of compassion (as in, "I have compassion for the downtown business owners").  But only the most contorted thinking would allow one to conclude that a law based on prejudice against an oppressed class of people was ever, in any sense, an act of compassion. 

Law abiding CANDO residents -- all of them -- have a constitutionally protected liberty interest to be in public places of their choosing under times and conditions when those places are ordinarily available to members of the public.  It is fundamentally unfair and un-American to impose what amounts to a business-hours curfew on a class of people just because some people might fear them or what they might do.  Salem should be done with that.

So, where next for Sit-Lie, Jr.?  If there is any councilor left who has not drunk the Chamber Kool-Aid, s/he should propose the following compromise:  direct staff to remove the provisions that make it illegal to sit or lie on sidewalks and bring back an ordinance that includes the camping ban and the rest of it, but stops short of creating any new crimes targeting people experiencing homelessness.  Stops short, in other words, of acting on prejudice.

This wise councilor should also counsel that the City should get serious about its Good Neighbor Partnership work group, which could advise the City how to assist businesses that need to address disruptive behavior in humane, constructive ways, which would include knowing when to call law enforcement and mental health professionals.  Many downtown businesses are already doing this on their own, and this boundary-setting, relationship-building approach is what's going to work best over the long term. 

Salem Talks About Sit-Lie: Forum Excerpts

In September 2017, the City Council rejected proposed Ordinance Bill 22-17, which would have banned camping on public property, and prohibited sitting and lying on sidewalks from 7a to 9p. In July 2019, the City proposed to put a virtually identical bill, Ordinance Bill 10-19, back to Council. In response to negative media coverage, the City held three forums to receive public comment on the bill, the last on September 26, 2019.  The voices heard at these forums were curated into a one-hour podcast for Mid Valley Cast.  Still photos were added to the audio to make the "visual podcast" version below, in three parts.

Is That True? Sit-Lie FAQs

By Sarah Owens and Michael Livingston

 

City staff at Sit-Lie Forum No. 2

Where did sit-lie start?  Mayor Bennett took office in January 2017, and Salem's first sit-lie ordinance (Ordinance Bill 22-17, "relating to promotion and preservation of safe sidewalks") went to City Council the following fall.  But, Council decided they wanted a task force instead.  This made the Mayor very unhappy.  However, he made the best of it, and tried to get the task force to endorse sit-lie.  Despite best efforts, he was unsuccessful.  So, after a year or so, he decided to give it another go by having the City Manager quietly shop around a revision (Ordinance Bill 10-19 "relating to conduct on sidewalks").  Through this process, sit-lie gained the support of two councilors who had opposed it in 2017 -- enough to get the bill passed.  A vote was scheduled for July 22, 2019, but, after word got out, the bill was hastily pulled from the agenda, and it has not been rescheduled.        

Since then, City officials have been making statements intended to reassure the public that sit-lie is perfectly lawful, necessary, and benign.  This post examines those statements as they relate to the ordinance provisions prohibiting sitting and lying on the sidewalks.  (See our previous blog posts for details on the history of Salem's sit-lie ordinance bills.  Just scroll to the bottom of the blog and select the CANDO Archive topic: "stigma.")

It will keep "sidewalks and other spaces clean."  (City info sheet)  This statement seems to refer to the ordinance provisions that provide for the removal of unattended property, which can be and is currently handled by code enforcement.  It doesn't explain why it's necessary to make sitting and lying on the sidewalk illegal in order to keep public spaces "clean."

People sitting, lying or placing their belongings on the sidewalk prohibit its use.  (Lt. Upkes and other City officials)  If this means they block the sidewalk, then so do allowed uses like cafe tables and signage.  The statement begs the question why allow some blockages of public space and not others.

It gives "police the lawful reason to make contact with people and provide them information on social services." (Deputy Chief Miller and others) For years, police have been contacting people and providing them information on social services without benefit of an ordinance.  No one believes police need an ordinance in order to contact people.

Police "can't do anything" about people blocking the sidewalk unless the person shows the intent of pedestrian interference. (Lt. Upkes and others) If someone truly is blocking the sidewalk or otherwise  behaving in a disruptive manner, police (and providers) can and do make contact, ask for cooperation, and offer services.  In the two years since the first sit-lie ordinance was defeated, the City has made no effort to collect data to show how often, if ever, sidewalks are unintentionally blocked by someone who refuses to cooperate when asked nicely to do so.    

The homeless have alternative locations to go during daylight hours, including the park and city benches, UGM, ARCHES Project, Salvation Army, and other social service agencies.  (Lt. Upkes) The restriction on sitting and lying is year-round, 7a to 9p -- not just "daylight hours."  The Salvation Army offers no day shelter.  UGM, ARCHES and HOAP have limited day shelter hours.  UGM is the only option for weekends and holidays.  There will be times of year and day when the restriction is in force, and yet there is no safe or reasonable alternative to the sidewalk.  

If someone refuses to move along, officers will "give them time."  If the person is still there when the officers return, they will call social service resources.  (Deputy Chief Miller and others)  The ordinance bill doesn't require officers to call social service resources to make sure there is somewhere safe for the person to go before issuing a citation or exclusion, and it does not affirmatively state that no one may be cited/excluded except when s/he has been offered a safe and reasonable alternative place to be. Because the statement has no basis in fact or law, it's just false.

It "won't result in many citations or arrests."  (Deputy Chief Miller and others)  Whether this is a promise or a prediction, it suggests either that police don't intend to enforce, or that they expect a lot of cooperation with enforcement, both of which call into question why the ordinance is even needed.  The statement has no basis in fact or law, so must be considered false.

"A violation is a civil offense."  (City Attorney Dan Atchison)  Most people assume (wrongly) that, if a violation doesn't immediately result in arrest, then it's civil in nature.  However, civil offenses involve violations of administrative matters, whereas criminal offenses arise from ordinances prohibiting certain conduct.  Accordingly, a violation of the ordinance provisions prohibiting sitting, lying or leaving property on a sidewalk unattended would be a low-level criminal offense.  For more on the civil-criminal distinction, see here.

"The problematic pieces [in the 2017 version] have been removed/altered."(Councilor Hoy) Ordinance Bill 10-19 is virtually identical to the 2017 version, which also made sitting and lying on sidewalks between 7a and 9p an infraction, punishable after a warning by a citation or exclusion order, both of which can have collateral effects (i.e., lead to arrest, fines, jail, etc.).  The "problematic pieces" that Hoy identified in the 2017 version have certainly not been removed/altered.

"It does not criminalize homelessness." (Deputy Chief Miller and others) In 2012, the United States Interagency Council on Homelessness (USICH), in partnership with Department of Justice and U.S. Department of Housing and Urban Development (HUD), published “Searching out Solutions: Constructive Alternatives to Criminalization”, which outlined “alternatives for communities who implement local measures that criminalize ‘acts of living.’"  In 2014, HUD issued guidance citing a recent report by the National Law Center on Homelessness and Poverty, “No Safe Place: The Criminalization of Homelessness in U.S. Cities”, finding that there had been a significant increase in city-wide bans on camping, loitering, and begging in public areas, which HUD characterized as “effectively criminalizing people’s need to survive” (emphasis in original) and “exacerbat[ing] existing problems.”  Anyone who believes making sitting and lying on sidewalks illegal does not constitute "criminalizing homelessness" is uninformed or outside the mainstream.

"It's much more about the behavior and not...status." (Councilor Hoy) This sounds good, but the ordinance isn't "about the behavior", unless one accepts the City's view that merely sitting or lying on a sidewalk "threaten[s] the safety and welfare of all pedestrians" (Ordinance Bill Section 2(e)), or reasonably deters people from going about their business (Section 2(f) and (g)).  If Hoy had read the ordinance, he would have realized it still targets people of a certain status, those who tend to rest in public areas like sidewalks because they are safer there, aka, "the homeless."
 

"Businesses deserve compassion, too."  (Chief Moore, Deputy Chief Miller and others) This argument is classic "bothsidesism" -- helpful if one wants to make it sound like one is taking the broader view of a controversy, but, in fact, just wants to change the subject.  In this example, rather than talk about what it would take to offer shelter to all the people who need it, the City seeks to change the subject to the woes of downtown business owners, while suggesting, but not actually saying, that "the homeless" are to blame for them.

Those excluded from downtown but need access to services can easily obtain "waivers."  City officials have been very glib about the ease with which excluded persons can obtain and access services with variances.  However, current SRC 95.750 (Variances from Exclusion), which is virtually unchanged in the proposed ordinance bill, describes a much more narrow process that many in need of services are likely to find hard, if not impossible, to navigate successfully.  See here.

It's safe from constitutional challenge.  (Implied in City info sheets)  An ordinance that has the intended effect of expelling people experiencing homelessness from public places and infringes on their constitutionally protected liberty interest to be in public places of their choosing under times and conditions when those places are ordinarily available to members of the public is not safe from a facial constitutional challenge.  But even an ordinance that is safe from a facial challenge still is subject to an "as applied" challenge, e.g., for interference with free speech rights to panhandle or make music.  Willamette Law 1Ls were very interested in sit-lie in 2017, and there is no reason to believe such interest has waned. 

Notably, the City has avoided claiming outright that sit-lie will stabilize or increase economic activity downtown, drive people to services, and have negligible fiscal impact.  However, these claims have been made implicitly and/or unofficially in meetings and forums by city staff and current and former councilors.  Those interested in giving full consideration to these claims might be interested in these research reports:  "Does Sit-Lie Work:  Will Measure S Increase Economic Activity and Increase Services to Homeless People" (Berkeley, CA) and "Understanding the Implications of a Punitive Approach to Homelessness:  A Local Case Study" (Chico, CA).

Ward 1 Councilor Cara Kaser, a self-styled "progressive", says of sit-lie that "People need to be held accountable."  The irony is, of course, that she means only those living in the streets, not City or elected officials like herself who feel it necessary in an election year to cave to the "Do something" pressure of a few downtown business owners.  That the "something" she is proposing to do is neither a proven nor promising practice for addressing the problem, which is homelessness, appears not to matter to her, or to any of the other supporters of sit-lie.  For that they should be held to account.       
  
If there are other statements about sit-lie that readers would like to have examined, please let us know in the comments section.