Constitutional Challenge in Progress

On February 12 the Portland City Council voted to expand both the boundaries and penalties associated with the "Drug Free Zones" (DFZ's) downtown and on the east side. The Drug Free Zones are areas set up by the Portland Police and City Council with a lot of input from downtown businesses. If you are arrested for a drug offense in one of these zones, you can be issued an Exclusion Order, barring you from this part of town--or any other declared DFZ--for 90 days. The exclusion is effective immediately--before a trial, regardless of whether you are ever convicted. (Figure the targets are usually homeless or Latino folks the cops pick on for a bit of harassment.)

According to an excellent article on the DFZ's in the February 28 PDXS, two-thirds of the current list of 500 excluded people are people of color, and 43 percent of the list are Latinos.

The Council's vote enlarged the Zone from Old Town south to Clay Street and created two new zones in sizeable areas of Northeast Portland. In addition to the 90 day exclusion on arrest, those actually convicted of drug offenses will be excluded from the enlarged Zones for one year. If you work or live in the Zone, you may be given a "variance", which means you have to walk along a specific path to work or home, and if you stray from that path, you are trespassing.

The Thursday, March 27 Oregonian reports that a private attorney, Philip Lewis, challenged an exclusion order given for a "prostitution-free zone," which operates in a similar manner. Pointing out that a person is punished by being banned from an area before receiving a sentence, he successfully argued that the ordinance violates the 5th amendment's protection against double jeopardy. While this is an admirable argument, it hardly covers all the constitutional issues raised by these ordinances. The Oregonian states that another exclusion, from a city park, was also challenged on those grounds. The state is appealing the first case, and Legal Aid and the ACLU are helping follow up, thanks in part to the efforts of Portland Copwatch.

As for the new drug-free zones, the only Commissioner who voted to oppose the expansion was Erik Sten, who said he would support it if it applied only to people with prior offenses. This would offer no protection to people whose "priors" were dummied up, and really does not change the fact that the measure violates due process by excluding people upon arrest without conviction. Despite this rather weak objection to the DFZ's, Sten was roundly criticized in a front page article in the March Rap Sheet. The police union referred to his arguments as "political gobbledygook" and ended with the rather threatening intonation: "The Rap Sheet will be keeping an eye on [Sten]."

With Gretchen Kafoury out of town, only two opposition votes were needed to stall this measure. Commissioner Jim Francesconi indicated he had concerns that the ordinance wouldn't stand up to "constitutional muster", but he voted for it because his fears were allayed by Mayor Katz (whose proposal this was) and others at Council, including the City Attorney's office. It is their claim that the DFZ has been challenged and has met constitutional tests.

Nobody can produce a written court decision to this effect. The closest the DFZ came to a constitutional challenge was a "motion to demur" set forth during a criminal case by Metro Public Defenders, citing the 14th amendment and due process issues. The only judge's response to such a motion (provided to Copwatch by City Attorney's office) makes no challenge to the arguments, nor does it provide any constitutional analysis backing the DFZ. It simply declines the motion to demur. This does not establish a test of constitutionality.

And now with the constitutional challenges to the prostitution-free-zone and park exclusions, it is more likely that the DFZ's will crumble in court as predicted by the ACLU of Oregon.

The initial hearing, on February 5, included public testimony. The first to testify were Portland police officers, who seem to have helped author the ordinance. (This is part of an unsettling trend, blurring the lines between public servants and private citizen input, raising serious questions about police creating the laws they are going to enforce.) All but 4 of the 20 or so people testifying thought the DFZ was a good idea, and some even said it did not go far enough. But every person who complained about drugs in their neighborhood complained of their fears for themselves or their property. Not one person said that their family had been destroyed by drug addiction or drug dealing. In other words, the families whose members would be directly affected by this ordinance (and forced to stay out of their own neighborhood) did not come forward. Were they even invited?

In addition, the council also voted on February 12 to expand the towing ordinance, which similarly punishes people who have not been convicted of a crime. The ordinance previously allowed the towing of cars when drivers did not have proof of insurance. The expanded ordinance allows police to tow cars of people driving with suspended licenses. Of course, neither situation is necessarily safe, and driving is a privilege, and not a right. But the constitution does protect against seizure of property without due process of law. Perhaps the cars can be towed back to their owners and disabled, or some other solution can be forged without expanding these draconian laws.

To add insult to injury, police signed an agreement in late 1996 with managers at some of the low- income hotels downtown, in which the private businesses agreed not to rent to anyone on the DFZ exclusion list.

It's imperative that the City Council receive a clear message that handing over broad exclusionary powers to the police is not a good thing, or else downtown may soon be all-white and all-shoppers.

Just as important‹if you have been given an exclusion order or know someone who has, have them contact Legal Aid before the 7 day appeal period is over. Such a case may be able to end these ordinances.

For more information contact Legal Aid: 224-4086,
call Dan or Clayton at Portland Copwatch, (503) 236-3065.
Parts of this article appeared in the March 1997 Portland Alliance.

People's Police Report #11 Table of Contents

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