Proposed Ordinance 3176 Eight Points

Memo
 
TO:  City Council
FROM:  David Lohman, Ashland City Attorney
RE: Proposed Ordinance No. 3176 – 8 More Questions
DATE: August 7, 2019
____________________________________________________________________________
 
1. Question: Has any City of Ashland elective or administrative officeholder issued an official statement that proposed Ordinance 3176 was explicitly created to target homeless persons?
 
Response:  No.  While any City official may express a personal opinion in his or her individual capacity about the justification for a proposed City action, no City official authorized to speak on behalf of the City Council or City Administration has said proposed Ordinance 3176 was created to target homeless persons or any other particular societal subgroup.
 
2. Question:  Was proposed Ordinance 3176 created to target homeless persons?
 
Response:  No. The purpose of proposed ordinance is to establish an enforceable basis for obtaining -- from any person who plainly commits a violation -- just enough information to enable a police officer to issue a citation for the violation, rather than allowing such a person to avoid getting a citation by refusing to state his/her name and birthdate.  The “target” of the proposed ordinance is all persons whose conduct observably constitutes a violation under any of the City’s ordinances. 
 
Any person – no matter what his or her societal subgroup – has unlimited opportunity to avoid having to say who he or she is by simply refraining from conduct which the City Council is made unlawful by means of an ordinance currently in effect.  
 
The statistical data provided by the Ashland Chief of Police on pre-McNally arrests for failure to identify oneself for purposes of receiving a citation clearly shows there was no disparate enforcement then and no reason to believe there would be disparate enforcement in the future under a City ordinance requiring such identification.
3. Question:  Does proposed Ordinance 3176 “criminalize homelessness”?
 
Response:  No.  The proposed ordinance criminalizes lawlessness plainly exhibited by any person disrespecting City ordinances no matter what his or her societal subgroup.  Under proposed Ordinance 3176, a person could only be charged with a misdemeanor if the arresting officer has probable cause to believe the person has violated an ordinance.  The “Probable Cause” legal standard is initially applied by a law enforcement officer but is subject to the Municipal Court Judge’s review as to whether it was properly applied.
 
4. Question:  Is it likely that Ordinance 3176 would be enforced in an unconstitutional manner?
 
Response:  No.  One might hypothesize that any particular ordinance will be enforced in an unconstitutional manner.  But there is no reason to believe that to be the case for proposed Ordinance 3176.  The proposed ordinance would not allow police to do anything they could not do before McNally.  And no history has been uncovered to suggest that the law before McNally was ever legally challenged as being unconstitutional or even alleged to have been enforced in an unconstitutional manner.
 
5. Question:  If enforcement of proposed ordinance 3176 were, in practice, to have greater impact on some societal subgroups than on others, would the ordinance necessarily be deemed unconstitutional? 
 
Response:  No.  Federal and state equal protection law and due process law ensure that any particular legislation is enforced with relative consistency across all demographic groups.  When that consistent enforcement occurs and nevertheless disproportionately impacts specific demographic groups, a legitimate “disparate impact” claim may arise only if (1) the challenged requirement does not serve a valid public interest; (2) the requirement is adopted with demonstrable discriminatory intent or purpose; and the purported negative impact falls disproportionately on members of groups legally protected and federal or state statutes concerning discrimination in specific legislatively-designated areas, such as employment, education, housing, lending, and voting.  See Washington V Davis, 426 U.S. 229 (1976) (U.S. Supreme Court held that an official act was not unconstitutional solely because it was more burdensome to some subgroups than others).
 
6. Question:  Does the McNally case make any law that requires a person to supply his name and birthdate to a police officer unconstitutional?
 
Response:  No.  In the McNally case, the Oregon Supreme Court issued a new, broad interpretation of an exception contained in an Oregon state statute concerning authority to make an arrest for failing to comply with an order of a police officer.  The Court concluded the police erred by too narrowly interpreting the exception in the statute for passive resistance.  The Court did not rule that any legislation making it a misdemeanor to fail to give one’s name to a police officer for purposes of issuing a citation – or any other form of passive resistance – would be constitutionally limited.  The McNally opinion implicitly rejected the notion that constitutional limitations drove the Court’s conclusion by explicitly saying the outcome in McNally is open to legislative modification.  State v. McNally, 361 Or at 338.
 
7. Question:  Does the State v. McNally case or the City of Eugene v. Kruk case make refusing to give one’s name and date of birth statutorily-protected conduct or preclude a city from enacting legislation to require a person convincingly observed to have been committing a violation to provide his/her name and date of birth to a police officer?
 
Response:  No.  State preclusion of City ordinances governing criminal conduct occurs only when (1) the Oregon Legislature makes that same conduct a crime; (2) the two enactments conflict; (3) and the state enactment is expressly intended to prevail.  City of Portland v. Dollarhide, 300 Or. 490 (1986).   
 
Both McNally and Kruk are cases in which the defendants were charged with refusing to obey a government agent’s order.  The defendants were found to fall within an exception in Subsection (3)(b) of ORS 162.247 (previously ORS 162.235) on interfering with a police officer.  That subsection exempts “passive resistance” to a police officer’s order to undertake or desist from a particular physical act.  Notably, Subsection (3)(a) of ORS 162.247 also creates a separate, limited exception for activity that would constitute “passive resistance” to arrest under ORS 162.315, but Section (2) of ORS 162.315 makes clear that “passive resistance” that would qualify for the exception does not include behavior intended to prevent being taken into custody. 
 
In sum, state statutes make intentional resistance to being taken into custody a crime (per ORS 162.315) even if the resistance is passive.  And that provision, which defines the limits of the exception in ORS 162.247, does not expressly preclude, is not in conflict with, and is analogous to the authority in proposed Ordinance 3176 to charge a person with a misdemeanor for intentionally trying to prevent being cited for a violation by refusing to identify himself or herself.  Therefore, the outcomes in McNally and Kruk do not preclude proposed Ordinance 3176.
 
8. Question:  Could the fine for violating the misdemeanor created by proposed Ordinance 3176 actually amount to $1250?
 
Response:  No.  While the ordinance creates a misdemeanor which, under Oregon statutes, can be enforced by a fine of up to $1250,  Article 9, Section 1 of the Ashland City Charter limit such fines to no more than $500.  Further, the Municipal Court Judge, has discretion to reduce that amount whenever appropriate, such as when there are mitigating circumstances associated with the underlying violation or a reasonable justification for refusing to give one’s name.

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