Legal Clarifications on Proposed Ordinance No. 3176

Ordinance No. 3176 relating to Public Safety, adding new Ashland Municipal Code Chapter 10.58 is currently scheduled for at first reading at the June 18 City Council meeting. This meeting is open to the public and will take place at 1175 E. Main Street. Those unable to attend can view the meeting live on channel 9, Charter Communications channels 180 and 181, or streaming online at rvtv.sou.edu on the RVTV Prime channel. 

You can read the full ordinance here

Proposed Ordinance No. 3176 Clarifications:
Sections A, B, and C below reflect our Legal Department's legal opinions – in abbreviated format – on concerns raised about proposed Ordinance No. 3176.  Sections D and E summarize settled legal principles and concepts referenced in the prior sections.  
 
A. WHAT THE PROPOSED ORDINANCE WOULD DO:
(1) Would authorize a police officer who has “probable cause” to believe a person has committed a violation to require that the person state his/her name and date of birth.  See D(2)-(5).
(2) Would allow a person who has been observed committing a violation to be cited for that violation.  Without the proposed ordinance, such a citation cannot be issued unless the alleged offender voluntarily provides his/her name and date of birth.  See D(3).
(3) Would make violations as enforceable as they were prior to the April 2017 decision in State of Oregon v. McNally 361 Or 314 (2017), without giving police officers any more authority than they had then.  See B(1)-(3), B(7)-(9) D(4)-(5).
 
B. WHAT THE PROPOSED ORDINANCE WOULD NOT DO:
(1) Would not create any greater police authority than existed before the McNally decision.  See A(3) and D(4)-(5).
(2) Would not apply unless a police officer observes a person engaging in conduct constituting a violation or has probable cause to believe that a person has violated a city ordinance.  See A(1)-(2), E(3), and E(5).
(3) Would not require any person to provide an identification document, even when a police officer has “probable cause” to believe that the person has committed a violation.
(4) Would not need an authorizing state statute for its enactment.    Specifically, a city has the clear right to designate a particular type of conduct as a misdemeanor under the “home rule” provision of the Oregon Constitution. Cities all over Oregon, including Ashland, have been establishing their own misdemeanor offenses for many years. 
(5) Would not violate any statutory prohibition.  Specifically, ORS 153.008 is not applicable, as it merely defines what constitutes a violation under the law;  ORS 153.008 does not limit cities’ power to designate particular conduct as a misdemeanor.  ORS 131.615 is not applicable, as it applies only to crimes – not violations.  
(6) Would not violate any provisions of the Oregon or U.S. constitutions.  Specifically, the “right to remain silent” does not include the right to refuse to accurately tell police one’s name.  Also, the right to freedom from unwarranted searches does not prevent a police officer with “reasonable suspicion” from making a stop on that person to conduct an inquiry.  See E(1)-(3).
(7) Would not enable police to arbitrarily stop a person.  With or without the ordinance, an officer must have reasonable suspicion that a violation has been committed before making a stop.  See E(1)-(2).
(8) Would not increase or decrease the likelihood that a police officer would stop a person of a particular race, gender-identity, disability, class or immigration status without “reasonable suspicion” that the person has committed a violation.  See E(1)-(2).
(9) Would not allow any more or less racial profiling or any other form of discrimination against any particular group or individual than occurs in regular lawful enforcement of city ordinances.
(10) Would not mandate any particular penalty for refusal to provide one’s name and date of birth. An independent finder of fact (usually, a judge) would make final determinations as to (1) “probable cause” for the charge, guilt of the defendant, and the appropriate penalty.  In Ashland Municipal Court, the maximum allowable penalty is almost never imposed.
(11) Would have no appreciable effect on City revenues.
 
C. WHAT THE DECISION IN MCNALLY DOES AND DOES NOT DO:
(1) Does modify the statutory crime of Interfering with a Peace Officer, ORS 162.247, by removing from the exception for “passive resistance” the requirement that such resistance be based on opposition to a governmental or other policy.
(2) Does not make refusing to give one’s name and date of birth statutorily protected conduct.  At most, the decision in McNally means such a refusal cannot form the basis for charging a person with the specific statutory crime of Interfering with a Peace Officer. 
(3) Does not preclude the Oregon Legislature or a city from enacting legislation to require a person observed to be committing a violation to provide his/her name and date of birth to a police officer.
(4) Does not say that a city ordinance requiring a person observed to be violating a separate ordinance to provide his/her name and date of birth would violate any constitutional right.
 
D. ENFORCEMENT DETAILS:
(1) Currently (without the proposed ordinance), a police officer who has a “reasonable suspicion” that a person has committed or is about to commit an offense has authority to “stop” the person in order to preliminarily determine whether there is “probable cause” to believe an offense actually has been committed.  This is true whether the purported offense is a violation, a misdemeanor, or felony.  
(2) Currently (without the proposed ordinance), if a police officer determines there is “probable cause” to believe that a crime actually has been or is about to be committed, the officer can require the purported offender to provide his/her name and birth date and can either issue a citation or take the purported offender into custody.  
(3) Currently (without the proposed ordinance), a police officer who observes conduct constituting a violation cannot require the purported offender to provide his/her name and birth date, cannot take the purported offender into custody to determine his/her name, and therefore may be unable to issue a citation for the violation.
- Consequence:  Without the proposed ordinance, a person who commits a violation may avoid getting a citation for plainly committing that violation by refusing to state his/her name and birth date.
(4) Prior to the April 2017 decision in State of Oregon v. McNally, a police officer who determined that a violation had been committed could require the purported offender to provide his/her name and birth date, but could only take the purported offender into custody if he/she made it impossible to issue a citation by refusing to provide his/her name and date of birth.
(5) Under the proposed ordinance, the ability to enforce violations would be no greater than before the McNally decision;  it would be the same.  See A(3), B(1), and D(4).
 
E. DEFINITIONS:
(1) Types of Interactions Between Police Officers and Individuals:  (See Oregon Department of Justice 2019 Manual of Oregon Search and Seizure Law Oregon, p. 37).
a. Encounter - A circumstance in which a police officer approaches a person in a public place and asks if the person is willing to answer questions; a mere conversation;  questioning without any restraint of liberty;  requires no particular justification such as “reasonable suspicion.”  United States v. Drayton, 536 US 194 (2002).  A mere request for identification does not convert a mere encounter into a stop or seizure.  State v. Backstrand, 354 Or 392 (2013). 
b. Stop - A temporary restraint of a person’s liberty;  justified by “reasonable suspicion.”  It is not a stop when officers approach a person in a public place and ask if the person is willing to answer questions. State v. Puffenbarger, 166 Or App 426 (2000).  
c. Arrest – Taking one into custody; justified only by “probable cause.” Florida v. Royer, 460 US 491 (1983).
(2) Reasonable suspicion:  A belief that is reasonable under all circumstances at the time that an offense has been committed or will be committed.  State v. Maciel-Figueroa, 361 Or 163 (2017) “Reasonable suspicion” by itself does not provide grounds for taking a person into custody.
(3) Probable Cause:  A substantial and objective basis exists for a police officer to believe an offense has been committed.  State v. Goodman, 328 Or 318 (1999)
(4) Crime:  Unlawful conduct for which a person can be taken into custody and lodged in jail.  (A misdemeanor or felony.)  
(5) Violation: Unlawful conduct for which a person can be issued a citation, the punishment for which can be a fine or other non-incarceration (for example, community service) -- but not incarceration.

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