Backed by many business owners, for the past ten years Portland police have been able to use DFZ as a means to hustle along alleged drug dealers and users. With a trial conviction, the police may exclude an alleged dealer from DFZ for an entire year. Even without a conviction--just on the basis of a police officer's discretion--a person can be handed a 90-day exclusion. Anyone who ignores that exclusion and returns to the DFZ may be arrested for felony criminal trespass. That, say civil libertarians and defense attorneys, is simply unconstitutional.
For the past two years the DFZ have been under intense attack, but there has been little success in dismantling the policing protocol. However, last week, the public defender's office scored a major victory when the Oregon Court of Appeals kicked a gaping hole in the rules that govern DFZ. Moreover, a civil lawsuit against the Portland Police and the City of Portland was filed last month in federal court by Childress, the young woman arrested two summers ago in McCall Park. If successful, says Shane Abma, Childress' attorney, that lawsuit could blast DFZ to smithereens.
On Wednesday, the Oregon Court of Appeals handed down a tersely-worded opinion concerning a man who allegedly trespassed into a DFZ just days before his year-long exclusion expired. What was most remarkable about the court's opinion is that the justices took it upon themselves to take down the ordinance.
Stating that police cannot simply arrest a person believed to be trespassing into a DFZ, the justices ordered that police must first request that the person leave the area; only if he refuses may they arrest him. Although the ruling hinges on a technical definition of what criminal trespass is, the implications could be immense. In the past six years, an estimated 20,000 exclusions have been handed out by Portland police (some of those tickets are repeat offenders). Before the ruling, police were allowed to arrest any person believed to be trespassing, immediately. Now, legal experts believe, police will not have so much power.
"I think that the judges are getting fed up with all of these drug-free zone cases," says Abma, who is handling the civil suit against the City. Abma is crusading to bust up the DFZ; he passionately believes that the DFZ ordinance and exclusions unfairly burden the homeless and poor. He points out that most of the homeless shelters and drug rehab centers are ironically located within the DFZ.
While interning at the public defender's office, Abma saw dozens of people who had been slapped with criminal trespass changes under the DFZ rules. One man was arrested after he stepped onto the public sidewalk adjacent to his own front yard. Another man who had been excluded, says Abma, rode a bus to work daily that ran alongside one border of the DFZ.
"When he went to work, the bus was on the south side of the street, but on his way home it was on the north side and in the drug-free zone." One day, the man was arrested while waiting to cross the street on his way home.
Now at the well-heeled law offices of Davis Wright Termaine, Abma hopes that his current case will provide a convincing argument for the courts to remove the DFZ from Portland. He is optimistic and points out that the conservative Ohio Supreme Court struck down exclusion laws in Cincinnati that were copied from Portland's law books. That court said that DFZ violated a person's constitutional right to travel and gather in public spaces. The case concerning Portland's DFZ should go to trial in the next several months.