City puts limits on banning transients
Three homeless men's lawsuit against city results in code changes
Gresham police will now have a harder time excluding homeless people from local parks, trails and open space due to code changes approved by city councilors last month.
As a result of a legal challenge posed by three homeless men last May, Gresham revised its parks exclusion code effective Thursday, March 8, specifying criminal offenses that warrant an exclusion and limiting the geographic area such an exclusion can apply to, said Miles Ward, senior assistant city attorney.
The plaintiffs - Jerome Andres, Lester Mayfield and David Miller - filed a class action lawsuit against the city in U.S. District Court after police in February 2006 banned them from all city parks for 90 days because the men were allegedly unlawfully camping along the Springwater Trail.
However, the popular transient camp known as 'The Swamp' was actually on private property owned by a cemetery, not part of Gresham's Main City Park as the officers thought, Ward said.
The men got an attorney, Ed Johnson, who specializes in housing and homeless rights with the Oregon Law Center, and filed suit.
Johnson said his clients were not motivated by money - the city settled for $13,500 or $1,500 for each plaintiff and $9,000 for their attorney - but by a desire to protect the rights of homeless people. 'There was kind of a feeling among the homeless community in Gresham that the police were misusing the ordinance to push people around and ultimately, sometimes, to push them out of town,' Johnson said.
Free speech, assembly issue
The suit argued that by kicking the men out of all city parks, Gresham denied them access to political rallies, free picnics and other events typically held in parks.
'Parks are important to everybody, but for homeless people they sometimes provide a more vital function because it's a place they can get free meals, hang out and engage in social activities that other people can do in the privacy of their homes,' Johnson said. 'For homeless people, when they get kicked out of parks it's tough because they have very few places they can go.'
The suit also claimed the officers excluded them from public libraries in Gresham and maintained that by being denied access to the Springwater Trail, the men were deprived of easy travel between Gresham and Portland.
In 2004, a U.S. District Court judge ruled in a suit also filed by Johnson that Portland's 50-year-old ordinance excluding people from public parks was unconstitutional.
As a result of the 2004 ruling, as well as last year's lawsuit, Gresham's city attorney agreed to present proposed changes to the city's parks exclusion ordinance to city councilors.
Ward said historically, parks are considered a place to share political views and practice free speech. Then again, police have a right to exclude law-breaking citizens from parks in which they break those laws.
Johnson said Gresham's revised exclusion ordinance does away with its previous one-size-fits-all approach in favor of one that tailors the punishment to the crime.
'It gets closer to allowing the city to get rid of the people who are really creating a nuisance, but it doesn't give them the power to give those blanket exclusions for rinky dink offenses,' Johnson said.
The new code identifies 30-day-exclusion offenses that truly are a threat to public safety, such as drug offenses, as opposed to lesser crimes, such a littering or loitering, Ward said.
Officers also are allowed to exclude people for 24 hours if their conduct is serious enough to prevent other people from enjoying the park, trail or open space. The ordinance also:
• limits exclusions to where the alleged offense took place. Previously, a person excluded from one park could be excluded from all parks.
• requires officers to give a verbal warning and a chance to stop the offensive or unlawful behavior before issuing an exclusion. Exceptions to this rule include felonies, drug offenses or actions that result in injury to a person or damage to property.
• establishes an appeals process for those who wish to challenge an exclusion.
These elements are similar to those in the new Rockwood Drug Free Zone, in which specific drug offenses result in being kicked out of the Rockwood area.
Ward said the ordinance changes strike a balance between preserving an officer's ability to protect public safety while complying with the federal courts decisions and preventing possible lawsuits.
However, enforcing it along the trail won't be easy.
Most parks are big blocks of relatively contained land, where families have picnics and watching their children play on swing sets, he said. The Springwater Trail is different. 'It's tough because not a lot of parks are 26 miles long and 40 feet wide,' Ward said.
Starting Thursday, police began maintaining a database of excluded people so officers on patrol know whether someone already has been excluded.
Gresham Police Chief Carla Piluso said although the code addresses offenses on public property, officers also are working with private-property owners along the Springwater Trail to enforce trespassing laws on their behalf. Many backyards abut the trail and property owners are sometimes not around when officers discover a trespasser.
The city also has posted signs along the trail near The Swamp to notify transients about trespassing laws.
Johnson is pleased with the changes, which he called significant compared to those Portland made in the wake of the 2004 ruling.
'Portland has some of the most restrictive park exclusion ordinances in the country,' Johnson said, adding that some of the changes Portland made to its ordnance were for the better, and others were for the worse.
'Gresham is definitely ahead of the curve,' he said.