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Volokh Conspiracy

Urinating in Public "Discarding or Depositing Any Rubbish, Trash, Garbage, Debris or Other Refuse"

Oregon law apparently doesn't ban public urination -- but it does ban littering, especially when it "create[s] an objectionable stench."


Ryan Corcilius was therefore convicted on the theory that his urinating in public constitutes "offensive littering"—but the Oregon Court of Appeals just reversed the conviction by a 2-to-1 vote, with the majority concluding that ordinary urination doesn't constitute "[d]iscarding or depositing any rubbish, trash, garbage, debris or other refuse." Here's a short excerpt from the quite long majority opinion:

"Discard" means "to drop, dismiss, let go, or get rid of as no longer useful, valuable, or pleasurable." Webster's Third New Int'l Dictionary 644 (unabridged ed 2002) (emphasis added). The act of urination, however, is a bodily function in which urine is eliminated; it does not function to get rid of something that is "no longer useful, valuable, or pleasurable." That is, urine is not something formerly useful that one chooses to get rid of. Rather, one discharges urine, rather than discarding it. See id. at 2522 (defining "urinate" as to "discharge urine"). Hence, the ordinary meaning of "discarding" does not include the act of urinating.

If the act of urinating is not an act of "discarding," then is it an act of "depositing"? The definition for "deposit" has multiple senses, and, because the state characterizes urinating as a "natural process," it posits that the best sense of "deposit" is the one that means "to lay down or let fall or drop by a natural process." Id. at 605. That sense of the word, however, is ill-suited to the act of urination and not the way we would expect the legislature to describe that act. The illustrations for that sense of the word are: "the intervening seasons had deposited a thick layer of refuse over the vacant lot"; "the wind deposited a film of dust over the furniture"; and "in … hogs fed on copra … the cocoanut oil globules had been deposited by nature in the tissues—V. G. Heiser." (Emphases in original.) Id. Those illustrations suggest a natural process that is often gradual and not a result of an individual's personal act, very unlike the process of urination. Again, we doubt that the legislature would have understood terms more commonly associated with littering to capture the act of public urination.

And an excerpt from the dissent (which is also long):

Taking into account the statutory terms' broad dictionary definitions, along with the legislature's use of the word "any," I conclude that the common characteristic of all the statutory terms—including the general term "other refuse"—is that they describe, in varying ways and with different emphases, material that lacks value or is "waste."

I turn to a consideration of statutory context. Significantly, the legislature has specified that a person's improper discarding or depositing of refuse constitutes offensive littering only if it "creates an objectionable stench or degrades the beauty or appearance of property or detracts from the natural cleanliness or safety of property." The majority focuses on dictionary definitions that describe items or objects that may constitute "rubbish, trash, garbage, debris or other refuse." But the legislature's attention to offensive smells and lack of cleanliness strongly suggest that it was not concerned only with the improper discarding of those kinds of objects. Smells and uncleanliness often are associated with liquid materials, even (or perhaps particu-larly) those liquids—like urine—that may dry and leave an offensive and unsanitary residue. That context, too, leads me to conclude that the term "refuse" should be construed broadly to include any waste material that is susceptible to being improperly discarded or deposited in a way that causes uncleanliness or an objectionable stench.

Finally, here are the undisputed facts:

Defendant was on a cross-country road trip and, coming from California, stopped in downtown Portland late in the day. By the time he got to Portland and parked, it was already an "emergency" for him to use a restroom. He attempted to use a gas station restroom, but was informed that it was not available to the public. He then tried a Subway restaurant, but that restroom was available only to paying customers and the line for sandwiches was long. He began to panic because of the intense pressure of having to urinate. He found a spot that he believed was secluded and urinated on the side of a building.

Sam, employed by a private security company engaged by local businesses to help enforce city ordinances and assist with nonemergency situations, saw defendant urinate and observed the urine flowing across the sidewalk toward the street. Sam knew it was urine because of the stench. Sam approached defendant, and defendant responded, "I couldn't find a better spot." Sam then radioed a police officer, who arrived shortly thereafter and issued defendant a citation for misdemeanor offensive littering, a Class C misdemeanor

Note that some Oregon cities have ordinances expressly banning public urination, but I couldn't find any Oregon state statute that does so.