Is it illegal to ride in Waterfront Park after hours? — UPDATED

Notice of Exclusion written to
Matt Cleinman for trespassing
in Waterfront Park.
Larger version (90kb jpg) –

At 4:30 am this morning, a Portland Police officer issued a Portland man a notice of exclusion and warning for trespassing because he was riding his bicycle through Waterfront Park while the park was closed.

Matt Cleinman, a 25-year old resident of Northwest Portland was biking home from work when he came upon a Portland Police Officer who he says was “rousing homeless folks” under the Burnside Bridge. Cleinman, who told us he is very concerned about “criminalizing homelessness” says he then stopped his bike to ask the officer what was going on.

“I very politely asked the officer, ‘Do you mind me asking what’s happening?’ He told me the park was closed and these people were trespassing. Then, before I could respond, he added, ‘And so are you, do you have any ID?”

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At that point, Cleinman says the officer began writing him up a warning and exclusion that says he is prohibited from entering the park for 30 days. If Cleinman disobeys the warning, he could be arrested for trespassing.

Portland City Tour ride -19

The path in Waterfront Park.
(Photo © J. Maus)

Cleinman tells us he asked the police officer if the park being closed (it is officially closed from midnight to 5:00 am) meant that the trail was also closed. “Yes” the officer told him.

Cleinman is now confused about whether or not the officer was right.

The issue comes down to whether or not Waterfront Park is considered a transportation corridor. If it is, the pathway cannot be closed and the police officer in this case is wrong. We have dealt with a similar issue on the Springwater Corridor and Eastbank Esplanade. Both of those facilities are officially recognized as transportation corridors because they were paid for by federal transportation funds. As such, they must remain open 24 hours a day.

In December of 2008 City of Gresham officials decided to close the Springwater at night, but later changed their stance after the FHWA pressured them to reverse the decision. Now, the park around the pathway is closed at night, but the path itself remains legally open for transportation use. (In other words, as long as you’re actively passing through, you’re O.K., but once you start loitering, it’s trespassing.)

Cleinman plans to appeal the exclusion.

UPDATE: 1:10pm
Portland Parks PIO Beth Sorensen says Waterfront Park is not officially considered a transportation corridor. It was not funding through federal transportation funds. Therefore, the pathway technically closes to everyone between midnight at 5:00am.

Here’s full statement from Sorensen:

“You both [Sarah Mirk from the Portland Mercury and I] inquired about the rules regarding the paved path along the riverwall in Waterfront Park, specifically whether or not that path is an official transportation corridor.

The answer is no, that route was not funded with federal dollars and is not a designated transportation corridor. Therefore, the park closure hours, 12:01 a.m. to 5 a.m., apply. There are viable alternatives for both cyclists and pedestrians along SW Naito Parkway, including a sidewalk and bike paths.

This is not a rule we actively enforce, unless there is an incident involved. Typically, PP&R rangers, PPB and PPI would respond to specific incidents which occur in parks, including Waterfront Park. Not knowing the specifics about this incident, I would recommend you call Mary Wheat at PPB [Portland Police Bureau].”

In the case of Matt Cleinman, his appeal will likely come down to whether or not the police officer feels Cleinman’s questioning and inquiries qualify as an “incident”.

UPDATE 2:11pm
We asked Parks PIO Sorensen about how people are supposed to access the Steel Bridge lower deck path if Waterfront Park is illegal (Sorensen has said that Parks is not “impeding anyone” by closing the trail at night because there are bike lanes and sidewalks on Naito that can be used as alternate routes).

Sorensen was interested to learn about the Steel Bridge issue and said she could do some checking to see whether or not Parks could make a specific transportation easement across the Park so people could access the lower deck of the bridge.

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Patty
Patty
12 years ago

Even if the trail is not considered a transportation corridor (this designation comes with federal funds for trails), it should be considered open and usable at night.

Marcus Griffith
12 years ago

Anyone else trouble by the fact that numerous people bike through there at night and the police don’t care about it until someone asks about unusual police activities?

chasingbackon
chasingbackon
12 years ago

move along, nothing to see here.

hank2125
hank2125
12 years ago

He’s lucky he didn’t get the beanbag treatment.

naomi
naomi
12 years ago

If you see a cop ticketing someone, the last thing you should do is saunter on over to them and start asking them what they’re doing and why they’re ticketing people. Avoid cops, do not approach them, let them approach you.

And I’m going to go out on a limb here, but this story doesn’t sound quite right. The cyclist didn’t display any sort of negativity or hostility toward the cop? If the cyclist takes this route home each night after work, clearly he/she should’ve been aware that cops regularly ticket people hanging in this area almost nightly. I know because I also take this route each night around 2am.

Thomas Le Ngo
Thomas Le Ngo
12 years ago

@chasingbackon: Or inversely from Cleinman’s perspective, “these aren’t the homeless people you’re looking for.”

Thomas Le Ngo
Thomas Le Ngo
12 years ago

So the big question now is whether the trail construction was funded by any federal money similar to TE. TE wasn’t around until the 1990s, though. And Waterfront Park has been around since the 1970s.

Dave
12 years ago

I’d be amazed if that citation holds in court. I’d also be amazed if the waterfront path is really considered by anyone (except disgruntled officers) to be closed at any time. Do you know what the case is for the Esplanade? Seems like they’re basically considered as complimentary paths on opposite sides of the river.

JE
JE
12 years ago

Camping in the park and/or under the bridges is against the law. It is not “criminalizing homelessness” or “unusual police activities.”

The question of whether or not it is a transportation corrider is interesting. And what about the Esplanade as well?

Mark C
Mark C
12 years ago

4:30 in the morning is actually one of the best times to ride through Waterfront Park (or the Esplanade). During the day you’re guaranteed to encounter clueless pedestrians, joggers, or cyclists who think they’re the only ones using the path.

RyNO Dan
RyNO Dan
12 years ago

So, was he “actively passing through”, or not ?
I’m guessing that the judge would say that this user has stopped, and was no longer actively passing through, and thus
exposed to tresspassing.
But the cop should have definitely given him a chance to go on his way. As described, the cops duckish behavior is completely believable. Regards,

Mike Quigley
Mike Quigley
12 years ago

Down in Eugene some guy was arrested and fined for plugging quarters into expired parking meters. I guess Oregon cops have nothing much to do. How about laying off about half of them? Saves money and makes for a better ratio between cops and real criminals.

SkidMark
SkidMark
12 years ago

I’m pretty sure you can appeal the exclusion, citing that you use the path for transportation to and from work.

mark
mark
12 years ago

Mr.Cleinman,
Can you send your home address to the police so they can send the homeless to camp out in your yard. I don’t want them in my city.

Adams Carroll (News Intern)

Just published an update which you can read at the bottom of the story.

It all comes down to how the paths were funded. If federal transportation $ is used the path cannot ever be closed to traffic.

The Esplanade was built with federal transpo. funds and therefore must remain open.

However Waterfront Park was not funded with federal transpo funding so it is technically closed to ALL USERS from midnight to 5am. That being said, Parks and the Police will not ticket you if you are riding through.

However, if you stop and an officer feels the need to ticket you, they would be correct in that you are technically trespassing.

Daniel (teknotus) Johnson
Daniel (teknotus) Johnson
12 years ago

How are you supposed to get to the lower deck of the Steel bridge if you can’t enter the park? And as far as I know that was paid for by transportation funds.

Michael42
12 years ago

A classic example of being punished for “contempt of cop.”

Jim F
Jim F
12 years ago

He got what he deserved. Leave the cops alone when they are doing their job (which involves enforcing the law, not bowing down to your liberal politics) (and I am a liberal).

naomi
naomi
12 years ago

Yes, the cop was being a dick. But the cyclist was being antagonistic. Why would you stop and ask why the cop is ticketing someone else? What business is it of yours? Keep riding, avoid the hassle (and the ticket for trespassing). If you want to fight for homeless rights, there are better ways to do it.

Esther
Esther
12 years ago

thanks for your question Dan.

re: the original “incident”: When I see what appears to be a police officer targetting an indigent, homeless, or mentally ill person, or person of color, I stop and watch. I don’t interact, don’t interfere, and I’ve fortunately never witnessed something that was outright wrong. Criminalization of homelessness (which yes, this it is; it’s cruel and unusual to wake people up at 4:30am for gods sake! That’s in the middle of the circadian trough/sleep cycle!) is unfortunately systemic, ongoing and every day. It is probably better to donate and volunteer with an agency like Nrothwest Pilot Project, Transition Projects Inc., Sisters of the Road, and Central City Concern than to try to be a western style maverick singlehandedly attempting to stop cops from rousting homeless people (who are LIVING, not just “camping.”) Whether this guy deserves a ticket for being an attempted mavericky maverick is another question, but fortunately I don’t think this problem has a long-term bearing on cycle access to the waterfront…

Michael42
12 years ago

@Jim F

Yeah, heaven forbid mere *subjects* dare to even address the enforcers, much less ask what’s going on.

JR
JR
12 years ago

I don’t like the issuing of a ticket for simply questioning the officer. I also don’t like the ability of an officer to issue a ticket for riding a bike through this or any other park. The City needs to realize that bike paths through parks are a form of transportation. I avoid biking the streets at night because of all the drunk drivers and the difficulty of being seen by drivers who are actually sober. Bike paths through parks provide a safer means for me to get home. That shouldn’t be a crime.

q`Tzal
q`Tzal
12 years ago

Waterfront Park might be officially closed from 12:00am to 5:00am but unlike Gresham trying to shut down the Springwater Corridor by closing off the East Gresham Park the Waterfront Park area can not be physically secured in its current condition. It would need to be fenced off in its entire perimeter with gates that lock at every entrance.
So, by default, the park is open 24/7.
Perhaps there is some legal precedent that shows that enforcing the unenforceable is prohibited or at least not advised.

OTOH, approaching a lone police office who’s otherwise engaged it police work is ill advised. Doing so after dark on a bike, which can be nearly silent, is asking to have a gun drawn on you. If the police officer had been surprised he, or she, would have had a good reason to draw their weapon. This could have gone much worse.

Next time, show up with more people and a camera phone that posts live to YouTube.

Esther
Esther
12 years ago

Although, on the other hand- this could be a good opportunity to talk to parks & rec about officially opening transportation through parks. I can easily think of a few parks that come in handy for crossing – Columbia, Skidmore, Laurelhurst. Although, again, pragmatically, I can’t envision an uptick in pointless ticketing in the middle of the night?

Dave
12 years ago

Esther: that’s a good point – I think it could be an interesting discussion to have about making paths through parks officially noted as transportation paths as well – it seems like that would be a step towards portraying cycling (and gasp! walking) as real means of transportation.

I think Copenhagen designs “green routes” through the city that go through parks and such, and are officially listed as bikeways, simply to give people more pleasant routes to take if they decide they don’t want to ride on the on-road facilities.

Ethan
Ethan
12 years ago

Typical (bad apple) cop behavior. If anyone questions what you are doing, cite them.

ScottG
ScottG
12 years ago

Perhaps the BTA and Willamette Valley Ped Coalition would be willing to get involved in reversing the city ordinance or other rule that closes the park at night? I’m happy to lend my support to that via letter writing to the appropriate officials.

red hippie
red hippie
12 years ago

Interesting article that really hits on the periphery of on a couple of issues. First of all the cops have a really tough job balancing priorities here. How do we keep the water front from turning into a permanent homeless camp? The cops have to go in an clean it out periodically and use the trespass ordinance. I suspect the cyclist (or any other) would not of had a problem as long as he did not make it blatant that he was there. Riding through there every morning, I know the cops don’t routinely clean people out. So this really comes down to a quality of life issue, so in this case I commend the cops and if I’m riding through, I’ll just keep going with a nod to the officer.

ILikeYourNewHaircut
12 years ago

Next time, also get his badge number.

Michael M.
12 years ago

red hippie (#28) – To answer your question: build affordable housing.

q`Tzal
q`Tzal
12 years ago

Perhaps there is some esoteric legal reason why it is cheaper to close a park for some portion of the day?
Probably required to provide staffing for an officially proscribed night shift if a park is officially open for the entire portion of the shift in question.

chelsea
chelsea
12 years ago

It seems wrong that citizens are not allowed to politely question the activities of the people who are supposedly protecting them. The suggestion to look the other way when concerned about injustice potentially taking place has led to a lot of unfortunate things, historically speaking.

well
well
12 years ago

Well perhaps is Mayor Adams had guts to manage the Police Bureau like nearly every other past mayor we might expect more fair treatment of cyclists but oh well…

Vance Longwell
12 years ago

The 6th amendment to the Constitution of the United States requires that due-process be afforded Mr. Cleinman prior his being sanctioned. Since these exclusions are a ban from public property, a court proceeding is required to do so.

These exclusion orders violate the 6th amendment. Here is an opinion by the Oregon Appellate Court regarding a similar case with Calvin Carpenter (Statue Man), and Portland’s Pioneer Courthouse Square, also a park.

http://www.publications.ojd.state.or.us/A106786.htm

The opinion is clear at the bottom of the page under the ruling. This court ruled that an exclusion-order in Carpenter’s case was illegal. Carpenter caught a trespassing-charge after willfully violating the exclusion order. The court found the predicating exclusion unconstitutional.

I tried to file kidnapping charges against the armed security-guard masquerading as a Portland Police Officer who issued the citation to me on private property. The DA at the time (4/24/07) refused to accept my charges (Something I now know is illegal.)and sent me away with threats of violating said order.

I was banned from the City building, public sidewalks, public-schools, public medical facilities, and so on. All without a charge being leveled against me. All without my day in court. No appeal, just summary execution of a sentence, and I hadn’t even done anything wrong.

The MUP in Waterfront park is sidewalk. It’s not a transpo corridor, it’s not really even a park. Any reasonable human-being will observe this MUP and conclude that it’s a sidewalk. There are not hours posted, and no real notification that that is a park, that there are rules, and when they will, or won’t be enforced. You can’t just ban somebody from public property without a trial City of Portland.

Careful too, I was issued my exclusion by an armed security guard working for Oregon Campus Services. They’ll tell you they are cops but they are in the employ of the school, and don’t belong to the Police Union. A DPSST ticket does not a cop make. So, I was issued an illegal citation by an armed private citizen, on private property, all while being kidnapped.

City of Portland: The Portland Business Alliance is not an elected body. You service all of Portland, not just the draconian policies of a few downtown area small business owners. Enough, “Cleaning up downtown”, already.

Here’s a re-post at my blog on the subject in case there’s anything helpful in there.

http://vancelongwell.blogspot.com/2009/03/so-youre-just-walking-along-minding.html

Matt Picio
12 years ago

Even though the path is not a DESIGNATED transportation corridor, an argument could be made in court that it is a de facto transportation corridor based on use, and based on the fact that people have been walking / running / riding through it for years with little or no enforcement to the park hours. A sympathetic judge could potentially so rule.

Matt Picio
12 years ago

naomi (#19) – All it takes for our rights to be taken away is for average citizens to stop questioning authority and passively accept whatever said authority proposes is in the public interest. Since when did it become a crime to question authority and ask people to justify their actions?

red hippie (#28) “How do we keep the water front (sic) from turning into a permanent homeless camp?” – well, provide them someplace sheltered to sleep at night, rather than criminalizing homelessness would be a good start. The economy sucks – homelessness is a predicament which will become MORE prevalent, not less – and we need to start coming up with humane, equitable, and compassionate means of dealing with and accommodating it. Put simply, we care about people instead of yelling at them to get off our lawn while holding a shotgun (which is effectively the strategy the city has chosen).

Michael M (#30) – Affordable housing generally doesn’t work – unless people start letting government raise taxes to pay for services and programs, there’s no effective way to pay for it.

Vance (#33) – I know this is rare, but I agree with pretty much everything you just said. The exception being the posting of hours – there is a sign at most, if not all of the sidewalk entrances to the park, including the end of the Steel Bridge. I think you’ll join me in finding it ironic that it’s perfectly legal to be on the Steel Bridge walkway (which is private property owned by the Union Pacific RR) at 2am but illegal to stand 5 feet away on the sidewalk that rests on public property “owned” by the City of Portland.

Vance Longwell
12 years ago

Agreed MP #36 – My whole post is a mess, sorry folks. I have a lot to say on this issue, and am having a hard time constraining my exuberance. The idea I was trying to impart was that legally-speaking I think a reasonable person might mistake that path for a sidewalk. Should have just left it at that. Sorry.

By the way, tickets or citations, are actually court affidavits. In my case, Campus Security was just whipping these up with MS/Word or something. So be sure that citation is actually real, and not just something their precincts give them to scare people with.

I will endeavor to write coherently even when I get all worked up. Do some research on this folks, and you won’t like it one bit. The fuzz, and the DA, and the PBA are all off their collective chains, and it doesn’t take a degree in advanced wing-nut to see it.

Vance Longwell
12 years ago

This is so Portland-of-old here. An ugly underbelly that has always existed. The crazy stuff people enter into trying to get spangers off the street is monstrous. Portland has such a liberal rep these days, too funny, ’cause it ain’t.

As late as the mid-nineties there were still, “rainers”, installed on the side of every business in town that had a property-line abutting the sidewalk downtown. Anybody remember those? That’s where you take a long, small-diameter pipe and drill it full of holes. Then you hang that on the wall of your business overhanging the sidewalk underneath, attach a garden hose, and viola, no bums.

I’ve always hated this about Portland. Downtown is not your mall fools. If you can’t seem to do business down here, move. What ever you decide, stop hassling poor people!

matchu
matchu
12 years ago

That’s odd. Waterfront Park used to be “the highway” through Portland until the Interstate-5 corridor was completed in the 1960s. It was designated as a portion of the federal US-99W under the name Harbor Drive. Now, it’s illegal to operate a vehicle (i.e. the bicycle) through it during the late night or very early morning.

rex
rex
12 years ago

Vance, I had pretty much given up reading your posts, but you are making sense here.

BTW if matchu is right, that it was public right-of-way it likely still is unless it was specifically revoked.

We must always protect our right to public property. It is ours, and cops a supposed to protect our rights not abridge them.

naomi
naomi
12 years ago

Matt Picio #36: Yes, but there’s a place and time for that, rather than the somewhat typical Portland judging of most cops as guilty until proven innocent. 99.5% of the time, the cop likely has a reason for doing what they’re doing. Most cops are good, and as it turns out, he wasn’t out of bounds in writing a ticket for the folks in the park at that hour (dick move it was? Yes. Was the cop doing something wrong? no.)

How would you like it if people came in from off the street, up to your cubical (or office, or desk, or what have you) and began to question you about your job, what you’re doing, etc, etc? It’s silly to think we should all have the right to interfere with the police when they are speaking to someone simply so we can try to bust them as doing something wrong and pat ourselves on the back.

I’m not denying it was lame of the cop to ticket the cyclist, but it was also lame of the cyclist to stop at 4:30am and walk over to a cop and start asking him why he’s doing what he’s doing. It comes off as highly antagonistic.

Michael42
12 years ago

@naomi

Any citizen has the right to approach an officer and ask what’s going on. As long as they’re being civil and not interfering, it’s by no means antagonistic, nor “lame.”

naomi
naomi
12 years ago

I would consider it interfering and lame. Your average cop knows more about the law than your average citizen, any day. Doesn’t make them right 100%, but makes walking up to them and questioning them when they’re clearly busy with someone else come as antagonistic. A cop is trained to obey the law (and in most cases they do). When I fly on a plane I don’t barge into the cockpit and ask what they’re doing in there.. I think this town shows too little respect towards our PD. And, of course, in the end, the cop wasn’t doing anything wrong.. merely ticketing someone who was breaking the law by being in a park during the hours it’s closed.

Michael42
12 years ago

@naomi

And you can have that opinion if you want – but the public’s right to talk to officers and ask questions is kind of how journalism gets done, so you benefit from that “interference” every day.

Your cockpit analogy is incorrect and neither here nor there.

And in the end, the person who got ticketed wasn’t doing anything wrong either – he wasn’t interfering (police are rarely shy about arresting for that.)

But unlike the cop, he had no power to summarily punish someone for simply asking a question.

Michael42
12 years ago

@naomi

And you really ought to have a look at sites like http://carlosmiller.com/ and http://www.injusticeeverywhere.com/ before you automatically put too much faith in cops.

Then again, Portland was where cops staged the “HOW DARE YOU QUESTION OUR AUTHOURITAH MARCH” when one got investigated for shooting a 12-year-old girl with a beanbag shotgun, wasn’t it?

Seriously. Marching not because the cop was punished, because he hadn’t yet, but because mere mortals had the temerity to even question his judgment in using a less-than-lethal firearm round to subdue a 12-year-old.

Portland shows too little respect for the police? You’ve got to be joking.

Paul Johnson
Paul Johnson
12 years ago

If they’re going to close the Willamette Greenway at night, they should put signage or lane control signals to that effect at the enterances, per MUTCD/SHS.

wsbob
wsbob
12 years ago

Consider it from this perspective: There the cop is in the park at 4:30am, issuing citations for trespass to homeless folks trying to get a nights sleep. Clienman, at 4:30am rolls up to the cop, asking questions…politely he says…of the cop, ‘Do you mind me asking what’s happening?’.

(Yes, I wouldn’t be surprised at all if the cop thought Clienman was being a nosy busybody)

One question I’d have is, ‘Where were the homeless folks when Clienman asked his question of the cop? Maus doesn’t say anything about that in his story, but one can presume that they were right next to or in hearing and visual range of Clienman and the cop having their conversation.

Suppose the cop decides to not bother citing Clienman for trespass, even though if the homeless people are trespassing just by virtue of being in the park after hours, so must Clienman be also. Very possibly after Cleinman rode along on his way, the homeless guys would be complaining about them being cited but not the dude on the bike.

And Cleinman, if he’s the vigilant citizen he says he is, might well have been complaining to maus that he had proof the cop was unfair, because he issued trespass citations to homeless folks, while letting people like himself go free.

Note to bikeportland staff: Why is an illegible thumbnail of Cleinman’s alleged citation posted without a link that would present readers with an enlarged version they could read, to see for themselves that it’s actually the citation the caption says it is? If you’re afraid the public is going to take his address and phone # and do something with it that it shouldn’t….block that info out with your nifty photoshop skills.

Michael42
12 years ago

@wsbob

That perspective doesn’t work.

The hour of day or night is not relevant to whether Cleinman can ask the officer a question. Neither is whether he is or the cop thinks he is being annoying. Neither is the proximity of the other subjects, as long as Cleinman isn’t interfering with the officer’s ability to do his job with them, which obviously isn’t the case as he was not cited for that.

Doesn’t matter if the cop decided to not cite Cleinman for trespass. If he’d stopped, asked a question, and moved on he’d still be in motion. The point of this article is that in other areas it’s fine to ride through if the park is closed, and that this area is apparently an exception for some reason – or the cop just wanted to punish Cleinman for daring to ask him a question.

Apologize for the cop all you want, it still doesn’t make what he did to Cleinman not a punishment for contempt of cop.

Big Kahuna
Big Kahuna
12 years ago

RE: #20, I am not necessarily trying to defend the cops in this situation, but I think it’s a little absurd to call waking someone up for trespassing “cruel and unusual.” Let’s keep things in perspective here.

Adams Carroll (News Intern)

wsbob,

Here’s a larger version of the Exclusion Notice (I’ve also added a link to it in the story).

http://bikeportland.org/wp-content/uploads/2010/01/mattcleinmanexclusion.jpg