City of Portland v. Bitans

• Decision Date: 31 January 1990
• Citation: 786 P.2d 222,100 Or.App. 297
• Parties: CITY OF PORTLAND, Respondent, v. Ivars BITANS, Appellant. DA 346251; CA A48349.
• Court: Oregon Court of Appeals

Page 222

786 P.2d 222

100 Or.App. 297

CITY OF PORTLAND, Respondent, v. Ivars BITANS, Appellant.

DA 346251; CA A48349.

Court of Appeals of Oregon.

Argued and Submitted June 2, 1989.

Decided Jan. 31, 1990.

Henry Kane, Beaverton, argued the cause and filed the briefs, for appellant.

Linda DeVries Grimms, Asst. Atty. Gen., Salem, argued the cause, for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

NEWMAN, Judge.

Defendant appeals his conviction for attempting to block and interfere with a pedestrian along a public sidewalk with intent to interfere with her free passage. Portland City Code Section 14.20.060. ¹ The city's complaint charged that

"defendant * * * did unlawfully, with the intent to interfere with free passage, attempt to block and interfere with persons along a public sidewalk."

He assigns as errors that the court overruled his demurrer to the complaint, denied his motion for an evidentiary hearing on his assertion of discriminatory enforcement of the ordinance, found him guilty on insufficient evidence and convicted him for behavior that is constitutionally protected. We affirm.

The court could have found these facts. Marsha Spellman attended a weight loss clinic in the Portland Medical Center Building, in which there was also a clinic that performed abortions. The front of the building is located on the west side of S.W. 10th Avenue on approximately the northeast quarter of the block between S.W. Washington Street and S.W. Alder Street. On June 12, 1987, on the sidewalk in front of the building, defendant and others were demonstrating and distributing leaflets in opposition to abortion. As Spellman left the building after visiting the weight loss clinic, defendant handed her a leaflet. She tore it in two and threw it down. She turned and walked south along the sidewalk on the west side of 10th Avenue in order to cross the avenue at the corner of S.W. Alder Street.

As Spellman walked south toward the corner, defendant left the area where the other abortion protesters were, came running after her and shouted, "Are you having a snit fit?" Spellman turned around and saw defendant jumping up and down about six to eight feet behind her. She turned back and continued toward the corner. When she arrived at the corner and while she waited for the light to change, defendant jumped up and down in a partial circle, about 12 to 18 inches from her. When police officers approached, defendant stopped jumping. The officers arrested him.

Defendant assigns as error that the court overruled his demurrer in which he had asserted that the ordinance was unconstitutionally vague and also overbroad on its face. ² We address the state constitutional issues first. State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983).

A statute is vague if it fails "to notify potential defendants of its scope and reach." State v. Hodges, 254 Or. 21, 27, 457 P.2d 491 (1969). This ordinance is not vague. Our conclusion is the same under the federal constitution. See Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972).

The ordinance is not by its terms directed at the substance of any opinion or subject of communication. See State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982); State v. Harrington, 67 Or.App. 608, 680 P.2d 666, rev. den. 297 Or. 547, 685 P.2d 998 (1984). Instead, it is expressly directed only against an effect--blocking or attempting to block or to interfere with any person on a public sidewalk with the intent to interfere with her free passage. Subsection (d) provides that the ordinance "shall not apply to any activity otherwise made lawful." See City of Portland v. Gatewood, 76 Or.App. 74, 708 P.2d 615 (1985), rev. den. 300 Or. 477, 713 P.2d 1058 (1986). The ordinance, therefore, is not overbroad on its face. Our answer is the same under the federal constitution. See Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

Defendant also asserts that the ordinance as applied to his conduct is unconstitutional, because it imposes a criminal penalty on conduct associated with expression. He argues that a person exercising rights of expression should not be punished under the ordinance. Even assuming that defendant's argument could be correct in some circumstances, it is inapplicable here. The court could have found that, when defendant jumped up and down near Spellman at the corner of S.W. 10th Avenue and Alder Street, he was attempting to block and interfere with her along a public sidewalk and did so with intent to interfere with her free passage. There was no evidence from which the court could have found that at that time defendant was carrying a sign or placard or was trying to hand a leaflet to Spellman or to speak to her.

On January 18, 1988, defendant moved on state and federal constitutional grounds for an evidentiary hearing on his claim that the city had enforced the ordinance against him in a discriminatory manner. ³ The court stated that it would postpone a decision on the motion until after it had heard the evidence at trial but that it would not find guilt or innocence until it had ruled on the motion. Defendant did not object. At the close of trial on January 28, the court asked the parties to submit briefs on whether it should hold an evidentiary hearing. On March 18, without a hearing, the court denied the motion. It stated that defendant had failed to establish a "prima facie" case sufficient to raise a reasonable doubt about the prosecutor's motive in prosecuting him.

Defendant assigns as error that the court did not grant his motion. He asserts that the court should have held a hearing on the basis of the affidavits that he submitted with his motion. Although defendant based his claim of discrimination on both Article I, section 20, and the Equal Protection Clause of the 14th Amendment, he does not argue that the former should be construed differently from the latter and, for purposes of this case, we will treat the reach of the constitutional provisions as the same.

To make out a claim of discrimination on the basis of selective prosecution, a defendant must establish that (1) the prosecutor has not prosecuted others similarly situated for § milar conduct and (2) the decision to prosecute was based on impermissible grounds, as, for example, race, religion or the exercise of constitutional rights. See Jarrett v. U.S., 822 F.2d 1438, 1443 (7th Cir.1987); State v. Freeland, 295 Or. 367, 375, 667 P.2d 509 (1983); City of Eugene v....