A demonstration on how to use fentanyl test strips is shown in this file photo. The strips can help identify the presence of fentanyl in the drug being tested, but not the quantity.
Kristyna Wentz-Graff / OPB
Portland Mayor Ted Wheeler has reversed his plan to introduce a ban on public drug use, acknowledging that it would have violated state law.
The policy would have criminalized the consumption of illicit drugs in public areas. Under current state law, possession of a small amount of illicit drugs is treated as a civil violation — not a criminal offense — and a $100 fine. Wheeler hoped this city proposal would crack down on what he called a “loophole” in the state law, created by the voter-passed Measure 110.
“Use of illicit drugs in public spaces — especially dangerous and highly deadly substances like fentanyl — create significant public safety and public health issues in Portland,” Wheeler said Tuesday. “While Measure 110 has challenged the way cities across the state address drug use, I believe the City of Portland has an obligation to do what we can to protect our community now.”
An older state law bars the city from creating its own ban. The decades-old law explicitly states that “a political subdivision in this state shall not adopt or enforce any local law or regulation” that makes “using cannabis or controlled substances in public” a crime.
OPB asked Wheeler’s office Thursday how his proposed ban would be allowed under the state law. On Friday evening, a spokesperson for the mayor wrote that “this statute is on our radar... We are working to determine the best mechanism to bring clarity around how this statute interacts with more recent state statutes related to cannabis and controlled substances.”
In a press statement, Wheeler said that his proposed ban would have “undoubtedly” been challenged in court due to this state law.
“Nonetheless, I was willing to take that fight to the courts, if necessary,” he said.
Portland Mayor Ted Wheeler at a city council meeting on May 31, 2023.
Kristyna Wentz-Graff / OPB
Wheeler said he’s instead confident that a new state bill will address his concerns with Measure 110. That legislation, House Bill 2645, makes it a criminal misdemeanor to possess one gram or more or five or more pills of any substance containing fentanyl, a synthetic opioid. This type of “Class A” misdemeanor comes with up to a year in jail or a $6,250 fine.
Wheeler said the bill “restores [the] necessary law enforcement tools that were envisioned in my own ordinance.”
Yet, the bill still allows Portlanders to consume small amounts of fentanyl in public without criminal penalties. A small dose of fentanyl goes a long way: According to the U.S. Drug Enforcement Agency, just two milligrams can be lethal.
Fentanyl overdose deaths have skyrocketed in Oregon, and across the country, in recent years as the drug has become cheaper and more accessible. This increase has coincided with the rollout of Measure 110, which gives people the option of receiving a fine or calling a hotline to be screened for substance abuse disorder if they’re stopped for using drugs in public. Portland police have been slow to enforce this new law in comparison to other law enforcement agencies. Portland police have issued less than 500 citations for drug possession under Measure 110 since February 2021.
Wheeler, who serves as the city’s police commissioner, expressed hope for future enforcement under the new bill.
“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.
Wheeler first announced the proposed drug use ban last week. The news raised concerns from people who work in substance abuse recovery programs who said that pushing drug use out of sight could make it harder to connect people with treatment. Others lauded the policy as a critical step toward improving livability in downtown Portland.
Portland City Council was scheduled to vote on the local drug ban policy Wednesday.