A lawsuit claiming Ashland’s so-called "exclusion zone" laws are unconstitutional was dismissed in Jackson County Circuit court June 26, but its backers say they will re-file.
The lawsuit was not dismissed based on its merits, according to the filing attorney, Bill Mansfield, but instead on a decision that the plaintiffs lacked standing — that is to say, they were not personally affected by the exclusion zone.
“We knew it was a risk, but we thought we’d try it,” said plaintiff and former city Councilor Carol Voisin. “It’s hard because they have to have an address and stay here for at least eight months and stay in touch with us.”
Given that most of the people who are excluded are homeless, it makes finding plaintiffs who will stick around to see the process through more difficult.
Ashland's Downtown Enhanced Law Enforcement Area is a roughly two- by six-block area bounded by Lithia Way on the northeast, Third and Hargadine streets on the southeast, Hargadine Street on the southwest and Winburn Way, Calle Guanajuato and Church Street on the northwest. The ELEA includes the Oregon Shakespeare Festival campus, the Plaza, City Hall and most of the downtown core. Most of Lithia Park, the post office on First Street and the library and fire station on Siskiyou Boulevard are outside the ELEA.
The lawsuit, which was filed on behalf of Ashland residents Debbie Nieswander and Voisin, alleges that the ordinance prohibits the right to assemble in public places and to express themselves as guaranteed by the First Amendment. “It (the ordinance) attacks the right to assemble," says Medford attorney Mansfield, who filed the case. “The law has been that parks, streets, and city halls are public places where people have the right to express themselves, congregate, and exchange information. When you start expelling people from those kinds of places you threaten the nature of our freedoms.”
Mansfield and the plaintiffs are contesting the city of Ashland’s ordinance, adopted in 2012 and since expanded to larger swaths of downtown. The ordinance creates a three strikes rule which says if you are found to have committed three offenses within the downtown area within a six month period you can be banned. Those offenses include drinking in public or having an open container; urinating in public; unnecessary noise; not controlling a dog; having an unlicensed dog; using marijuana in public; and assault and harassment.
Anyone accumulating such a record can be deemed a persistent violator and must be excluded from the area for a period of three months to one year.
Mansfield and advocates for the homeless note that many of the free community meals and winter shelters are in the downtown area, but Mansfield’s case is primarily about the idea that anyone can be banned from a public place where the right to assemble is guaranteed.
He agrees it’s the city’s right to ticket or arrest people who violate the law, but says banning them violates the Constitution. “We’re not attacking civic rights to ticket. We’re attacking expelling people from the public domain,” says Mansfield, who believes it’s clear the ordinance is about keeping the visibly poor and homeless from hanging around the tourist areas. “Business people think they impair their money-making business, the city says it’s about safety. I say it’s about keeping these people out of sight.”
According to the National Housing Institute, 86 percent of the nation’s 50 largest cities have exclusion laws. “The effect of this policy is to exclude homeless people from downtowns where others congregate,” according to the institute.
The city of Ashland City Council was careful in drafting the ordinance to state it is not intended for any particular group, but to be a way of enforcing rules already in existence about certain civic behaviors which impede others ability to operate peacefully. They claim the exclusion is to send a clear message that chronic violations make a person unwelcome.
The National Coalition for the Homeless claims that these zones make it difficult for homeless people to access food and essential services which in effect, “starves them out.”
Longtime homeless Ashland resident John Thiry was under an exclusion zone order when he died earlier this month. While his cause of death is not yet known, Voisin says he might be a good example of what harm can come to a person excluded from the public places where people can find access to food, services and other people who might help them. Whether or not Mansfield uses his family as part of a plaintiff’s case when he refiles, “will be up to them.”
Mansfield says he intends to re-file as soon as he finds plaintiffs willing to be part of the case. “The dismissal said nothing of the points of the case,” he noted.
City of Ashland Attorney Dave Lohman declined comment, saying “It’s still going on, so it would be inappropriate to comment.”
— Email Ashland freelance writer Julie Akins at firstname.lastname@example.org and follow her on Twitter at twitter.com/@julieakins.