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Front Page > Issues > 2003 > November

Katz curbs public's sidewalk access

Mayor refuses to let adverse court ruling stop her efforts to purge downtown’s retail district of homeless and others

By Abby Sewell
When Mayor Vera Katz altered the guidelines for enforcing Portland’s Obstruction as Nuisance law last summer, she paved the way for a new crackdown on the homeless. Having been thwarted in her attempt to pass a new “Sit-Lie” law that would have made it illegal for anyone to sit or lie down on public sidewalks, Katz simply changed the enforcement guidelines on the existing law. The result was a de facto sit-lie ban.

Enforcement guidelines are a directive from the mayor to the police department, intended to clarify vaguely worded laws. In this case, many homeless people say the ordinance is being selectively enforced against them in an attempt to shield shoppers and businesspeople from the distasteful sight of poverty in the downtown retail district. And while the enforcement guidelines contain an exception for people engaging in “expressive events” such as festivals or protests, these guidelines were recently revised again, to exclude events lasting more than eight hours. The new revision, made on Aug. 12, 2003, was then used to justify breaking up the Portland Peace Encampment, which had been occupying the sidewalk across the street from City Hall since the U.S. invasion of Iraq in March.

In response to these events, a coalition of housed and homeless activists staged a weekend-long protest against the ordinance, Sept. 26-28. Calling itself the Obstruction as Nuisance Festival, the protest began in front of the Portland Business Alliance headquarters at 4:30 p.m. on the 26th and moved from one location to another every eight hours for the duration of the weekend. During that time, with attendance ranging from two to thirty participants, police ticketed two activists and Greek Cusina security guards assaulted one.

Those incidents aside, said Josh Cinelli, a street roots writer and one of the protest organizers, “The rest of the weekend was a tremendous success. We had many conversations with people on the street, and we were able to engage people who had obvious knee-jerk reactions to what is done to the homeless... communicating from a place of quiet resistance and making a point about the necessity to treat all people with decency, dignity and respect.”

About twenty people gathered in front of the Portland Business Alliance headquarters on Friday, accompanied by the No War Drum Corps. Those in attendance included, among others, homeless people, protesters from the Peace Encampment, and the 2003 Miss Portland Mercury. Many people blame the Portland Business Alliance for pressuring the city to sweep both protesters and homeless people out of the downtown area.

Todd, a former participant in the Portland Peace Encampment, who was arrested several times under the ordinance, summed up the connection between the Portland City Council, the Portland Business Alliance, and the Obstruction as Nuisance laws: “Money runs the government, and the government bends to the PBA’s needs because they represent money.”

Keith, a homeless man and member of the Crossroads community forum, pointed out the difficulties homeless people face in organizing on their own behalf. “I can’t afford to get arrested, because it hurts my chances of finding housing. We’re really relying on people who are housed to take the risk. That’s probably the reason you don’t see a lot of homeless people protesting — because they can be targeted.”

Audrey DeCoursey, the former Miss Portland Mercury, who now volunteers for street roots, agreed that there should be solidarity across class lines on this issue. “Really, [the ordinance] affects everyone when it affects human rights and free speech,” she said.

While the kickoff of the Obstruction as Nuisance protest was occurring, PPRC was holding its 100th weekly peace rally in Pioneer Square. The peace rally briefly merged with the Obstruction as Nuisance protest, prompting several police officers to arrive on the scene, but when the peace marchers moved on, the officers followed.

The Greek Cuisina incident occurred around 2 a.m. Saturday morning, when protester Mike D, who was handing out fliers on the public sidewalk in front of the club, was told to leave by a security guard. When he did not leave, and continued passing out fliers, several more security guards surrounded him, seized him and threw him into the street. At this point, one of the other protesters called 911 and Mike D was taken to the hospital in an ambulance, where he was treated for a shoulder injury and released.

Early on Saturday morning, protesters Joshua Cinelli and Israel Bayer, who had remained through the night and were sleeping on the pedestrian walkway of the east bank esplanade, were roused by police. They each received a ticket carrying a fine of $100 for camping on public property.

“We got to engage the officers in a little Q & A about what they think should be done with the people who do sleep on the street and how a person who is sleeping on the street is supposed to pay a $100 ticket and how having a criminal record affects being able to get a job and housing,” Cinelli said.

As a parallel to the weekend’s protest, Crossroads held a gathering at Sisters of the Road café on Saturday afternoon. The forum gave some homeless people the chance to share their stories of being targeted under the Obstruction as Nuisance ordinance, while also bringing lawyers Alan Graf and Marc Jolin to explain some of the legal questions surrounding the ordinance.

Graf said that the main legal possibilities would be for a group of activists to bring a lawsuit against the city declaring the law to be unconstitutional, perhaps in conjunction with a boycott against the Portland Business Alliance; or to have somebody who was arrested under the law take a criminal case to the court of appeals and have the law found invalid there. The main issue with the second option is that most of the people arrested under the ordinance have been charged with violations and sent to community court rather than criminal court. In community court, the defendant is not entitled to a public defender or a jury trial.

While the Obstruction as Nuisance ordinance has been in place for years, the guidelines on how it is to be enforced are new. It appears that the city is only enforcing the ordinance downtown and in the northwest commercial district. Jolin said that if the homeless can show that the law is being selectively enforced against them, they will have a better basis for legal action.

In the meantime, he said that activists might approach the new police chief, Foxworth, and ask him to give officers a directive to treat homeless people with more respect. All the homeless people present at the gathering said that police treatment of them varied widely. While some officers will look the other way when they see a person sleeping on the street, others will not only enforce the ordinance but will go out of their way to be degrading. One man, for instance, described being called “garbage” and “a menace to society” while he was being forced to move along.

“If officers get a clear directive to treat people decently, they’ll obey. It’s a very hierarchical system,” Jolin said.

When asked whether the law could be approached as a civil rights issue, Jolin pointed out that this would be difficult, as the Constitution does not provide much protection to the poor as a class, and there are few civil rights laws preventing either governments or private entities from discriminating on the basis of poverty. However, some local governments – in Washington, D.C., for instance – have adopted laws that forbid discrimination on the basis of housing status.

The organizers of the protest are planning future actions against the Obstruction as Nuisance ordinance and the criminalization of homelessness in general.

14A.50.030 - The Obstructions as Nuisance Ordinance

  “Unless specifically authorized by ordinance, it is unlawful for any person to obstruct any street or sidewalk, or any part thereof, or to place or cause to be placed, or permit to remain thereon, anything that obstructs or interferes with the normal flow of pedestrian or vehicular traffic, or that is in violation of parking lane, zone or meter regulations for motor vehicles. Such an obstruction hereby is declared to be a public nuisance...The provisions of this Section do not apply to merchandise in course of receipt or delivery, unless that merchandise is permitted to remain upon a street or sidewalk for a period longer than 2 hours.”  


Who can be arrested

“Any person who, as part of a stationary group, reduces the through pedestrian zone of a sidewalk to a width less than eight feet on a fifteen-foot sidewalk, or to less than six feet on narrower sidewalks.”
“Any person who creates an obstruction or a trip hazard by sitting on a sidewalk or by extending body or limb into a sidewalk.”
“Any person who blocks pedestrian access to an information kiosk, water fountain, parking meter or pay station, food cart, trash can. curb ramp, bench, sculpture, paper box, display window, pedestrian walk signal switch or other sidewalk facility or amenity.”
“Any person who places property on a sidewalk and allows the property to be an obstruction or trip hazard by not remaining in a position to immediately remove the belongings to respond to the need of a pedestrian to use the sidewalk.”
“Once a person has been informed by a Officer that a behavior causes an illegal nuisance, any officer can enforce P.C.C. 14A.50.030 against that person without warning or an opportunity to abate the nuisance if the person subsequently engages in that offending behavior, regardless of the amount of time that has passed.”

Who can’t be arrested

“A person standing in a through pedestrian zone as part of a crowd that has formed to participate in or observe an expressive event unless the event has lasted more than eight hours.”
“A person participating in or observing an event permitted by the City.”
“A person obstructing or interfering due to factors beyond the person’s control.”
“A person who leans against a structure but who is able to immediately move to cooperate with their fellow side-walk users in the dynamic accommodations necessary for the efficient and safe use of a sidewalk unless the person reduces the through pedestrian zone of a sidewalk to a width less than eight feet on a fifteen-foot sidewalk, or to less than six feet on narrower sidewalks.”
“If an expressive event causes a blockage of the through pedestrian zone on the sidewalks on both sides of a street, Members may order that the through pedestrian zone on one side of the street remain available for through traffic, and may enforce against persons who subsequently obstruct that through pedestrian zone.”
“The Street Musician Partnership Agreement exempts covered street musicians from the prohibitions in P.C.C. 14A.50.030.”
“Panhandling, alone, does not violate P.C.C. 14A.50.030.”



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Last Updated: November 9, 2003