Words by Christopher (C.R.) Moreno and Kokayi Nosakhere
On Tuesday, June 18, 2019 in a small Southern Oregonian town of 22,000 persons, Ashland resident C.R. Moreno testified before a 7 member City Council. His point of contention was (and is) Proposed Ordinance 3176.
For those who are just now joining the discussion, this ordinance is a proposal from Police Chief Tighe O’Meara, and his officers, to resolve a problem they state officers are finding themselves having to address. Thanks to grassroots education about the 2017 Oregon State Supreme Court’s McNally decision, travelers and young persons are choosing to remain silent and refuse to verbally identify themselves or respond positively to the normal police request to identify themselves using a state-issued ID.
This claim, at the time of this publication, does not have any evidence to support it.
Here is the language of the ordinance: https://www.ashland.or.us/SIB/files/052119__Ordinance_3176_Adding_AMC_Chapter_10_58_Attch1.pdf)
Here is a history of media links concerning the development of the Ordinance over two months of continuous protest.
- City of Ashland, Oregon Official Website announcing date of first reading: https://www.ashland.or.us/news.asp?newsID=4323
- Channel 5 (NBC): May 15, 2019 https://kobi5.com/news/proposed-i-d-ordinance-causes-concerns-in-ashland-102116/
- Ashland Tidings (Letters): May 21, 2019 https://ashlandtidings.com/opinion/letters/letters-may-21
- The Ashland Chronicle: June 30, 2019 http://theashlandchronicle.com/3508-2/
- Channel 5 (NBC): July 16. 2019 https://kobi5.com/news/no-vote-for-ashland-id-ordinance-106498/
- Ashland Tidings: July 18, 2019: https://ashlandtidings.com/news/top-stories/ashland-police-ordinance-vote-falls-short-on-time
- The Ashland Chronicle: July 21, 2019: http://theashlandchronicle.com/stop-id-ordinance-in-ashland-greene-reports/
- Ashland Tidings (Letters): July 24, 2019 https://ashlandtidings.com/opinion/letters/letters-july-24-07-24-2019
- Rogue Action Center Facebook Event: Active Right Now https://fo-fo.facebook.com/events/1080470408817415/
Here is the essence of Moreno’s testimony and legal arguments against the Ordinance.
The Ashland Police Department’s (APD’s) Proposed Ordinance 3176 is troubling on many levels, but one thing is for certain: it cannot survive a single court challenge. PO 3176 is a copy of a Beaverton ordinance that APD patrol officers Billings and Carpenter thought Ashland needed in the wake of an Oregon Supreme Court decision known as McNally v. Oregon. McNally decided that exercising your right to remain silent during police questioning was no longer to be an element of Interfering with A Police Officer. That’s it, McNally changed one single element of one single misdemeanor and our APD freaked out and started goose-stepping toward criminalizing the right to remain silent. So, keep in mind that PO 3176 is an APD overreaction to an Oregon Supreme court case that upholds the Fifth Amendment to the United States Constitution. A public records request on this issue turned up APD emails where Lt. Hector Meletich discusses remaining silent and how if this ordinance passes it will be an “arrestable offense.”
Criminalization of constitutional protections aside, PO 3176 contains several defects that activists will no doubt want to know about in preparation for the court challenges, I’ll summarize them briefly;
1) No Legislative Intent. This Ordinance does not originate from within the Ashland City Council. APD swiped it from Beaverton, not realizing that it was affected by McNally, too. Police are not allowed to create laws to enforce. City Councils are NOT rubber stamps, they must deliberate and come up with their own laws. A court challenge, supplied with the emails obtained through public records requests, can positively demonstrate that this ordinance is not the work of the CC, but the APD. In fact, NO council deliberations concerning the language of 3176 are on record. The only entities discussing this ordinance and language therein are the APD and the City Attorney’s Office, who then presented it to CC for rubber-stamping. Also, public records requests turned up emails showing the Assistant City Attorney Katrina Brown granting final editorial powers to the APD. Clearly this ordinance bears zero input or work from the Ashland City Council and thus bears no legislative intent. We have the emails to prove this.
2) Prohibited by Legislature. At lines 13 and 14 of PO 3176, the City Attorney’s office placed a citation of ORS §153.008, intending to treat and define “violations” (like city ordinances) as “offenses” (misdemeanors and felonies) described in that section. Which would be fine, valid, and legal…if they read the ENTIRE section like they were taught in law school. But ORS §153.008 actually contains an application test, which means you have to find the section that applies to the situation at hand and APPLY IT. City Ordinances are covered in ORS 153.008 (1)(c). In order to treat violations as offenses, the APD needs ORS 153.008, but if they actually apply their own citation at section (1)(c), then Oregon law positively PROHIBITS this Ordinance from being enacted or enforced because in its entirety it reads:
“Except as provided in subsection (2) of this section, an offense is a violation if any of the following apply:
(c) The offense is created by an ordinance of a county, city, district or other political subdivision of this state with authority to create offenses, and the ordinance provides that violation of the ordinance is punishable by a fine but does not provide that the offense is punishable by a term of imprisonment. The ordinance may provide for punishment in addition to a fine as long as the punishment does not include a term of imprisonment.”
Since APD demanded a Class C Misdemeanor for violating 3176, and Class C Misdemeanors are punishable by a term of imprisonment, PO 3176 is therefor expressly prohibited by the Oregon Assembly. It’s arrogant and insulting for the APD, City Attorney’s Office, and the City Council to pretend they have powers that are denied them by a legislative act. This express preemption from the Assembly applies everywhere in Oregon. I asked Mayo Stromberg to ask the City Attorney how (1)(c) doesn’t apply in Ashland, and he said I was being “uncivil.”
Recent conversations with CC and Mayo Stromberg have brought this legal defect to their attention, but they are steadfastly refusing to consider it, knowing that acknowledging the existence of Oregon statutes is absolutely fatal to this ordinance. It’s almost comical of them, citing an ORS, but only partially. It also begs the question about the City Attorney’s “Clarification” on 3176, because the CAO categorically states the “ORS 153.008 doesn’t apply,” but then they cite it in the language of their own ordinance. Which is it? The ordinance cites ORS 153.008, but it doesn’t apply? That is psychotic.
Also key to unraveling this legal knot is the acknowledgement in City Attorney Katrina Brown’s emails that she doesn’t know how to link this ordinance to existing law, that she “hopes” citing ORS 153.008 is “sufficient,” and that in all of Ashland’s Municipal Code, there is not ONE SINGLE INSTANCE of a misdemeanor being created solely by ordinance (instead they usually link to existing laws).
The public records request about this ordinance has turned up a lot of information that will be useful in defeating this ordinance upon its passage by the City Council.
I look forward to sharing any information on this subject with activists opposing the APD’s pet ordinance and the Ashland City Council’s garbage governance.
This blog post was updated four hours after publication after review by Councilwoman Julie Akins.