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Bend City Council expands civil exclusion zone

click to enlarge exclusionzoneillo.jpg

Erin Rook

This weekend, revelers will flock to downtown Bend to celebrate Independence Day. Whether they realize it or not, they will also be crossing an invisible line into the City's newly expanded civil exclusion zone, where an offense as minor as littering or underage drinking could get them 86'ed from the City's core by police—all without a trial.

At its June 17 meeting, the expansion of the civil exclusion zone—from public parks and Brooks Street to an area spanning from Greenwood Avenue along Harriman Street and Lava Road to Idaho Avenue—was approved by a 5-2 vote of City Council. As with the two prior votes, councilors Nathan Boddie and Barb Campbell dissented, while Mayor Jim Clinton expressed vague concerns about constitutional issues but still voted in favor.

Is there a need?

Ostensibly, the expansion of the civil exclusion zone seeks to reduce crime and increase safety in downtown Bend.

But materials submitted by Bend Police Chief Jim Porter to City Council show that the number of crime-related calls received for the exclusion zone has decreased over the last two years by close to 10 percent.

"Crime has gone down citywide, crime has gone down downtown," Campbell noted in her dissent at the council meeting. For example, in 2013 Bend Police received nearly one assault call per week. The following year, assault calls dropped to just 35.

Even so, a deeper analysis by Bend Police does find that, even within those lower numbers, there is still a higher concentration of crime in the downtown area; while only about 1 percent of the city lives there, close to 5 percent of the City's crime occurs in downtown.

Stewart Fritchman, who owns Bellatazza, a coffee shop at the mouth of the breezeway, says he's happy to hear the exclusion zone is being expanded, since he previously found himself at its outer edge.

"I've had unsavory moments [and] we didn't have any tools to have these not be repeat moments," Fritchman says. "Now we have these tools, and I'm very thankful for it. It's only excluding people who are causing problems."

While the activities causing him the most grief—loitering and panhandling—are not listed among the exclusion-qualifying infractions, he says that the expanded zone's net will still likely catch some of the most frequent offenders.

"You could say that marijuana is a gateway drug to heroin addiction and overdose," Fritchman explains. "And while that's an extreme way to look at it, one small thing leads to a bigger and bigger [problem]."

According to Chuck Arnold, executive director of the Downtown Bend Business Association, none of the business or property owners he's talked to oppose the expansion of the civil exclusion. Rather, concerns from downtown businesses have helped drive it.

"That's why this came about," Arnold says. "Dozens of businesses approached us with concerns."

But in addition to Councilor Campbell, at least one downtown retailer doesn't agree: Dustin Hutchins, store manager for Piece of Mind, a glassware shop that is in the pre-existing exclusion zone, says he thinks the regular police patrols are sufficient and that he hasn't had any trouble with crime.

"It's a real double-edged sword," Hutchins says. "I do enjoy the constant patrols they have in our downtown area—and what I have seen as a semi-soft hand in terms of dealing with [loitering] downtown."

Will it work?

Bend isn't the first city to create a civil exclusion zone in an attempt to reduce crime. Portland and Eugene both had similar ordinances that sought to remove people cited for certain crimes from predetermined zones. But they didn't last.

Former Portland Mayor Tom Potter let that city's exclusion zone expire in 2007 over concerns that it was ineffective and disproportionally affecting African-American residents. He opted to focus on drug treatment instead of excluding drug users from certain parts of the city. Eugene let its exclusion zone expire in 2013.

Since 2013, Bend Police have issued exclusions to 38 people. None have appealed. Information provided by Bend Police indicates that every individual issued an exclusion in the last two years had a prior criminal record, ranging from possession of marijuana and littering near water to assault and arson.

Though the ordinance allows police to exclude anyone cited or arrested for one of the listed criminal offenses, or who commits one of the civil offenses twice in a 12-month period, Chief Jim Porter says officers take a wide range of factors into consideration before deciding to exclude someone.

"Like everything we do as the police, we take enforcement action based upon the totality of the circumstances at each incident," he says. "We leave the officer with the ability to exercise discretion and good judgment. While this may sound like it gives the officer the authority to play favorites, what it does is avoids the 'zero tolerance' mind-set."

Porter adds that while there are other ways to address crime, he believes expanding the exclusion zone will be more cost effective.

"We intensified patrols in the downtown area and pushed down person crimes and calls for service significantly in 2014, it was at a cost of $62,000," he explains. "We are a department which is operating with minimal staff, with competing important areas of calls for service that require officers to respond, and cannot sustain the shift of personnel."

However, many people, like Jann Carson, former executive director for the American Civil Liberties Union (ACLU) of Oregon, have raised concerns that, rather than reducing crime overall, the expanded exclusion zone simply will push crime to its edges—in turn, where patrols will need to be dispatched.

"I think the experience in Portland with having specific geographic zones to try and reduce specific behaviors just pushed behavior to different parts of town," Carson explains. "Without a conviction, the police officer also gets to decide whether someone should be banished from a part of town for a period of time. We've always felt that should come from a judge."

But even though both Portland and Eugene tried and rejected exclusion zones as a means to reducing crime, those analogies were rejected by some Bend City Council members, who said those comparisons are of limited value.

"Let's let Portland be Portland," said Councilor Casey Roats, who supported the ordinance. "We'll be Bend. If our downtown could feel as safe and comfortable as the Old Mill District, I think we'd really be accomplishing something."

Is it fair?

Beyond concerns about whether exclusion zones are necessary or effective are questions of constitutionality and fairness. While Portland's exclusion zone appeared to disproportionately affect racial minorities, in Bend, the concern is focused on the homeless and people with mental illnesses.

"It's really a civil rights issue," says Piece of Mind manager Dustin Hutchins. "And free access to the downtown area, I don't believe a local, state, or federal entity should be able to enact that without any [proof of] harm."

It is that perception of a lack of due process that has some crying foul. Because exclusion zones are treated as a civil matter, those issued exclusions do not have their day in court unless they choose to appeal within five days. There is no "innocent until proven guilty" and no "beyond a reasonable doubt."

Though a citing officer will be required to get the approval of a supervisor before issuing an exclusion, the excluded individual need not be convicted of a crime or civil offense. Additionally, people who receive exclusions may apply for a variance allowing them access to the zone for specific approved purposes, such as going to work, visiting family, and attending church services.

Still, the point of an exclusion zone is to limit access to public spaces. And typically, when a person is barred from a certain geographic location, there is a legal process that precedes the exclusion—such as with registered sex offenders and people served restraining or protection orders.

"We specifically built in pre-exclusion constitutional protections," explains Chief Porter. "Giving those cited due process before they are excluded, by not implementing any exclusion if they chose to appeal. And again, exclusion is only for 90 days. We codified the protection of those who need to be in the downtown area for legitimate reasons."

But Councilor Campbell, who owns a downtown business, says she doesn't believe that the inconvenience to business owners justifies limiting an individual's right to move freely through downtown. At the last City Council meeting, she shared an anecdote about her experiences running her Japanese toy store Wabi Sabi. She described her frustration when she realized that cigarette smoke was pouring in from the bar patio next door to her shop at the time.

"I called [Downtown Bend Business Association Director] Chuck Arnold and said, 'Can't we do something about this?' And he said to me, 'No, you can't. It's the First Amendment.' And I went, 'Constitution!'" she recalled, shaking her fist. "I think we've all been there, we've all had a moment where we thought, I wish that person couldn't do that."

For more from Bend Police Chief Jim Porter, read our full interview on the civil exclusion zone online here.

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