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Portland City Council takes another look at banning public drug consumption

A man, 23, sits on the sidewalk in downtown Portland, preparing what he says is heroin, June 25, 2021. Measure 110, a drug treatment and recovery act, aims to connect drug users to treatment and recovery services, including housing assistance instead of serving time in jail for possessing small amounts of drugs.
Kristyna Wentz-Graff
A man, 23, sits on the sidewalk in downtown Portland, preparing what he says is heroin, June 25, 2021. Measure 110, a drug treatment and recovery act, aims to connect drug users to treatment and recovery services, including housing assistance instead of serving time in jail for possessing small amounts of drugs.

Portland City Council will advance a plan to penalize public drug consumption next week, despite legal barriers to doing so.

Council members will consider a proposal to prohibit the use of controlled substances on public property, similar to the city law banning public alcohol consumption. People who violate this new rule could face up to six months in jail of a $500 fine.

The proposal, crafted by Mayor Ted Wheeler and Commissioner Rene Gonzalez, is meant to discourage public drug use on Portland streets, a trend that has become increasingly common since 2020. That’s when voters approved Measure 110, a statewide ballot measure that decriminalized the possession of a small amount of illicit drugs. Instead of prison time, those found carrying a small quantity of drugs now face a $100 fine, which can be waived by calling a hotline that offers drug addiction treatment referrals. The measure also promised funds to expand substance abuse treatment programs statewide, yet this component has been slow to materialize.

City commissioners argue that the penalties associated with Measure 110 aren’t enough to slow the illicit drug trade fueling the region’s surging overdose death rates.

Wheeler initially proposed the public drug use ban in June as a way to re-establish criminal sanctions for people openly using drugs in public. But the plan was thwarted once Wheeler’s office realized that a decades-old state law prohibits such bans.

The Oregon statute outlaws local governments from adopting a policy that penalizes public consumption of alcohol or controlled substances. The 1971 law was established to address substance abuse as a health problem, rather than a crime. While that law does allow cities to prohibit alcohol consumption in specific areas – as with Portland’s public alcohol consumption ban – it does not allow the same exemption for drugs. That’s likely because illicit drug possession was considered illegal in Oregon until 2020.

Wheeler dropped the proposal a week after announcing it, citing this law’s limitations. He also expressed hope that a new state bill, which makes it a criminal misdemeanor to possess a small amount of any substance containing fentanyl, would help address the problem.

“I expect this change will positively impact the City of Portland by expanding local law enforcement’s abilities to make Portland safer and healthier,” he said at the time.

But Wheeler is now giving the citywide ban another shot.

Wheeler and Gonzalez will jointly reintroduce the public drug consumption ordinance Wednesday. This time, the policy notes that the rule will only be effective once the Legislature passes a law allowing cities to institute a public drug use ban or if a court approves such a ban.

There is currently no legal challenge that explicitly focuses on allowing this ban to stand. Yet state lawmakers are already talking about introducing legislation to tweak the old state law – and then some – in the coming short session, which begins in February.

Wheeler wasn’t the only long-tenured politician caught flat-footed by the state law.

“The prohibition on banning controlled substances – that took a lot of us by surprise,” said Sen. Michael Dembrow, D-Portland.

Dembrow said that while he believes lawmakers should amend the existing law, it needs more analysis. He said it’s important to ensure that there is enough infrastructure in place – including everything from adequately staffed public defense firms to drug treatment facilities – before adopting this policy. Dembrow also raised concern that a public ban could increase drug use in private spaces, like the bathrooms of Portland businesses.

“It’s important that we come up with a policy that’s productive,” he said.

Rep. Rob Nosse, D-Portland, said any legislative tweaks would be part of a larger conversation legislators have held around ways to adjust the impacts of Measure 110 next year.

“I understand how this could be re-criminalization, and that’s not what I want,” Nosse said. “But I also live in Portland, and watching how this open drug use is harming our residents is disheartening.”

Nossespearheaded a bill in the 2023 session to retool some aspects of Measure 110, such as streamlining administrative tasks and grant funding work. He said he’s not personally planning on leading another overhaul to the measure, but he’s certain that “something’s got to be done.”

It’s not clear if that will be as straightforward as a fix to the state law limiting local drug use bans, or something more complex. Nosse said a group of political and business leaders have been meeting with lawmakers to explore ways to amend or alter Measure 110. If that isn’t achieved in the short session, The Oregonian/OregonLive.com reports, some advocates and campaign consultants are prepared to introduce another ballot measure to do the trick.

Dembrow questioned why Portland politicians would push this policy through before the Legislature addresses Measure 110 next year.

“I’m not sure what the point is of passing the ordinance right now,” he said. “Why not wait until there’s legislative action that the city can partner with?”

Measure 110 was crafted to help people with substance abuse disorders get treatment instead of time in custody. This idea is central to the work of Central City Concern, a Portland nonprofit that offers residential substance abuse treatment to people experiencing homelessness. But Central City Concern CEO Andrew Mendenhall also believes that it may be time for Portland to restore some penalties for public drug use.

“We feel that the balance between public safety and individual accountability has been out of balance,” Mendenhall told OPB in June. “And we know the goal here is to bring the community back into better balance.”

Mendenhall said he would support a ban if it came with clear court diversion options for people arrested, like the ability to lessen charges if someone agrees to participate in a treatment program.

“We know treatment programs work,” he said. “But the problem is supply and demand… We know there are not enough treatment options available today.”

A draft of the proposed city ordinance acknowledges this shortage.

“There is a need to expand sobering facilities and treatment resources to address the increased demand of addiction cases,” it reads. It notes that the city will work with Multnomah County to identify more funding to address this problem.

Mendenhall also warned that decriminalizing drug use could push people living outside who are at risk of overdose into the shadows. That could make it more challenging for Central City Concern’s outreach workers to check in with people living outside and connect them to treatment – or reverse an overdose in real time.

“Sure, drug use and overdoses may be less visible, but we could just be pushing overdoses into hiding,” he said.

City council will discuss the policy Wednesday morning. All five commissioners are expected to support the proposal.

Alex Zielinski