Federal Judge Rules City Exclusion Policy Unconstitutional

On February 26, U.S. District Court Judge Ancer Haggerty ruled that Portland City Code (PCC) 20.12.265, which Portland Police have used to issue orders excluding certain people from public places for 30 days, is unconstitutional. Under the ordinance, a police officer can issue a 30-day exclusion from any City park to any person who violates any state law, city or county code, or Park Bureau rule or regulation. The judge ruled that the ordinance violates the First Amendment and the Fourteenth Amendment's guarantee of procedural and substantive due process.

The case stems from a 30-day exclusion order issued to a woman collecting signatures for medical marijuana in Pioneer Courthouse Square in April, 2002. The woman and her co-petitioner were excluded from the Square, Ankeny Plaza and the South Park Blocks for 30 days. They filed a civil suit in Federal Court against the City of Portland and Pioneer Courthouse Square under 42 U.S.C. 1983 for violating their civil rights. The judge ruled that PCC 20.12.265 is unconstitutionally overbroad and violates the First Amendment on its face and as applied to the two women. The judge awarded summary judgment to the two plaintiffs, allowing them to collect compensatory damages. Almost immediately, Commissioner Jim Francesconi, who heads up the City's Parks Bureau, rewrote the City Code. But rather than improve it, he created exclusions that can last as long as 180 days.

For more information contact the Oregon Law Center at 503-295-2760.

Oregon Supreme Court Strikes Down "Failure to Disperse" Clause
of Disorderly Conduct Law

On March 11, the Oregon Supreme Court struck down as unconstitutional a portion of Oregon's disorderly conduct statute which allowed police to arrest persons who disobeyed police commands to disperse. ORS 166.025, Oregon's disorderly conduct statute, had been used by Portland Police to arrest peace demonstrators when the demonstrators failed to leave an area.

Under ORS 166.025(1)(e), someone commits the crime of disorderly conduct if he or she gathers with others in a public place with the "intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof" and fails to comply with an officer's order to disperse. In 1998 eleven people were arrested in downtown Portland under the statute while protesting the U.S. bombing of Iraq in 1998 and others were arrested during the police actions at the May Day 2000 demonstration. The protestors filed a lawsuit, which led to the decision by the Court invalidating the statute. Last year, police arrested over 135 anti-war protestors simply for failing to obey an order to disperse.

The Oregon Supreme Court ruled that ORS 166.025(1)(e) is unconstitutionally overbroad because it prohibits conduct that is protected under Oregon's constitutionally guaranteed rights to free speech and assembly. The Court noted that persons who are exercising their protected rights of peaceable assembly or expression often do so with the intent to cause public inconvenience, annoyance, or alarm, but that in itself does not make their conduct criminal.

The Court's ruling is a major victory for peaceful protestors exercising their constitutional rights of speech and assembly.

The National Lawyers Guild and the ACLU of Oregon assisted in this case. Call the Belmont Law Center at 503-234-2694 or the ACLU at 503-227-3186.


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