June 24, 2004
(Updated) Court Tosses 'Obstructions As Nuisances' Ordinance As Unconstitutional
City's Continued Defiance Of Liberties In The Name Of 'Livability' Suffers Another Setback
Note: This post has been updated. Any and all updates appear at the end of the original post.
We missed the improperly-titled announcement on Portland Indymedia last night, but today's Oregonian also covers the latest development in a case that we had forgotten about:
A Multnomah County judge on Wednesday overturned a Portland ordinance that makes it illegal to block any portion of the sidewalk.
Circuit Judge Marilyn E. Litzenberger ruled the ordinance, which Portland police used to arrest three Iraq war protesters in August, was unconstitutionally broad and vague.
While the Portland Indymedia item continues the local left's incorrect reference to the "sit-lie" ordinance, the City in fact has no such ordinance. Instead, what's at issue here is City Code 14A.050.030 Obstructions as Nuisances, which reads as follows:
A. 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 City Engineer, the City Traffic Engineer, or the Chief of Police may summarily abate any such obstruction or the obstruction may be abated as set forth in Chapter 29.20.
B. 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. The vehicle in which merchandise is delivered is subject to all parking regulations as described in Title 16.
As The Oregonian article explains, the City Council was asked to adopt an actual sit-lie ordinance but they failed to do so. In its absence, as briefly referenced on this site in August, the Mayor's office created a new set of enforcement guidelines which would allow the Portland Police Bureau to utilize the existing Obstructions as Nuisances ordinance as a defacto "sit-lie" law.
In it's constitutional analysis, Judge Litzenberger's opinion (pdf) relates other relevant cases, cited by the defendants, which were determined to be constitutionally overbroad.
The Portland city ordinance here reaches the same type of constitutionally protected conduct: persons assembled on a sidewalk, for whatever reason, who are blocking or impeding others' travel along the sidewalk. It does not distinguish between persons who are creating a disturbance or some other harmful effect and those who are not.
Litzenberger therefore finds that the Obstructions as Nuisances ordinance "encompasses conduct that is protected by Article I, section 26 of the oregon Constitution and by the First Amendment to the US Constitution."
She goes on to state that no evidence was presented to suggest that the restrictions of the ordinance would be permissible under a "historical exceptions" test, and that since other portions of the City Code dealing with public order are drawn more narrowly than the ordinance in question, the court has no basis to interpret the Obstructions as Nuisances ordinance "to touch only those persons who assembly blocks a substantial (versus any) part of the street or sidewalk."
Litzenberger also analyzes whether or not the ordinance is unconstituonally vague in addition to being overbroad -- in other words, does it provide a "reasonable degree of certainty" as to what conduct violates its provisions.
In what can easily be interpreted as an admission that the ordinance itself may well be unconstitutionally vague, the State presented to the court the enforcement guidelines drafted in August of last year (referenced in an entry we linked earlier here) "as further explanation of the type of conduct made criminal" under the Obstructions as Nuisances ordinance. Unfortunately for the State (and by extension the City), Litzenberger didn't buy it:
However, there is no evidence in the record that this draft was ever finalized or that these guidelines were ever distributed to the City's law enforcement officers. Moreover, even if the State could show that the draft was eventually finalized and distributed to law enforcement personnel, it is unlikely that an everyday person would have ready access to the guidelines so that they had an opportunity to circumscribe their actions in a manner that would not violate the law.
After analyzing a few other arguments, Litzenberger goes on to decalre the ordinance "unconstitutionally vague on its face" in addition to her declaration that it is impermissibly overbroad. In her conclusion, she writes:
Defendants' separate challenges to Portland City Ordinance 14A.050.030 based on overbreadth and vagueness are well taken. First, the ordinance is overbroad in that it reaches conduct that the Oregon and United States constitutions declare cannot be prohibited, the right to assemble peacefully. The ordinance makes no exceptions for peaceful associations or for ocnduct that merely causes others to step around a person who happens to be standing on any part of a sidewalk in a manner that is not causing any harmful effect. Second, the ordinance is also void for vagueness, in violation of the federal constitution protections which require that a criminal law have sufficient definiteness that an ordinary person ca understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement of the law. Finally, nothing in the text or context of the ordinance would allow this Court to cure the constitutional infirmities noted above through judicial interpretation.
And so the Obstructions as Nuisances ordinance joins the trash heap of other City ordinances which the courts have declared to be in violation of basic constitutional rights, including its ordinances regaridng parks exclusions and drug-free (and anti-prostitution) zones.
All of these ordinances reflect the City's penchant for disregarding basic constitutional liberties in the name of "livability." As always, we find that the latest court smackdown of an overbroad or vague City ordinance raises a familiar question we've asked since moving here in 1997: Livability for whom, exactly?
Update
The Mayor's office has been referring media inquiries to a particular lawyer with the City Attorney's office. Over there, David Woboril at this point has only this:
The City has no comment or reaction yet. It will take a few days for lawyers in the City Attorney's Office to study and discuss the decision and then brief the policymakers on the options.
Meanwhile, there's OPB News coverage of the decision.
Comments (3)
sarah gilbert on 24 Jun 2004
thanks, b!X, for this thorough and careful coverage - so much better than Indymedia or the Oregonian. where'd you get your commendable grasp of constitutional law?
William on 24 Jun 2004
Good coverage. But I think I'm missing something here because I don't understand how the Indymedia title is inaccurate. It seems as though the Obstructions as Nuisances ordinance was used to target those who were sitting, lying, or standing on a sidewalk, and that that ordinance, though not the proposed one that was rejected, came to take on the same name. Can you explain what I'm missing? Thanks in advance.
The One True b!X on 25 Jun 2004
Can you explain what I'm missing?
Somewhere in an old(ish) post about a Mayotal debate, I reported on the candidates being asked their position on "the sit-lie ordinance." Francesconi said something to the effect of: "There is no sit-lie ordinance, I voted against it." And then said nothing else.
The reason we need to use the correct term is that it (1) allows politicians to evade the question by simply saying there is no sit-lie ordinance, and (2) misinforms the public, who runs around tlaking about aan ordinance that doesn't exist.
And, in fact, the ordinance is not a sit-lie ordinance. Rather, it was the enforcement guidelines which turned it into a quasi sit-lie ordinance.
But the public debate is munged when we don't use the actual terms.