Legal Briefs (People's Police Report #33)

Sidewalk Nuisance (Sit/Lie) Ordinance, "Interfering with an Officer" Ruled Unconstitutional

On June 22, 2004, Multnomah County Circuit Court Judge Marilyn Litzenberger struck down as unconstitutionally vague and overbroad Portland's "Obstructions as Nuisance" ordinance, City Code 14A.050.030, which the City used to arrest three anti-war protesters who were camping for several months across the street from City Hall (see PPR #31).

City Code 14A.050.030 makes it unlawful for anyone "to obstruct any street or sidewalk" or to do "anythin g that obstructs or interferes with the normal flow of pedestrian or vehicular traffic." In August, 2003 the City Council adopted enforcement guidelines for the ordinance, which they immediately used to arrest the protestors.

Judge Litzenberger, in a lengthy and thorough opinion, ruled that the ordinance is unconstitutionally overbroad since it covers conduct that the Oregon and federal constitutions protect, the right to assemble peacefully. "The ordinance makes no exceptions for peaceful associations or for conduct 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." She also ruled that the ordinance is overly vague, which violates the federal constitutional requirement that criminal statutes be sufficiently definite so that an ordinary person can understand what conduct is prohibited and to prevent arbitrary and discriminatory enforcement of the law. The Judge tossed out the charges against the three protestors. Adam Arms, of the NW Constitutional Rights Center, argued the case for the protestors. Similar ordinances in Cincinnati and Chicago have also been struck down as unconstitutional.

Portland business groups have been urging city officials for years to adopt strict anti-loitering laws to combat pan-handling and transients. Civil liberties groups, however, argue that such laws unfairly target the poor and the homeless, and in essence criminalize homelessness. The City's use of City Code 14A.050.030 to arrest protestors showed that the vagueness and overly broad wording of the ordinance could be used against other classes of people whom the government does not like.

In a separate case, a "stringer" camera operater charged with "Interfering with a Police Officer" (ORS 162. 247) was acquitted when Judge Litzenberger declared that law unconstitutionally broad. The July 15 Portland Mercury reports that Eric Nordquist attempted to capture video of a fire when Officer Terry Colbert (#28896) ordered him to go around the block. He refused, and was cited with interfering. The judge in the case declared the law gave an officer too much power to cite citizens who may merely be exercising their rights.

Supreme Court: Terrorism Suspects Can Challenge Detention in U.S. Courts

On June 28, the U.S. Supreme Court rejected a central tenet of the Bush administration in dealing with the threat of terrorism -- that the government can hold a person indefinitely without bringing charges or holding a trial, and restrict their access to attorneys. The Court ruled that foreigners and U.S. citizens, even if designated as "enemy combatants," are entitled to challenge the evidence behind their detention in a hearing "before a neutral decision maker." The ruling also allows foreign prisoners being held at Guantanamo Bay, Cuba, to have their day in U.S. courts. Justice Sandra Day O'Connor, writing for the majority, stressed "that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens" (CNN, July 5).

Steven Shapiro, legal director of the ACLU, called the rulings "a strong repudiation of the administration's argument that its actions in the war on terrorism are beyond the rule of law and unreviewable by American courts" (Reuters, June 28).

Supreme Court Upholds Nevada Law Criminalizing Refusal to Provide Identification

On June 22, the U.S. Supreme Court, in Hiibel v. Sixth Judicial District Court of Nevada, upheld a Nevada statute that makes it a crime for someone stopped upon "reasonable suspicion" to refuse to give his or her name to police. Larry Hiibel was standing next to his truck with his daughter inside when he was approached by an officer responding to a call about a man hitting a woman in a pickup truck. Hiibel refused to give his name after eleven requests by the officer. He was arrested and fined $250 for refusing to give his name.

The Supreme Court (in an opinion written by Justice Kennedy) ruled that providing one's name is a minimal intrusion on privacy and is outweighed by the state's interest in protecting officers and investigating crime. The Supreme Court in 1968 allowed police officers to "stop and frisk" individuals based on "reasonable suspicion" that they had committed, or were about to commit, a crime. Such "Terry stops," including pat-down searches for weapons, are an exception to requirement under the Fourth Amendment that allows for searches or arrests only upon probable cause. Eighteen other states have statutes which make it a crime to refuse to give identification after one has been stopped based upon "reasonable suspicion," but not all of these states make it a crime to withhold one's name.

The American Civil Liberties Union urged the Court to strike down the Nevada statute because it effectively criminalizes a person's silence. Homeless Advocates argued that such laws could be used to harass homeless people, who often lack identification cards or suffer mental illness. Fortunately for Oregonians, there is no law here requiring a person who is not driving to provide ID.

For more information contact the ACLU at 503-227-3186. Contact Portland Copwatch to get a copy of our "Your Rights and the Police" Card in English, Spanish, Vietnamese, Russian, or Serbo-Croatian.


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