Should Salem Bar Discrimination Based on "Housing Status"?

By Sarah Owens and Michael Livingston

Salem's Human Rights Commission thinks so, and it's ever so politely asked City Council to "Explore adoption of housing status as a protected identity within the Human Rights Chapter of the Salem Revised Code."  (SRC Chapter 97.)  Councilor Stapleton is expected to move to accept the HRC's recommendation at the first meeting of 2022.  If Council agrees, as seems likely, it would then direct staff to come back at a future date with draft code amendments.  

According to a December 8, 2021 memo (embedded below), the HRC is concerned about reports of people experiencing homelessness being subjected to violence, including being urinated on while sleeping, and excluded from public accommodations "without a behavioral reason."  The HRC wants the City to provide protections for people experiencing homelessness from acts of intimidation as defined by SRC 97.080 Intimidation (making certain acts unlawful) and a "reporting mechanism for micro-aggressions and bias incidents."  

Merriam-Webster defines micro-aggression as "comment or action that subtly and often unconsciously or unintentionally expresses a prejudiced attitude toward a member of a marginalized group (such as a racial minority)."  The acts prohibited under SRC 97.080 all have an element of intentionality (intentionally, knowingly, recklessly).  The City would have to make micro-aggressions and mere bias strict-liability offenses in order to make them unlawful, and that it will never do for reasons that should be obvious.  Providing a mechanism to report acts that are not unlawful is not only impractical, it would surely create unrealistic expectations of the City and further disappointment in its response to homelessness.  For this reason, any reporting mechanism the City stands up should be focused on allegations of unlawful conduct.      

The HRC considered that two other cities prohibit discrimination based on housing ("homeless") status.  Madison, Wisconsin, Code of Ordinances, Sec 39.03 Equal Opportunities Ordinance prohibits the denial of equal opportunity in housing, employment, public accommodations and City facilities on the basis of homelessness, defined as "the status of lacking housing (without regard to whether the individual is a member of a family)", including shelter and transitional housing residents.  Louisville, Kentucky, Metro Ordinance, Sec 92.03 Unlawful Practices in Connection With Housing, bars discriminatory housing practices on the basis of homeless status, and defines homeless as lacking "a fixed, regular, and adequate nighttime residence", including shelter and transitional housing residents.  

It may be argued that amending SRC Chapter 97 will have little, if any, practical effect on homelessness in Salem, but the same could be said for Mayor Bennett's contentious, never-implemented sit-lie ordinance (see "Sit-Lie Passes, But Will Cost"), which left many in the community feeling disgusted with the Mayor and Council's leadership.  Sit-lie was a stupid and wrong thing to do, and some act of contrition is called for.  Amending SRC Chapter 97 to include people perceived to be experiencing homelessness would be a good start.   

 

1/6/22 Update:  Councilor Stapleton's Motion

House Bill Kills Mayor's Sit-Lie Buzz

 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.) 

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.     

Council Conducts 'Disjointed' Session on 'Non-Criminal' Policing

 By Sarah Owens and Michael Livingston

 

In connection with the calls to "defund the police" that came out of the BLM/George Floyd protests this past summer, the City Council in June passed Councilor Andersen's motion to hold a work session "to discuss the use of City funds for various non-criminal matters that are currently handled by the Police Department."  A work session on "Police Operations and Impact of Response to Non-Criminal Issues" took place on September 21, 2020.  The change of language in what the work session was supposed to be about implies an equivalence in the mind of City staff between "funds" and "impact" that's confusing to say the least.     

Slide from Chief Moore's 9/21/20 PowerPoint

The work session didn't touch on protest- and other event-policing, even though they're "non-criminal."  That's because, for purposes of this work session, "non-criminal" was code for "homeless."  Salem figured out a year ago that the City spends around $5M/year dealing with the indirect effects homelessness, based on estimates compiled by the Urban Development Department.  Most of that is for policing.  See Brynelson, T. "Salem homelessness costs city more than $5 million a year, report says."  (27 November 2019, Salem Reporter.)  Bach, J. "Salem spends more than $5.2 million a year on homelessness issues, draft report states." (29 November 2019, Statesman Journal.)  Chief Moore cited the $5M figure in his slide presentation preceding the work session.  The unspoken question for the City is how much, if any, of that $5M can Council shift from the police budget to an agency/program that is better suited to the job?  

To make sense of this work session, back up a year or so ago to the Downtown Good Neighbor Partnership (GNP).  The GNP determined last fall that, from the perspective of downtown businesses, the biggest gap in the homeless services delivery system is the lack of a 24/7, non-police, single-point-of-contact for assistance with unwanted persons and others needing low-level care.  The GNP also determined that, while each of Salem's homeless providers does some form of community outreach, none except Be Bold Ministries had the resources to be on-call to the wider community.  If one of them took the lead, however, the GNP thought it might be possible to develop an on-call agency rotation, but not outside normal weekday, non-holiday business hours.  See November 2019 Meeting Minutes.  

From these GNP conversations, several initiatives emerged to assist downtown businesses.  One was a Good Neighbor Guide that offered practical advice and identified Be Bold Ministries as a resource -- someone to call who was not police who had relationships with many of those living in the streets downtown.  Another was an effort to bring a CAHOOTS-type model to Salem.  Kim Hanson, then with The United Way of the Mid-Willamette Valley, began working with Ashley Hamilton and the Mid-Willamette Community Action Agency to launch a CAHOOTS-lite pilot program, beginning in July 2020.  The effort "almost derailed" because the Salem area lacks the full continuum of homeless services that allows CAHOOTS to be successful in Eugene.  The pilot would require a van + $500K, and would be called HEART, and later CRU (for Community Response Unit).  Thanks to Councilor Nordyke, the City Council included it in its 2020 Policy Agenda.  See "News from the Continuum" (17 October 2020).  While all that was taking place, City Council passed camping and sit-lie bans, making enforcement of the latter dependent on the availability of appropriate, accessible shelter and hygiene facilities.  See "Sit Lie Passes, But It Will Cost"  (9 March 2020).

Then, the pandemic forced plans to shift.  City Council ditched its plan to erect the large tent "shelter" that would allow it to enforce sit-lie, lifted the camping ban in Cascades Gateway and Wallace Marine Parks, and ordered the homeless out of downtown and into the parks where they remain today.  With funding from PacificSource Health Plans, The ARCHES Project, United Way and the Salem Health Foundation, the medical community launched the Alluvium Mobile Health Team, targeting migrant farmworkers, homeless and other frequent users of emergency services, obviating much of the need for CRU.  See Barreda, V. "Local doctors, nurse practitioners launch mobile unit to assist Salem patients."  (20 April 2020, Statesman Journal.)  CRU was thus made redundant. 

However, judging by the comments of Council during the work session, the situation as they see it is unchanged from last February.  Council pledged support for a CAHOOTS-lite CRU, and City staff and department heads need to make it work.  Simple.  They were not looking for data to support the decision, and they didn't get any.  The session was, in the Mayor's words, "disjointed", with councilors focused as much or more on police recruitment as they were on the response to homelessness.  They did not seem prepared and, on the whole, did not ask good questions.  In the end, they charged City Manager Powers with drawing them a roadmap for how to make CRU work.  See the City Manager's 10/26/20 "roadmap" here and compare the United Way proposal here.  Salem might have a roadmap, but it doesn't have a transport vehicle.  Staff are clearly unsupportive of a CAHOOTS-lite CRU.   

Moore's presentation highlighted three units:  those having responsibility for "EDPs" (calls about  emotionally distressed persons) and those that respond to calls involving homeless individuals and camps, namely the Problem Oriented Policing Team, the Downtown Enforcement Team, and the Behavioral Health Unit (BHU).  Official details about those units below.  

Council was told that, in 2019, the Salem Police Department had 118,344 calls, of which 8,000, or 7%, did not receive a police response. Of the daily average of 324 calls, at least 14, or 4%, were EDPs, which are "handled" (meaning "responded to") by the BHU.  (Not all EDPs are responded to.  One shelter provider estimates only about 1 in 5 of its calls is answered, as the BHU tends to be either on another call or not on shift.)  During the work session, Councilor Andersen got confused and said 7.5% of calls were EDPs, but he wasn't corrected.  He said 7.5% was "low" for EDPs. 

The BHU consists of 4.25 FTE, including three officer positions funded through grants from the state to Marion and Polk counties.  Next year's budget puts the annual cost for the BHU at ~$781K.  Police are needed for these calls because they can involve highly intoxicated people -- possibly out of control, possibly armed -- who are potentially dangerous to self or others, in which case they have to be taken into custody.  For this reason, a CAHOOTS-type program might supplement the BHU, but could not replace it.  BHU's official description:

Enhances response to calls involving individuals experiencing behavioral health issues. These specially trained teams of a sworn officer and qualified mental health professional, respond to in progress calls and can provide immediate on scene resources to de-escalate the situation and connect the individual with needed support when appropriate.  When a Behavioral Health Team is the primary responder on the call, fewer officers are needed while the individuals involved receive a higher level of service which often diverts them from the criminal justice system while providing them the resources they need during their crisis.  This also reduces the potential for use of force against people experiencing a crisis. 

Deputy Chief Skip Miller told the Council that police have "no resources" for EDPs who are not deemed a danger to self or others, aside from de-escalating and a courtesy (voluntary) transport to Marion County's Psychiatric Crisis Center (PCC).  If police determine the EDP is a danger to self or others, s/he is put under a police hold and involuntarily transported to the PCC for an assessment.  Some on Council who like to lament that the state and counties are not doing enough seemed not to know that the PCC is run by Marion County, or that the police positions in the BHU are funded by state grants through Marion and Polk counties. 

The POP Team consists of 3 FTE and next year will cost ~$584K.  Official description:

This team uses emerging technologies and trends to address chronic neighborhood issues, including drug houses and other livability issues throughout the city.  They leverage partnerships with other city, county and state agencies to create a collaborative approach designed to resolve those issues that if left unchecked can grow rapidly to more serious consequences.

The Downtown Enforcement Team consists of 7.25 FTE and next year will cost ~$1.4M (less than CRU + a sobering center would have cost pre-pandemic).  Official description:

Provides a sense of safety and security through foot and bicycle patrols to deter criminal activity in the downtown core area, including Riverfront Park, Wallace Marine Park, Minto Island Park and the Transit Mall.  Officers use a combination of presence, education, enforcement and exclusion as they focus on crimes that impact the quality of life in this diverse commercial and residential area.  Officers are also involved in removing transient camps along the downtown parks watershed areas, which in turn reduces contamination of those watersheds by the illegal campers.

Note the use of the word "transient", which is how SPD refers to people experiencing homelessness.   However, Miller told Council something SPD has said many times before -- i.e., it doesn't keep records of people's socioeconomic status, so there's no way for them to know how many of their interactions are with persons experiencing homelessness, or the outcomes of those interactions.  Council also doesn't  know how SPD arrived at its 2019 time estimates (20% of patrol time and 75% of Downtown Enforcement Team time spent dealing with homelessness), but DET members often have told CANDO that, during the summer months, they spend >85% of their time at Marion Square Park.  

Describing existing homeless outreach services such as the BHU, Marion County's Law Enforcement Assisted Diversion (LEAD) and "Alluvium" as a "sort of hodgepodge approach", Councilor Hoy asked Miller if a non-police mobile crisis unit would fill a gap in the existing continuum of homeless services, or was a "reset" needed?  Miller's response, somewhat rambling, was basically that what's needed is some place to take people who are unwanted or in distress, to get them away from where they are not wanted, out of the weather and into the appropriate level of care or supervision.  Implicitly, the place(s) would need to be available after hours.  Hoy took Miller's response as dismissive.  "Quit telling us why [a mobile crisis unit] won't work and tell us what we need to do...in order for that to be successful."  As if that's SPD's job, right?  (For the sake of some commentators who don't understand sarcasm when they see it, it is not SPD's job to figure out how to fill the gaps in the homeless services delivery system.)      

Councilor Kaser asked Miller to describe how police respond to calls from downtown businesses wanting police to respond to unwanted person complaints.  Miller told Council that, first, police determine whether the person can be trespassed.  If so, police will issue a citation.  If the person refuses to leave, police could, before the pandemic, make an arrest and take the person to jail, but the person would not be held.  During the pandemic, there's no point in issuing a citation as police won't make an arrest due to Marion County jail restrictions.  Thus, the situation during the pandemic is, in effect, that the person cannot be trespassed (because, e.g., the person is on public property, or the business does not want the person arrested), and all the police can do is try to talk to the person, which is not desirable as it often results in escalation.  This is why CANDO advocates for following the Good Neighbor Guide instead of calling police to deal with unwanted persons.  Besides, as Deputy Chief George Burke reminded Council, what downtown businesses really want help with is cleaning (a fact first established by the Downtown Homeless Solutions Task Force in 2018).  Council, however, decided not to include funding for additional cleaning services in the 2021 budget.  See "News from the Continuum" (17 October 2020).

Emphasis added.

Two themes emerged in the work session.  One was "no resources" for low-level EDPs and unwanted person calls.  "No resources" means no appropriate place to take these vulnerable people off-hours.  The other was CAHOOTS and how great it would be to have something like that in Salem. 

Everyone loves CAHOOTS these days.  In August, Senator Wyden introduced a bill for a "CAHOOTS Act" that would "help states adopt [non-police] mobile crisis response teams that can be dispatched when a person is experiencing a mental health or substance use disorder" (summary).  It was read twice and referred to the Finance Committee where it sits.  Nordyke envisions Salem's mobile team having an expansive role, as if the community didn't already have the Salem Free Clinics and Northwest Human Services, with its long history of providing medical and mental health services to the homeless community, including medical transport to its West Salem Clinic, not to mention the aforementioned Alluvium team.  

Look.  No one disputes that, all things being equal, this community would benefit from having non-police, mobile crisis response capacity during off-hours, but police are saying (as clearly as they can) that, from their viewpoint, the primary need is for an appropriate place for them -- or whomever -- to take vulnerable people with low-level needs during the off hours.  Councilor Nordyke seems to think an hour in the back of a non-police van will suffice for a lot of people, but police obviously disagree.    Which brings us to the other wrong-end-of-the-telescope view the Council has, namely that Salem needs a $1M/year part-time sobering center.  Here, once again, is what Council doesn't seem to understand.  Salem Hospital's ER is able to provide 24/7 sobering supervision for less than $40K/year (<.5 RN).  Although Medicaid doesn't cover sobering services, and police don't like going to the ER because it can tie them up for hours at a time, and ER doctors (notably Councilor-elect Trevor Phillips) don't like using ER beds for sobering, the fact is that chronically homeless individuals taken to the ER for sobering often have other diagnoseable medical conditions requiring treatment for which the hospital can be reimbursed.  This outcome is good for the patient and doesn't unduly burden the hospital.  Council wants to know why Salem Health is not more supportive of the City's plan to provide outside sobering services?  It just doesn't make good business sense.  Marion County probably can make a similar case regarding its jail beds. 

Some cling to the fantasy that a sobering center is a special place where life-changing decisions begin.  As discussed in previous blog posts, there is simply no clinical evidence that spending a few intoxicated hours in a sobering center has that effect, particularly if one is chronically homeless.  For details on that and other aspects of this misguided effort, see "Let's Make a Sobering Deal" (1 December 2017);  "Sobering Thoughts" (15 June 2018);  "Sobering Center Sustainable?" (10 November 2018);  "Sobering Ctr Operating Gap Widens" (13 January 2019);  "City to Build Despite Ops Funding Gap" (25 January 2019);  "City Admits Sobering Ctr Might Be 'Unattainable'" (12 March 2019).    

Month after month, year after year, Council continues to whine about partners not doing their part to make the sobering center a reality.  It's as if they don't know how to work a problem.  During the work session, Kaser and Nordyke again asked why the City has been unable to build the support needed to operate the sobering center.  But why did they not satisfy themselves on this question before they agreed last February to go against the City Manager's advice not to include the sobering center operations funding in the 2020 Council Policy agenda?  Their failure to do that is quite appalling.  For now, Council would do well to forget about the sobering center and CRU, and concentrate on expanding the hours of the navigation center/low barrier shelter that's in the 2020 Council policy agenda.  That's what police are asking for, if Council would only listen. 

10/27/20 update:  City Council received the Powers/Moore staff report following up on the work session.  Councilor Andersen received assurances that Powers would continue "move forward with further discussions" on a mobile crisis response unit (video of 10/26/20 meeting at 1:39:00).  Deputy Chief Skip Miller clarified that, with regard to the 2019 EDP figures, "handled" means "responded to."  (The original post was updated accordingly.)  The report states that in 2019, 386 of EDPs resulted in custodial transports.  Councilor Nordyke, who was appointed to fill a vacancy on the City Council a year ago, continued to push for the City to pursue a mobile crisis response program, and claims such a program is widely supported by providers.  We have been unable to verify that claim.

City Extends de facto Sit-Lie Ban to September

By Sarah Owens and Michael Livingston

Statesman Journal for Friday 19 June 2020

City Council voted Monday night to extend its March 17 C19 emergency declaration through August.  The declaration was initially set to expire at the end of April.  It was extended once to June 30.

Council's decision comes even as streets are closed downtown to allow more outdoor dining, and despite the City having entered  Phase 2 reopening. 

As Councilor Andersen noted last March, the declaration's prohibition on public gatherings amounts to a 24-7 sit-lie ban that's enforceable by arrest under SRC 95.550, doesn't require the City to provide alternative shelter, and isn't limited to business hours.  See "Sit-Lie meets COVID-19" and  Woodworth, W.  "Advocacy group: Salem violated Constitution, pushed homeless out using COVID-19 excuse"  (19 May 2020, Statesman Journal.) 

Councilor Nanke, who voted against the original declaration as well as City of Salem Resolution 2020-32, was the only one to question the continuing need to ban public gatherings.  

22 June 2020 City Council Meeting

"I know it [the emergency declaration] ties in with our sit-lie", Nanke said, turning to City Manager Steve Powers to ask what progress the City had made on the "accommodations" that need to be in place before the City can enforce the "sidewalk behavior" ordinance (aka "sit-lie", aka Ordinance Bill 6-20). 

Readers will recall that, by its terms, the City may not enforce its "sidewalk behavior" ordinance unless and until the City has made adequate shelter and toilet facilities available during the hours of enforcement.  Under the emergency declaration, the City is able to skirt those requirements -- and arrest violators -- in the name of public health.  

Powers' response indicated he either didn't understand what Nanke was asking, or preferred to talk about something else.   

The City continues to claim that the Mid-Willamette Valley Community Action Agency's ARCHES Project "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."  See staff report in support of City of Salem Resolution 2020-32.  But, as discussed in  "Sit-Lie meets COVID-19",  that's not what MWVCAA's Director stated in his letter to the City.  His letter stated 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."  Nanke's was the only "nay" vote.

In other news, Oregon continues to top the nation with the highest prevalence of adult mental illness, and the lowest rate of access to care.  See Mental Health in America, 2020 Adult Data.

51st - 2020
49th - 2019 
48th - 2018 
49th - 2017 
51st - 2016.

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.)

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.  

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.).

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."