SALEM, OR- On Wednesday, February 24th, House Speaker Tina Kotek urged lawmakers to support a bill that she has recently introduced.
The bill would essentially prohibit officers from arresting people on charges of “interfering with police” if they are “passively resisting” a police order.
Oregon's House Speaker pushes bill that would prohibit police from using interfering with officer charge for anyone who passively resists cop’s order https://t.co/h5LCTRcLOm pic.twitter.com/a6J2cdk32h
— The Oregonian (@Oregonian) February 25, 2021
If passed, the change would bring the law into line with a 2017 ruling by the Oregon Supreme Court, which declared that the “interfering with police” charge can no longer be used against people who merely refuse to move after police tell them to do so.
According to Oregon Live, Kotek has argued that police are misusing the charge, particularly during protests, which the city has see night after night since the beginning of summer 2020. She said that the arrests have stifled free speech rights and disproportionately affected people of color.
Back in September 2020, Kotek’s legislative director was arrested on the charge during a protest in Southeast Portland. The charge was later dropped. Kotek told the House Subcommittee on Equitable Policing that:
“Simply frustrating an officer by failing to adhere to or comply with their direction is not criminal behavior.”
She proceeded to cite an article by Oregon Live that was published in August 2020 which detailed the broad use of the charge against homeless people and people of color.
“We all know that law enforcement officers have a very difficult job. It’s important that they have the tools they need to enforce the law, but misuse of ‘interfering with police officer’ erodes public trust and ultimately undermines their ability to serve the public.”
“We have an important opportunity with this bill to reaffirm the original intent of the law.”
— Hillary Borrud (@hborrud) February 22, 2021
The bill, HB3164, together with an amendment she introduced, redefines the charge of interfering with an officer. According to the bill, the new law would:
“Prohibit a person from intentionally or knowingly acting in a manner that prevents an officer from performing their lawful duties with regard to another person or a criminal investigation.”
It would also remove a clause that is currently written, which states that the misdemeanor charge covers when someone simply refuses to obey an officer’s lawful order. It would explicitly say that the charge does not apply when someone is practicing “passive resistance.”
The new law would also say that the charge could not be lodged against someone for conduct that would “constitute any other criminal offense.”
Kotek said in a statement:
“This change removes the opportunity for confusing an officer’s authority to give an order and instead focus on deterring behavior that actually prevents and officer from doing their job.”
The subcommittee’s vice chair, Rep. Ronald H. Noble (R- McMinnville), a former McMinnville police chief, who spent 28 years in the policing field, expressed his reservations of the bill.
He said that he is concerned that the bill, coupled with another before the committee, to repeal a law that would not allow police to declare unlawful assemblies, will actually work to impede free speech.
He said that police will have fewer tools to prevent agitators from disrupting peaceful demonstrations.
“I think we just have to be careful that when we are trying to get to where we want to protect people’s rights to assemble, that we are not creating unintended consequences of actually putting their lives at risk or their safety at risk because we are unable as law enforcement to provide that safety.”
House Speaker Tina Kotek (D-Portland) introduced a bill this week for which she is sole sponsor to address a contentious issue in Oregon and nationally: the criminalization of homelessness.
— ORCA (@OurRevCorvallis) February 5, 2021
The American Civil Liberties Union of Oregon worked on the bill with Kotek. Andrea Valderrama, policy director of Oregon’s ACLU, said in a statement:
“It is imperative that we move forward with the understanding that the role of police should be to facilitate and protect our freedoms, not control and dictate them.”
Reportedly, use of the charge has veered from its initial legislative intent. According to the committee’s staff counsel Gillian Fischer, when the law was first proposed in the late 1990s, police said it would help officers separate people in domestic violence cases when they are unable to immediately determine victim from perpetrator.
It was also initially intended to help officers during traffic stops when passengers try to intervene while officers do sobriety tests on drivers.
If the bill is to stay alive, the subcommittee would forward it next to the House Judiciary Committee for review.
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Oregon bill would allow governor to seize private property – like your home or car – in response to an ’emergency’
January 24th, 2021
OREGON – There’s a new house bill that was recently drafted in Oregon that has already had its first reading earlier in January, which aims to amend two standing pieces of Oregon legislation.
These proposed amendments would essentially afford the state’s governor increased authorities with respect to using, and effectively seizing, personal property during a state of emergency.
This bill pending in the Oregon legislature would allow the Governor to take private property in response to an emergency, and do so temporarily without compensation to the owner. We're in a nearly year-long declared emergency so this is no small thing.https://t.co/MFfCNEj1pV
— Jeff Eager (@Jeff_Eager) January 22, 2021
The new bill in question is called HB 2238.
What the summary of the bill hopes to achieve, if it were ever passed, is modify ORS 35.350 and ORS 401.188 – both of which are current law, but these proposed amendments would have some rather generous expansions.
So, we’ll examine both ORS 35.350 and ORS 401.188 in their current form, and then analyze what the proposed additions to the standing laws can translate to – if passed – via getting past all of the legal jargon.
Here’s the current standing of ORS 35.350:
“This chapter does not affect the ability of a public body, as defined in ORS 174.109 (“Public body” defined), to take immediate possession of property in an emergency that poses a threat to persons or property. [2005 c.565 §2]”
The current law is pretty straight forward – in that, a “public body” (like a maybe cop, sheriff, constable and so on) can take effective possession of any item/items that presents a danger “persons or property”. Say, for instance, someone’s crudely constructed meth lab or stockpile of IEDs or IIDs.
And here is what HB 2238 would like to add to that legislation (new bill text in italics):
“…poses a threat to persons or property, including under the direction of the Governor under ORS 401.188.”
“(2) An owner of property that is used or possessed only temporarily under this section is not entitled to compensation except as the owner may prove entitlement to compensation under Article I, section 18, of the Oregon Constitution.”
So that proposed added text to section one, and the addition of section two, to ORS 35.350 wouldn’t even require there to necessarily be an element of “a threat to persons or property” for a government body to “temporarily” use or possess an Oregon resident’s private property.
Furthermore, all the while not even compensating the owner of the property during these state of emergency seizures.
Sure, there’s the citing that someone could make a claim under Article 1, Section 18 of the Oregon Constitution to receive “compensation” for seized and temporarily used property.
With that, I’d say, ‘good luck’.
Now while the proposed amendment to ORS 35.350 doesn’t specifically mention that any type of personal property can be seized under direction of the state governor, it does mention “under the direction of the Governor under ORS 401.188”.
Which ORS 401.188 just so happens to be the other standing law that HB 2238 wants to alter and would effectively make any and all property able to be seized under a declared emergency.
Here’s the current legal text of the standing ORS 401.188:
“Whenever the Governor has declared a state of emergency, the Governor may issue, amend and enforce rules and orders to:”
“(1) Control, restrict and regulate by rationing, freezing, use of quotas, prohibitions on shipments, price fixing, allocation or other means, the use, sale or distribution of food, feed, fuel, clothing and other commodities, materials, goods and services;”
“(2) Prescribe and direct activities in connection with use, conservation, salvage and prevention of waste of materials, services and facilities, including, but not limited to, production, transportation, power and communication facilities training, and supply of labor, utilization of industrial plants, health and medical care, nutrition, housing, rehabilitation, education, welfare, child care, recreation, consumer protection and other essential civil needs; and”
“(3) Take any other action that may be necessary for the management of resources following an emergency.”
Basically, the current legal standing of ORS 401.188 relates to when there is an active state of emergency declared by the Oregon governor, the governor can effectively mandate most aspects related to entities engaging in general commerce, trade, and services.
Obviously, during the era of the pandemic, Oregon (and many other states, for that matter) saw a whole lot of “control and restrict” when it related to certain types of businesses that were deemed non-essential.
And of course, Oregon has also in the past year declared states of emergency for wildfires, planned rallies, during the election in November, and adding continuations to the state of emergency with respect to COVID.
But as ORS 401.188 stands currently, there aren’t stipulations related an individual’s private property. That’s where this proposed added text to ORS 401.188 would kick in under HB 2238.
Under Section 3 of ORS 401.188, HB 2238 aims to add the following (new bill text in italics):
“(3) Take any other action, including through the seizure, use or possession of any real or personal property, that may be necessary for the management of resources following an emergency.”
That’s about as broad as it can get with regard to what can be used or seized by the government during a state of emergency.
Maybe you have an extra bedroom in your house and the government decides they need it to be utilized to house a person or persons.
Perhaps you have more than one vehicle, and the government decides that your extra car needs to be utilized by them or someone else during a state of emergency.
The aforementioned, and even more, could certainly be possible if HB 2238 were to actually come to fruition.
There needs to serious clarification of this new bill (HB 2238) concerning ‘emergency powers’ by the governor. As a person who participates in emergency management, I am concerned with this language as law. Please address this @duckwilde #orpol #Oregon pic.twitter.com/PhsncpgvoG
— Alex Fast (@alexfastpdx) January 21, 2021
According to the heading among HB 2238, the proposed legislation was sponsored by Representative Marty Wilde – a Democrat representing District 11 within the legislature.
It might be a good time for Oregon residents to email their District 11 representative to share their thoughts on this proposed bill.
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