March 01, 2004
City Council To Consider New Rules For Park Exclusions
Changes Would Extend Periods, Strengthen Appeals Process
As reported last week in The Oregonian, a Federal judge ruled unconstitutional the City's 50-year-old "park exclusion" ordinance:
U.S. District Judge Ancer Haggerty issued the opinion in response to a lawsuit filed by two women who in April 2002 were kicked out of Pioneer Courthouse Square while collecting signatures for a ballot measure in support of medical marijuana. One of the women was issued a $300 ticket for leaving a placard on a statue while she went to get coffee, and both were banned from three downtown parks for 30 days.
Haggerty said the city's parks are "special places" and "unparalleled venues," where people can express ideas and share information. The city's ordinance -- which can be applied to anyone who breaks any city ordinance even outside a park -- is a "needless and unnecessary infringement" on the women's rights.
"The ordinance imposes a substantial burden on an individual's fundamental rights even where the offense does not occur in a park and where no showing can be made that the prohibited conduct endangered park safety," Haggerty wrote.
District court opinions, unfortunately, are not made available online. So until and unless we go down to the Federal courthouse and ask for a copy, we have to rely on news reports on the ruling.
"After talking with the city attorney," the paper quotes Mayor Vera Katz, "we'll make a decision whether to appeal this decision by one judge." And Commissioner Jim Francesconi is quoted as saying, "The whole idea is to keep parks an attractive place for families and kids."
As for the latter quote, we hope that the overly-narrow conception of the use of parks painted by the line from Francesconi is an artifact of what comments were and were not used by The Oregonian and don't reflect, well, an actual overly-narrow conception.
As for the former quote, a decision on filing an appeal may or may not be discussed this Wednesday, when an ordinance to "[r]evise Code provisions regarding exclusion from City Parks, define Park Officer, [and] increase exclusion periods for repeat violators and provide for stays of exclusions during appeal" will come before the City Council.
In addition to specifically provide a definition of "Park Officers" within City Code, the ordinance would replace the current 20.12.265 with new language.
This langage would, among other things, increase the period of exclusion imposed for new violations by those individuals who have been excluded in the past; provide for a process of appeal to the Code Hearings Officer; and allow for waivers from the Commissioner in charge. You might notice that the existing language already establishes these appeal and waiver processes, so it's an open question whether or not the new language has a substantive effect upon the Code's effect -- which one can assume would be necessary for the new language to survive any potential court challenge similar to that which just had the existing Code declared unconstitutional.
One major change which serves those being excluded is that a timely filing of any appeal would result in a stay of the exclusion until the appeal is resolved. Currently, the Code in question does not allow for such a stay of the exclusion during the appeals process.
Another major change appears at our first reading to make it more difficult to exclude a person from any City park for violations that did not necessarily occur in that park, or indeed did nto occur in any park whatsoever. The new language specifies that exclusions from a park are for violations within that park.
However (and this potentially could be a big however), it does allow the Commissioner in charge to "combine two or more parks for enforcement purposes" -- meaning a person could commit a violation in one park and then be excluded from that park plus additional parks.
Most of the other changes -- such as increased exclusion periods and strengthening Commissioner discretion on waivers, which serve the City -- serve the interests of the City instead.
Finally, an Oregonian editorial today sums up some of the needed changes to the law:
The new ordinance should require police to show that an individual's conduct endangered public safety in the park. It should explicitly prohibit exclusion from parks when conduct occurred elsewhere. And it should be absolutely clear that speech protected by the First Amendment, no matter how controversial, is never grounds for exclusion.
While the proposed ordinance does seem to strengthen protections against being excluded from parks for violations committed elsewhere, on first reading, the new language does not appear to limit exclusions to matters of public safety, and it certainly says nothing about protected First Amendment activity, which means appeals or lawsuits are a near guarantee.
It's not possible to determine precisely when this item will come before the Council on Wednesday, although looking at the agenda items for the day, it's not likely to be prior to 10:00 AM, and probably will be some amount later than that, depending on how much time is taken by the one "time certain" on the agenda, dispensing of the consent agenda, and taking up the one item on the regular agenda prior to this ordinance.