"The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread," the novelist Anatole France wrote in 1894.
The law the City of Bend is contemplating to deal with the (supposed) problem of loitering on downtown streets would, we assume, forbid the rich as well as the poor to sit or lie down on the sidewalks. Just the same, it would be an inherently inequitable ordinance - and an unnecessary one.
The city decided it needed to address the "loitering problem" after some business owners complained about people hanging around in Riverfront Park and the breezeway connecting it with Wall Street. "We don't need to have our guests and our citizens intimidated in a portion of town that we think is a treasure," said lame-duck Councilor Oran Teater, who always has been a hard-liner on the loitering question.
But how serious or common is this so-called "intimidation"? We haven't noticed that shoppers strolling through the downtown streets have to pick their way around bodies lying on the sidewalks. In a memo to the city council, City Attorney Mary Winters reported that "the city probably receives no more than five calls a year on sidewalk obstruction."
Any ordinance the city writes, moreover, is likely to run into a thicket of constitutional problems.
"Oregon trial courts have twice invalidated Portland's efforts to adopt measures to prevent sitting or lying on or otherwise obstructing a sidewalk, and the Oregon Court of Appeals affirmed one of the decisions," Winter wrote in her memo. "It is likely that any similar ordinance [enacted by Bend] would meet a similar fate" in the Court of Appeals.
One possible way around the legal obstacle, Winters continued, would be to write a regulation based "at least in part on the need to comply with the ADA and provide a barrier-free pathway along the sidewalk." Such a measure would "require that a specified path be kept clear of obstructions, including people sitting or lying."
How, we wonder, would the city determine whether somebody was obstructing the "specified path"? Would police have to use a tape measure to make sure his feet were far enough away from the curb?
Such details aside, any anti-obstruction measure the city draws up, even with the best intentions, inevitably will be discriminatory in practice. Bankers in Brooks Brothers suits are not going to be busted for sipping lattes at sidewalk tables; the people who will get hassled will be the "undesirables" - i.e., low-income and/or young people.
And even a "carefully crafted" ordinance, Winters advises, would have only "some chance of surviving a constitutional challenge" (emphasis added). In its sorry financial shape, the city can ill afford to bet on a legal long shot - especially when there's no pressing need for it to make such a bet.
There already are laws on the books to use against loitering louts who are rude and obnoxious to passersby; the city should enforce them rigorously - and join us in giving the proposed no-sitting-on-the-sidewalk law THE BOOT.