Ordinance 3176 - August 6, 2019
This issue is both very simple and extremely complex. At its core, it is about how we live together in community and the role of personal accountability in civil society. The question is whether we should have a system of voluntary enforcement of our local laws where people only get a citation for violating a local ordinance when they feel like telling an officer who they are, or whether all people should be accountable to the rules of our community.
A bit about my philosophy – I believe strongly that civil society is built on a foundation of accountability by all participants. In the same way that we need to make sure our law enforcement agencies and officers are accountable to the people and our state and federal constitutions, we also need to make sure that individual residents are accountable to each other. We accomplish accountability in both realms through our community culture and our system of laws, and by holding ourselves and our law enforcement systems to a high standard.
Background
It is important to understand the difference between a crime and a violation in this issue. When a person has committed a crime (misdemeanor, felony, etc.) they are arrested, but people cannot be arrested for anything less than an actual crime. Violations of local ordinances are lower level infractions, so people cannot be arrested for violations. In the category of crimes, misdemeanors are the lowest level crime and in Oregon, our misdemeanor class schedule has three levels based on the severity of the crime:
· Class A Misdemeanor: Up to one year incarceration and/or up to $6,250 in fines.
· Class B Misdemeanor: Up to six months incarceration and/or up to $2,500 in fines.
· Class C Misdemeanor: Up to 30 days incarceration and/or up to $1,250 in fines.
Across the U.S., states have laws on the books that essentially require people to cooperate with law enforcement by identifying themselves so that officers can write citations when people commit violations. There is often one law that applies to drivers who are cited for moving violations and another law that applies to people who commit violations outside of their vehicles.
Until 2017, the State of Oregon had two laws that related to the issue of whether people have to cooperate with law enforcement when the officer is trying to issue a citation for a violation of an ordinance. As is the case in many other states, one was for drivers of motor vehicles and the other was for all other situations. The law that applied to people outside of motor vehicles made it a Class A misdemeanor (the most serious misdemeanor in Oregon) to “interfere with a police officer” by refusing to provide name and date of birth to an officer trying to write a citation for a violation.
In researching this situation in other states, Chief O’Meara:
“…used his law enforcement network to ask how other states handle situations in which persons refuse to identify themselves for purposes of being cited for violations. So far, responses have been received from the following states: California, Washington, New Mexico, Ohio, Florida, Indiana, and Wisconsin. The unanimous response was that statutes in those states authorize the arrest of persons who decline to identify themselves to a law enforcement officer attempting to cite them for a violation.” (from a communication from our city attorney in response to a councilor’s question)
I confirmed the same thing for the State of Nevada.
State v. McNally
Some have put forward the idea that the Oregon State Supreme Court has determined that it is unconstitutional to require a person to provide name and date of birth to an officer who is trying to issue a citation for a violation – and that this ordinance is an effort to get around that ruling. That is not true. From our City Attorney: “In 2017, the Oregon Supreme Court issued a ruling in State v. McNally that the statute making it a Class A misdemeanor to interfere with a peace officer would not be triggered by refusing to move in response to an order from a peace officer. The ruling did not define “passive resistance” or say whether it included failure to give one’s name. The ruling was an interpretation of that particular statute; it did not invalidate the separate statute requiring a person observed to have committed a traffic violation to identify himself or herself and did not preclude other legislation from including such a requirement.”
From the City Attorney memo regarding this ruling:
“In the McNally case, the Oregon Supreme Court issued a new, broad interpretation of an exception contained in an Oregon state statute concerning authority to make an arrest for failing to comply with an order of a police officer. The Court concluded the police erred by too narrowly interpreting the exception in the statute for passive resistance. The Court did not rule that any legislation making it a misdemeanor to fail to give one’s name to a police officer for purposes of issuing a citation – or any other form of passive resistance – would be constitutionally limited. The McNally opinion implicitly rejected the notion that constitutional limitations drove the Court’s conclusion by explicitly saying the outcome in McNally is open to legislative modification.”
It would have been far better if the state had fixed this in this last legislative session, but it did not get to it. Work is underway at the state level to rewrite an existing law or develop a new one that meets the criteria identified by the Oregon Supreme Court. Hopefully this will be fixed statewide in the short session in 2020 at which point this ordinance will be moot.
Here in Ashland
In the meantime, our officers are reporting that they are having more people simply refuse to tell them who they are so the officer can write them a citation. Word is getting out on social media and in other networks that all a person has to do if an officer in Oregon is trying to write them a citation for a violation outside of a motor vehicle is to refuse to provide their name and birthdate. Because a person cannot be arrested for a violation, the officer cannot take someone into custody to run fingerprints and figure out who they are. Instead, the officer has to walk away. Rather than simply keep arresting people in this situation, in possible violation of the State v. McNally ruling, the Ashland Police Department requested that the Council take action to give officers the tools they need to do their job of enforcing Ashland’s local ordinances.
If allowed to stand as it is, our current situation results in the enforcement of our local ordinances, which were put in place by representatives elected by the people of Ashland, becoming optional. Essentially, you only get a citation if you are feeling generous enough to identify yourself, which means accountability to the larger community is lost.
Initially the ordinance read:
“10.58.020 Failure to Provide Name and Date of Birth to a Peace Officer A. It shall be unlawful for a person to knowingly fail to provide the person’s name and date of birth to a peace officer having probable cause to believe that the person has committed a violation. As used in this Chapter, “violation” means an offense described in ORS 153.008. B. A person who violates Section A of this Chapter commits a Class C misdemeanor.”
Council passed the first reading of the ordinance with this addition limiting the ordinance to one year unless Council acts in 2020 to extend or make the ordinance permanent. “This Chapter 10.58 is repealed on August 16, 2020, unless the City Council takes further action.”
This ordinance would make it a misdemeanor crime for people to refuse to give their name and birthdate to an officer who is trying to give them a citation for a violation. In that case, an officer could arrest the person, take them to jail, find out their name, and charge them with a misdemeanor crime along with the violation. But the ordinance made it the lowest level misdemeanor possible, so a maximum of 30 days in jail and/or up to a $1,250 fine. Interestingly, the Ashland Charter limits the fine to $500, so that would be the largest actual fine under this ordinance.
Decision-Making Process
At second reading on July 16, there was a long session of public testimony along with several other agenda items that took quite some time, so a motion to approve the second reading of the ordinance was on the table and deliberations had essentially ended, but no vote had been taken, when we reached the mandated 10:30 pm end time for the meeting.
So, the issue was brought back to Council on August 6 to finish the second reading and call for the vote. Because public testimony had already ended during the initial session two weeks earlier, public testimony was not taken on August 6 before Council took a vote. However, in the two weeks prior to August 6, Councilman Slattery led an effort with city staff to remove the probable cause language from the ordinance and replace it with language that made it clear that this was only about ensuring that officers had a recourse if someone refused to give their name and birthdate so the officer could write the citation.
This new language read:
“It shall be unlawful for a person to knowingly fail to provide the person’s name and date of birth to a peace officer when the peace officer is issuing the person a citation for a violation. As used in this Chapter, “violation” means an offense described in ORS 153.008. B. A person who violates Section A of this Chapter commits a Class C misdemeanor. C. This Chapter 10.58 is repealed on August 16, 2020, unless the City Council takes further action.”
I seconded the motion and spoke in support because I believed this would help clarify the ordinance in the minds of people who were particularly concerned about the phrase “probable cause” and whether that meant police officers had greater authority to initiate contact with a person suspected of committing a violation. I could feel the fear in the room and I wanted to make sure people in our community felt safe while also making sure we maintained accountability to the values of our community.
After the wording change was approved, Councilor Akins put forward a motion to consult with civil rights attorneys on alternative language, and I did not second that motion because I believe people should have to cooperate with law enforcement in order to have a civil society and the language change put forward met that criteria while protecting people’s individual rights. It is a simple concept of accountability, I had done my research, and continuing to hammer on this ordinance was not necessary.
“Stop and ID”
One of the most unfortunate aspects of this issue in our community was the pervasive labeling of this ordinance as “Stop and ID.” Stop and ID laws allow law enforcement great discretion in determining who to stop and to demand identification from residents without cause. Given the various biases operating in our culture, Stop and ID laws DO end up targeting certain races and members of the LGBTQ community. But that is not what this ordinance is. It does not give officers any more authority than they already had to stop a person and issue a citation for a violation. If this ordinance was a Stop and ID law, I would be doing everything I could to block it.
Addressing Bias in Law Enforcement
One of the common accusations leveled at this ordinance was that it would be used disproportionately to target certain populations based on race, LGBTQ status, and mental health status. When we think about a typical stop, however, it is clear that where bias exists, is much more likely to be impacting an officer’s first two decisions in a stop: whether to stop the person in the first place and whether to write a ticket or issue a warning. Once the decision has been made to cite a person for a violation, the question about name and birthdate is very straightforward as the officer is no longer making a determination about how to conclude the stop.
Because bias is prevalent in our culture, we need to be vigilant in terms of gathering data so that we know the extent to which we are enforcing our laws equally across all different populations in our community. Then we need to integrate what that data tell us into our ongoing training and programs. Fortunately, Ashland is leading in that data collection effort.
In 2017, the Oregon Legislature passed HB 2355, which created the Statistical Transparency of Policing (STOP) project. This project requires law enforcement agencies to begin collecting data on officer-initiated stops. Data collected includes date, time, location, race, ethnicity, age, gender, the nature of the violation, and the disposition of the stop (did they get a warning or a citation?). This data is critically important as it allows us to match up information about who is being stopped and what is coming from those stops with the demographics of our community to determine where bias might be coming into the judgement of our officers. This allows us to implement programs to help our officers correct for the biases that are routinely, and unconsciously, carried by all people raised in our culture.
The state has been phasing this program in since it passed in 2017 based on the size of police departments. As a mid-sized police department, we were required to start data collection in July of 2019, but Chief O’Meara stepped forward and offered Ashland as one of the pilot communities implementing this data collection effort. Our police department began collecting data in November of 2018 as soon as the system was ready at the state level rather than waiting for the mandated start date. The information collected will become part of the annual report from the Ashland Police Department to the City Council, which happens each spring. As part of this discussion about the ordinance, I put forward a motion, which passed, directing Chief O’Meara to bring this data forward to Council as soon as we have one year of data collected – by the end of December 2019 – so that we can see how it looks as quickly as possible. That will help us know whether action needs to be taken to strengthen bias training for our officers, and if so, where to focus that training. After the report back this December, this data will be shared with Council annually.
What does ID even mean?
There have also been accusations that people would be required to show ID to an officer, which could negatively impact immigrant communities. This ordinance does not require anyone to show a physical ID. It simply requires them to state their name and birthdate so they can be issued a citation for violating a local ordinance.
Impact on the Transgender Community
One of the issues that was brought up by several people offering public testimony regarding the ordinance was that transgender people might be inadvertently outed to their companions if required to say their legal name and birthdate to an officer during a stop. Chief O’Meara showed great integrity during that meeting when he said that he had not considered that particular situation. He went immediately to work looking for sample policies from other communities and within a few weeks had circulated a draft policy to Council after consulting with local LGBTQ organizations. He also lined up a training for his officers for this October without being directed to by Council.
Interestingly, the question about how to maintain the dignity of transgender people during interactions with law enforcement is not limited to this ordinance. It is a question that needs to be addressed in all possible interactions, just as the question of how to interact with people suffering from mental illness or addiction needs to be addressed across all interactions. Unfortunately, rather than focusing on ensuring that those encounters are sound, what I kept hearing from several constituents was that we simply should not enforce our local laws because the people receiving citations might be transgender, mentally ill, of suffering from addiction.
If we play this out to its natural conclusion, refusing to enforce ordinances because some people may be transgender or mentally ill means that we simply stop enforcing the law. After all, it is often impossible to tell that a person is transgender or suffering from mental illness at the beginning of a stop. I do not see how this approach of giving everyone a free pass moves us forward in terms of being accountable to each other in community.
It was particularly disheartening to see members of our community attack Chief O’Meara because he listened to community members from the transgender community and was honest enough to say that this was something new he needed to consider. I hope we are not the type of community where honesty is not tolerated in our local leaders, because those communities are not learning communities. When people are afraid to admit that they do not know everything, very little improvement can be made on a variety of issues. We need to create an environment where it is safe to consider new information and issues that need to be addressed, particularly since gender and other constructs are changing so quickly in our society.
ACLU Letter
Prior to this situation, I had great respect for the ACLU and their efforts to protect the civil rights of individuals in this country. There is no doubt that they have influenced very important civil rights issues over the years. However, the letter they sent over spoke entirely about criminalizing homelessness rather than what this ordinance is actually about – being accountable to your community by cooperating with officers who are enforcing the laws enacted by elected representatives of the community. This ordinance does NOT criminalize homelessness. It simply says give your name and birthdate so that an officer can write a citation if you violate a local ordinance.
No one is stuck being charged with a misdemeanor crime because they can simply say their name and birthdate, at which point they are just looking at receiving a citation for a violation. This ordinance does not create victims. If there is a conversation to be had about whether certain ordinances criminalize homelessness that conversation would need to focus on the actual ordinance that the person violated in the first place – not this ordinance, which focuses on what happens once an officer decides to write a citation.
The Right to Remain Silent
Some residents have challenged the ordinance as countering the right to remain silent, which is guaranteed by the Fourth Amendment. This question was asked of our City Attorney in public session, but he also wrote the following response and distributed it to councilors:
“…numerous federal and state cases confirm that having to accurately identify oneself in response to a probable-cause-based allegation of illegality is permissible under the Fourth Amendment to the U.S. Constitution and under similar state constitutional provisions. For example, having to show one's driver's license upon being stopped for a traffic violation has been unequivocally determined to be permissible under the Fourth Amendment. Also, giving a false name to a police officer attempting to cite a person for a probable-cause-based allegation of commission of a violation or a crime has been conclusively determined to be illegal. The “right to remain silent” becomes relevant when a suspect is charged with an offense and asked to confirm or deny guilt; there is no constitutional right to withhold one’s identity in order to hinder being cited for an offense.”
Public Support for the Ordinance
Some people have made the claim that there is no support in the community for this ordinance. That simply is not true. While the overwhelming number of emails and certainly the people who have come to speak before Council opposed the ordinance, we did receive emails in support. I have also been approached privately by people who wanted to express their support, but did not want to be targeted as a racist, homophobe, or fascist by expressing that opinion in public. Given the behavior of several people in the audience the night the vote was taken, I expect these supporters of the ordinance were right about the personal risk expressing their opinion might have created.
There is also a sense that the Council should just do whatever the people who attend the meetings want it to do. But that is not how responsible public policy works. Councilors need to look at the whole community and determine what decisions are going to serve it best over time, especially when it comes to public policy and interactions between residents and law enforcement.
At the same time, people’s opinions DO matter because we live in a democracy and because Council needs to hear from people with different viewpoints in order to have the information necessary to do a good job. The concerns that residents brought forward have deepened the conversation and improved this decision in several ways:
· Council changed the wording to eliminate the “probable cause” language that was particularly problematic for some residents who were concerned about the ordinance.
· Council decided to sunset the ordinance in 1 year unless Council acts to extend it at that time.
· Council directed Chief O’Meara to bring STOP data back to Council as soon as we have one full year of data collected (by December 31 of this year).
· Council decided to require quarterly reporting from Chief O’Meara regarding how implementation of the ordinance is going. There was general agreement that Council would allow several leaders in the community to be around the dais with Council members during those study sessions to ask questions from the community.
Without the focused attention of our community on these aspects, it is unlikely that these changes would have been made. Civic engagement in this situation has done exactly what it is supposed to do – brought issues to the attention of elected leaders so that they can adjust the path to solve a community problem. It is particularly important that we have robust conversations whenever we are considering changing how law enforcement interacts with residents. In too many places decisions about police procedures are made without the community engaging. That is dangerous in a democracy. Our community should be proud of the level of energy brought to the issue. At the same time, we can be justifiably dismayed by the misinformation that has consistently been spread about the ordinance.
On a Personal Level
My children have been brought into this conversation by residents of our community – mostly on social media – because they are Haitian. Some have expressed that this vote is somehow a betrayal of my children. It is entirely because my children are Haitian that I did all of the research I did before casting my vote. I would never want to support an ordinance that made the current reality for people of color worse than it already is.
I even asked three of my grown children if they thought they should be allowed to scoot from a ticket by not telling the officer who they are. Of course, they do not want to get a ticket – no one does – but all three after thinking a moment about it said that tickets should not be optional. Even as young adults they understand the need to be accountable to the values of the community in which they live by following the law and cooperating with law enforcement.
Moving Forward
My family has had situations here in Ashland where we felt helpless to change the reality of my children’s experience. That is what we need to work on - not eliminating accountability from the system because enforcement is not perfect, but working on that enforcement and on the larger issue of bias in our community so that we can create the equitable society so many of us desire. We need to engage with the issue of bias in a way that has an impact, not by simply saying we are not going to enforce our laws until some magical day in the future when bias is no longer an issue.
There is much work to be done and the conversations I had with community members during this issue, along with testimony presented during council meetings, have sparked ideas about how we can do better as a community, and potentially how the City can help.
This has been, and will continue to be, a very difficult issue for our community, not necessarily because of the content of the ordinance, but because of the very real fear of people who are unquestionably under attack in this country right now - starting at the White House and going all the way down to slurs being hurled at people on our city streets. People are afraid and for good reason – but this ordinance is not endangering people. It is ensuring that we are all personally accountable to each other in our community.
If you have additional questions, please contact me through my council email: tonya@council.ashland.or.us.
Note that I am speaking only on behalf of myself. This blog post does not speak for the entire Council, any other individual councilors, or anyone else at the City of Ashland.