Sunday, April 7, 2013

An Open Letter to the Mayor and the Eugene City Council

An Open Letter to the Mayor and the Eugene City Council: 

On the night of Thursday, April 4th, fourteen homeless individuals were camped in a group on public property underneath an overpass near the Ferry Street Bridge. Officers from the Eugene Police Department woke them up around 1:15 am on April 5th and arrested eight people without warning, four men and four women ranging in age from 18 to 37 years old. Six others were not arrested and deliberately left behind to “clean up the mess” and take care of the dogs that belonged to those who were arrested. Those who were left behind were told by another officer that they would be arrested the following night if they remained at the location.

The eight who were arrested were originally charged with criminal trespass under E.C. §4.807, despite the fact that there weren’t any posted “No Trespassing” signs, which are required in order for police to arrest for criminal trespass without first issuing a warning. They were brought to the Lane County Jail around 2 am and spent the night there. The next morning, City Prosecutor Dan Barkovic sent an inter-departmental memo to the Eugene Municipal Court, stating that no complaints would be filed for criminal trespass and that “the city has chosen to file the charge of prohibited camping”, which unlike criminal trespass is a violation and not an arrestable offense. The jailed campers were arraigned at the Lane County Jail around noon, where they all pled no contest to the charge of prohibited camping. They were each fined $100, the standard presumptive fine for camping violations, with no consideration given to the fact that they spent the night in jail on misdemeanor charges. They were released from the custody of the Lane County Jail around 2:45 pm on April 5th, and returned to the location where they were arrested.

Back under the bridge after more than twelve hours in custody

While the campers were in jail, police had illegally spray-painted “No Trespassing” in numerous locations on the pillars and walls under the overpass where they were camped.

Paint job courtesy of the Eugene Police Department...

Later that afternoon, I had several conversations with a command officer from the Eugene Police Department about the arrests. After discussing what I viewed to be significant policy violations and legal concerns regarding the arrests, which I have detailed for you below, I was contacted later in the evening and was told that the police were currently “reassessing their approach” to dealing with the overpass area and would not be arresting anyone at the location in the immediate future. Despite this assurance, the campers were still woken up by a police officer in the early morning on April 6th and threatened with arrest, although the officer did not follow through with the threat. I brought this to the attention of the police department as soon as I learned of it, and it is presently being looked into.

The arrests were in part prompted by complaints about the site by a local business owner, specifically concerning trash and debris that does not belong to the people who were arrested. The campers initiated a clean-up of the site as of Sunday morning, April 7th, in order to mitigate tensions with the local business as well as to simply improve the area for everyone’s benefit.

The same location as above, post-cleanup

As I write this, the campers are at the location have not been disturbed or threatened since the morning of the 6th. However, this is obviously an evolving and tentative situation, and I am afraid that the police will again harass or arrest these campers at some point in the near future. 

Given that the Mayor and the City Council are authorized to direct the Police Department on matters such as this, I ask that the Mayor and Council act on this issue and that your decisions and actions in this matter are not only consistent with applicable laws and policies, but that your actions also reflect the City of Eugene’s designation as a “Human Rights City” and the City’s pledge to uphold the principles and values enumerated in the Universal Declaration of Human Rights.

In analyzing what took place in this situation, I have many concerns and have made several observations that are centered around violations of law, policy, and civil rights, which I have elaborated upon immediately below. I ask that you take the following into consideration in addition to conducting your own independent inquiries into this matter.

Thank you,

Alley Valkyrie

Law and Policy Violations Related to the Ferry Street Arrests:

Federal Law: Arresting someone for sleeping when they are homeless and there is no shelter is a violation of the Eighth Amendment as determined by the 9th Circuit Court of Appeals in Jones v. City of L.A., 444 F.3d 1118 (2006). The court ruled that punishing a person for sleeping in public when they have no other option constitutes cruel and unusual punishment.

State Law: ORS 203.079 states that local policies that govern the removal of homeless individuals from camping sites must require a posting of a written notice 24 hours prior to removing people or property. The campers were arrested without any warning or notice, written or verbal.

Local Policy: Pursuant to ORS 203.079, the Eugene Police Operations Manual (Chapter 3, Section 308.18) states that the police are to give 24-hours written notice when they plan on enforcing the camping ordinance on public property, which the police failed to do. Current police practice indicates that EPD believes that the 24-hour requirement does not apply when citing homeless campers for criminal trespass as opposed to prohibited camping, both in this specific situation as well as for any camping arrests on public property that the police charged as criminal trespassing.

Despite the wording of this policy in regards to the term “camping ordinance”, citing under a different ordinance does not excuse them from the 24-hour posting requirement. Even if we assume for the sake of argument that the specific wording of their policy excuses them from the 24-hour notice as it technically reads, the policy as practiced is in violation of the above-mentioned state law. ORS 203.079 makes no mention or distinction as to any specific ordinances in the context of the requirements. The law refers to “removing homeless individuals” from a “camping site on public property” that is not a day-use park and there is no language in the law that allows a municipality to skirt the 24-hour requirement by citing homeless campers for criminal trespass on public property instead of for prohibited camping.

The officers at this scene also violated Chapter 4, Section 11 (Policy #411) of the Police Operations Manual, which requires that the police visibly locate “no trespass” signs before arresting someone for criminal trespass. There were no signs at the location at the time of the arrests, and the police either did not attempt to visibly locate the signs prior to arrest, or they arrested people despite the known lack of signage. Either way, the arresting officers were in violation of this policy.

Local Ordinance: After the campers were taken to jail, police spray-painted the words “No Trespassing” on the underside of the overpass, which is owned by the Oregon Department of Transportation (ODOT). I have not found any text or wording in the City Code or the Police Operations Manual that authorizes such an action, and additionally I think its safe to assume that the police did not request or receive permission from ODOT prior to spray-painting “No Trespassing” on a physical structure that ODOT legally owns.

Any citizen caught spray-painting in the identical location would be charged with criminal mischief under E.C. §4.780, a misdemeanor that carries a maximum $500 fine and/or 30 days in jail. Absent legal authority in the form of policy or ordinance, and absent written authorization from ODOT, the officers that spray-painted “No Trespassing” on the underside of the bridge are in violation of §4.780.

Additionally, such signage is in violation of the sign code, E.C. §9.6600 et seq. §9.6615 prohibits “[s]igns in the public right-of-way not authorized by a governmental agency”, §9.6625 requires a permit for all signs unless they qualify as “exempted” signs, and §9.6610 only exempts public signs from permit requirements “if they are located on private property outside of vision clearance areas”. The “No Trespassing” signs that the police painted are on public property, were presumably not authorized by a governmental agency, and were undoubtedly executed without a permit.

Additional Points, Details and Observations

Use and Intent of the Prohibited Camping and Criminal Trespass Ordinances:

Currently, the police are asserting the authority to ticket homeless campers on public property for criminal trespassing as opposed to prohibited camping. The prohibited camping ordinance (§4.815) and the accompanying EPD policies were enacted in order to give the police a specific means and process for enforcing camping on public property. The existence and wording of the ordinance makes it clear that the City Council intended for prohibited camping to be cited and prosecuted as a non-jailable violation as opposed to an arrestable crime, and that the “legislative intent” was not to jail people for camping. The Eugene Police Department is disregarding and bypassing the intent of the Council by arresting homeless campers on public property and charging them with misdemeanor criminal trespass.

City officials have stated publicly on numerous occasions that the police do not arrest people for camping, and this has been stressed in recent months in the context of the discussions around the constitutionality of Eugene’s camping laws. However, the fact that police assume the authority to arrest campers on public property for criminal trespassing exposes the City’s claims that homeless campers don’t end up in jail as false, dishonest, and misleading to the public.

And as mentioned above, whether the charges are criminal trespass or prohibited camping is irrelevant in regards to the fact that EPD’s actions in arresting homeless campers on public property without 24-hour notice was a violation of state law. The requirements under ORS 203.079 are clear and concise, and do not allow for municipalities to exempt themselves from the mandate based on the specific law or ordinance that is being enforced.

Procedural Issues:

The police originally charged the campers with criminal trespass, a jailable offense.  While they were in jail, the city switched the charges from criminal trespass to prohibited camping due to the lack of “no trespassing” signs posted at the time of the arrest. Prohibited camping is a violation and not a jailable offense, and yet they spent nine hours in jail and were still subject to a $100 fine. They were punished TWICE: after being jailed for a misdemeanor that they were not charged with, they were all then fined the full amount for the violation. They were also denied the right to an attorney despite the fact that they spent the night in jail, due to the fact that the charges were changed and then dropped to a violation.

EPD’s Criminal Trespass Policy (Policy #411):

As stated above, the police posted “No Trespassing” signs in the immediate hours after the arrests, and told the campers who were left remaining that they would be arrested the following night if they stayed at the location. The purpose of the “No Trespassing” signs is to satisfy the posting requirement in Section 411.3 of the Police Operations Manual so that the police can arrest people and charge them with criminal trespass under §4.807 without first issuing a warning. However, Policy #411 also states that the owner of the property must have a signed “Trespass Letter of Consent” on file in order for the police to be able to make an arrest. The property is most likely owned by the Oregon Department of Transportation, which I am in the process of confirming. My copy of the Eugene Police Department’s “Trespass Letter of Consent” database does not show this property to have a signed trespass letter on file.

Furthermore, regardless of whether the property has a letter on file or not, and also regardless of whether there are “No Trespassing” signs or not, arresting someone for criminal trespass at this specific location without first issuing a warning does not satisfy the requirements of the ordinance due to the public nature of the location. The criminal trespass ordinance, E.C. §4.807, distinguishes between premises that by their physical nature or usage are considered “open to the public” and premises that are not. The definition of “enter and remain unlawfully” states that one is not remaining unlawfully until they “fail to leave premises that are open to the public after being lawfully directed to do so by the person in charge”. The underpass in question, which is across from the bike path, and has sidewalks leading up to it, is obviously “open to the public”. A crudely spray-painted “No Trespassing” sign that suggests no actual authority and was erected hastily without proper authorization does not qualify as a lawful direction by a person in charge for the purposes of §4.807.

EPD’s Prohibited Camping Policy (Section 308.18):

EPD’s Prohibited Camping Policy is “designed to provide guidelines to handling incidents of camping in the city”. Section 411(B), titled “Camping on private property”, states that this should be handled as a trespass complaint. Section 411(C), titled “Camping on public property” states that those who are violating the prohibited camping ordinance need to be given 24-hour notice before police can enforce the ordinance unless they are camping in a city park. The “Camping on public property” section makes no mention of handling public camping as a trespass complaint, and the manner in which the policy distinguishes between camping on private and public property in terms of what is being violated suggests that police are violating this policy by citing for trespass instead of prohibited camping on public property. The police are undeniably violating Section 411(C) by not providing 24-hour notice when people are camping on public property. In terms of action and description, homeless campers are violating the camping ordinance, not the trespass ordinance, and as explained above, the difference in terminology does not excuse EPD from this requirement.

Complaints, Appearances, and Solutions:

According to the police, these arrests were in part motivated by “quality-of-life” and “nuisance” complaints from people in the area, with one specific complainant being a local business owner. The site itself was substantially littered with trash and abandoned possessions at the time of the arrests, which could be seen at a distance from the parking lot of the adjacent business that presumably initiated the complaints.

The vast majority of the trash at the site did not belong to those who are currently camping at the site, and those at the site did not have the means and resources on their own to clean it up. Assisted by community members, the campers initiated a cleanup of the site on the morning of April 7th. The cleanup is still in process as of this writing, and the City could easily aid in this effort by either providing a dumpster or arranging for curbside trash pickup.

Aside from the trash concern, there is truly no legitimate basis for complaint-driven enforcement against this specific group of homeless individuals save for the fact that they are sleeping in public. They are too far away from businesses to be considered a noise concern, they are mostly hidden from view of the general public, they do not create open fires, and they do not harass or act hostile to passersby. There is absolutely no sensible or logical reason to harass and punish them, or anyone for that matter, for the mere act of sleeping in public. They are simply trying to survive in a society that for some reason does not believe that housing is a human right, and for both legal and ethical reasons, these individuals need to be left alone by the police and by the city.

1 comment:

  1. Excellent job Alley.

    I walk past here all the time as I head to take my afternoon walks along the river. I have passed by people who were living here and they have been polite and reasonable and I have never felt unsafe as I was nearby.

    What really gets me is those shifty looking NO TRESPASSING signs that were suddenly slapped up. They are sketchy and were obviously made in a hurry, and are of two colors- the black ones you posted and then the smaller Hot Pink ones.

    When did the use of Hot Pink become the choice of color for the authorities? I personally adore Hot Pink but I never thought of it as a color that a police force would use officially.

    But then, they are badly constructed signs with uneven spacing that do not offer any ordinance code numbers or any type of ownership as to who is posting the sign in the first place. There is no "By Order of" or "Under Penalty of" or delineation as to what boundary would need to be crossed to be considered trespassing or time of reference for when one might be considered trespassing.
    It is an open area near a bike path.

    I really think of this as a clear cut case of harassment without reason. If trash is enough of a cause for the police to start arresting people and spray painting structures without permission that I should start calling in about every fast food joint in the city.
    Spray those golden arches with "No Trespassing", please.
    I can also not think of a more noisy neighbor than a bar, so I would be absolutely amazed if that were an actual complaint that a bar would make. And I would say it is certainly not one that the police should have taken seriously.