Does Oregon law really give you the right to smoke fentanyl in public?

One of the excuses the mayor of Portland is giving for not putting an ordinance in place prohibiting hard drug use in public places is that such an ordinance is, or at least may be, forbidden by state law.  He's got other excuses, too – like Measure 110 is going to take care of the fentanyl crisis – but I couldn't believe my ears when I heard him say state law blocks the city from outlawing hard-core drug use on the streets and in the parks. Does Oregon law really say such a crazy thing?

The people telling the mayor this are apparently pointing to Oregon Revised Statutes section 430.402, which has been on the books in one form or another for 52 years. Originally it dealt only with alcohol, but it was amended, two years into its life, to also address "narcotics" and "dangerous drugs," which were renamed "controlled substances" in 1977. Cannabis was added to the picture in 2017.

I'm looking at that statute, and to me there's no way it stops cities from banning outright the use of fentanyl, heroin, cocaine, or any other drug, including cannabis, in public places.

Here's what it currently says:

(1) A political subdivision in this state shall not adopt or enforce any local law or regulation that makes any of the following an offense, a violation or the subject of criminal or civil penalties or sanctions of any kind:

(a) Public intoxication.

(b) Public drinking, except as to places where any consumption of alcoholic beverages is generally prohibited.

(c) Drunk and disorderly conduct.

(d) Vagrancy or other behavior that includes as one of its elements either drinking alcoholic beverages or using cannabis or controlled substances in public, being an alcoholic or a drug-dependent person, or being found in specified places under the influence of alcohol, cannabis or controlled substances.

(e) Using or being under the influence of cannabis or controlled substances.

(2) Nothing in subsection (1) of this section shall affect any local law or regulation of any political subdivision in this state against driving while under the influence of intoxicants, as defined in ORS 813.010 (Driving under the influence of intoxicants), or other similar offenses that involve the operation of motor vehicles.

Now, we're not talking about being intoxicated, drunk, or disorderly here. The city said it wanted to ban the use of the drugs even by people who are still sober for the moment. And we're not talking about motor vehicles, either, and so we can weed sections 1(a), 1(c), and 2 out of the picture. That leaves us with 1(b), 1(d), and 1(e). At the risk of being tedious, here they are again, isolated:

(1) A political subdivision in this state shall not adopt or enforce any local law or regulation that makes any of the following an offense...:

(b) Public drinking, except as to places where any consumption of alcoholic beverages is generally prohibited.

(d) Vagrancy or other behavior that includes as one of its elements either drinking alcoholic beverages or using cannabis or controlled substances in public, being an alcoholic or a drug-dependent person, or being found in specified places under the influence of alcohol, cannabis or controlled substances.

(e) Using or being under the influence of cannabis or controlled substances.

Now, subsection (e) looks like it might invalidate the Portland ordinance-that-never-was. You could read it as saying that cities can't criminalize any use of controlled substances, anywhere, any time – that everyone has the right to use drugs wherever they please unless state law says otherwise. But come on. The city can't tell you you can't shoot up heroin at a City Council meeting? The city can't tell you you can't smoke fentanyl on a crowded bus, or in a hospital, or next to a tank of flammable liquid? I can't imagine that that's what the legislature intended. 

Place restrictions are not the same as making use of drugs, in and of itself, a crime. The city ordinance I was hearing about wouldn't have forbidden all consumption of controlled substances, just consumption in public places. That sort of regulation doesn't seem to be blocked by subsection (e).

Compare it to drinking. In subsection (b), the legislature is clear that the city can ban public drinking, but only if the ordinance completely forbids all types of alcohol in particular places at all times. The state supreme court ruled in 2019 that as long as a public space is designated as off-limits for alcohol 24/7/365, a city (in that case, Beaverton) could ban drinking there and not run afoul of this statute. But a city can't tell you what kind of alcohol is okay and what kind isn't, and it can't tell you what time of day you can and can't drink in a given place. Those rules are left up to the state.

Do you think the state legislature, when it passed subsection (e), was thinking that the cities should have less leeway in saying where cocaine can be snorted than in saying where someone can quaff a beer? As the lawyers say, it strains credulity. And note: The legislature covered consuming intoxicants in public in subsection (b), and it didn't mention controlled substances there at all.

Which brings us to subsection (d), which does specifically talk about use of controlled substances in public. It says that the city can't criminalize "[v]agrancy or other behavior that includes as one of its elements either drinking alcoholic beverages or using cannabis or controlled substances in public." To me, the key here is the phrase "one of its elements." Under the statute, public drug use can't be an element of a crime of "vagrancy or other behavior." But the Portland ordinance I was hearing about wasn't about vagrancy or other behavior of which drug use was a part. To violate the ordinance, all you would have had to do was use the drug in public, period. No other "element" of "behavior" was involved, and you'd be guilty whether you were a "vagrant" or not.

Enough lawyering. Suffice it to say, I'm not buying the story that state law had much to do with the City Council chickening out on a public drug use ordinance. They could have, and should have, passed one. If a visit to the state supreme court would have been necessary to make it stick, they certainly know how to go there.

Meanwhile, the bobbleheads we send to Salem ought to be held accountable for any ambiguity in state law that is holding up progress. They need to step up and make the statute absolutely, 100 percent clear: There is no right under Oregon law to smoke fentanyl in public if the city says no, any more than there is such a right to drink alcohol in public if the city says no. The next time the legislator types come by grubbing for your vote, give them a hard time about this.