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Walsh v. Enge

United States District Court, D. Oregon

May 5, 2017

JOSEPH WALSH, Plaintiff,
v.
BRYANT ENGE, et al., Defendants.

          Joseph Walsh, pro se.

          Harry M. Auerbach, Chief Deputy City Attorney, David A. Landrum, Senior Deputy City Attorney, and Daniel A. Simon, Assistant Deputy City Attorney, Of Attorneys for Defendants.

          OPINION AND ORDER

          Michael H. Simon, District Judge.

         The Court previously granted injunctive and declaratory relief in favor of Plaintiff Joseph Walsh (“Walsh” or “Plaintiff”) against the City of Portland's (“City”) then-existing exclusion ordinance, Portland City Code § 3.15.020B.5.b. That ordinance allowed Defendants prospectively to exclude persons from City Hall and City Council Chambers solely based on past incidents of disruption during City Council meetings. The Court held that on its face, this ordinance violates the First Amendment to the U.S. Constitution. Walsh v. Enge, 154 F.Supp.3d 1113, 1118 (D. Or. 2015). Based on that finding, the Court permanently enjoined Defendants from directing or enforcing any prospective exclusions pursuant to the ordinance. After the Court issued its ruling, the City enacted a new exclusion ordinance, Ordinance 188280 (identified by Plaintiff as Ordinance #255) (“New Exclusion Ordinance”). Walsh now requests that the Court “enforce” the Court's previous injunction against the New Exclusion Ordinance. Walsh argues that by enacting the New Exclusion Ordinance, the Portland City Council violated the Court's injunction. For the following reasons, the Court denies Walsh's motion.

         BACKGROUND

         A. The Court's Injunction

         The Court's injunction in this case, entered on December 31, 2015, states:

Defendants, each of them and their agents and employees, and all those in active concert or participation with them, shall not direct or enforce any prospective exclusions pursuant to Portland City Code § 3.15.020B.5.b and the City's “Rules of Conduct for City of Portland Properties, ” solely based on past incidents of disruption during City Council meetings.

ECF 30 at 1.

         B. The New Exclusion Ordinance

         On March 15, 2017, the Portland City Council adopted the New Exclusion Ordinance, which, among other things, establishes rules of conduct and ejection and exclusion procedures for City Council meetings and City property. The New Exclusion Ordinance became effective 30 days after its passage, on April 14, 2017. ECF 41 at 2, ¶ 4. The New Exclusion Ordinance amends certain sections of the City Code relating to duties of the presiding officer, conduct at meetings and on City property, and ejection and exclusion. See ECF 41-1 at 1-3.

         The New Exclusion Ordinance adds Section 3.02.060 “Rules of Conduct at City Council Meetings, Ejection and Exclusion, ” which allows the presiding officer or his or her designee to warn a person engaging in disruptive behavior and then to eject that person if the behavior continues. If a person has previously been ejected for dangerous or threatening behavior or for disruptive behavior on three or more occasions, that person “shall” be excluded from future City Council meetings for 30 days. If the person has been excluded from City Council meetings on one or more occasions within one year, that person “shall” be excluded from future City Council meetings for 60 days. A person excluded may appeal the exclusion to the Code Hearings Officer. The appeal must be in writing and made within five days of the issuance of the exclusion notice. This code of conduct also applies to any public meeting of a City board or commission. See ECF 41-1 at 6-8.

         The New Exclusion Ordinance also adds Chapter 3.18 “Rules of Conduct for City Property.” This chapter grants the power to order persons to leave City Property to peace officers, reserve officers, persons providing security services under a contract with the City, City bureau property or facility managers or designees, the director or manager of a City bureau facility or office space or designee, certain specific designees, the Mayor, Commissioners, and Auditors, as “persons-in-charge.” These rules of conduct include numerous provisions regarding the type of materials that may be brought onto City property, how materials and technology that exist on City property may be handled, how persons must obey all reasonable directions of persons-in-charge, how persons may not interfere with free passage of City employees or authorized visitors, noise restrictions, alcohol and controlled substance restrictions, animal restrictions, restrictions on wheeled devices, camping restrictions, and general use restrictions. See ECF 41-1 at 11-14.

         If a person violates any of these rules, a person-in-charge may eject them for 24 hours. In addition, the director of the bureau assigned property management responsibility where the violation occurred, or his or her designee, may issue an exclusion from City Property for any period of time up to one year. The person excluded may appeal the exclusion to the Code Hearings Officer in writing within five days of the issuance of the exclusion notice. If, however, public meetings of City Council or boards or commissions are held on a ...


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