Portland Mayor Wheeler unveils a new public camping ban policy

After legal hangups skewered his first attempt, Mayor Ted Wheeler is giving a ban on outdoor camping in Portland a second try.

The new proposal limits the types of activities people experiencing homelessness can engage in while camping on public property. It does not outright ban public camping, nor does it limit camping to a certain time of day or location.

Wheeler called the plan a “small sliver” of the city’s overall response to homelessness.

“What this does is it gives us now some reasonable tools for people who just don’t want to work with us,” Wheeler told OPB. “People who refuse shelter, people who refuse services, who dig in and say, ‘Nope, I’m going to continue to camp in this public right of way.’ We now have some actual law enforcement tools to be able to address those kinds of issues.”

Wheeler’s proposal comes after a first attempt was scuttled last year.

The initial proposal was called a “time, place and manner” policy for the three different ways it addressed public camping. It prohibited camping between 8 a.m. and 8 p.m. on all public property. The “manner” addressed activities that campers were banned from doing while camping on public property during the allowed hours, like building a fire, using a propane heater, digging into the ground, or dismantling and selling bicycles.

Under that policy, people who violated the rules three times could be fined up to $100 or face up to 30 days in jail.

A legal challenge kept the original policy from going into effect in November.

A group of Portlanders experiencing homelessness sued the city for violating their constitutional protections against cruel and unusual punishment under the Eighth Amendment. Their lawyers argued that the policy violated a new Oregon law, House Bill 3115, which mandated that cities make “objectively reasonable” rules about when, where and how people can sit and lie outdoors on public property.

This state law is rooted in a 2018 ruling by the 9th U.S. Circuit Court of Appeals — whose jurisdiction includes nine Western states, including Oregon. That court ruled it was unconstitutional to penalize people for sleeping on public property if there are not enough shelter beds to accommodate a city’s homeless population. That is the case in Multnomah County, which has around 2,600 shelter beds — the majority of which are usually occupied — and an estimated population of 5,000 people living outside.

A Multnomah County judge approved the lawyers’ request to put the city’s camping policy on hold. In her ruling, Judge Rima Ghandour did little to explain her decision, leaving city attorneys unsure on how to improve upon their policy.

Related: How homelessness started, grew and became a statewide crisis in Oregon

So, they came up with a new proposal.

The new ordinance repeals the original plan, replacing it with a slimmed-down version that focuses mostly on the “manner” aspect of the original policy.

Like its predecessor, the proposal bars people camping on public property from using a propane heater, digging into the ground, starting a fire, selling bicycles or car parts, and other activities. It also bans people from setting up camps that obstruct access to private property, like a business.

Those who violate these rules could be fined up to $100 or be sentenced to up to seven days in jail. City Attorney Robert Taylor said this penalty reflects feedback the city received on its initial proposal, which included multiple warnings for violators before they would face jail time.

“Those warnings were criticized as being sort of unworkable for people, and difficult to document … that sort of thing,” Taylor said. The new proposal encourages the Multnomah County district attorney’s office to offer violators the chance to engage in diversion programs in exchange for dropped charges. The city has not spoken with District Attorney Mike Schmidt about this plan.

Wheeler said violators will still be warned by law enforcement before being penalized under the policy.

“The goal here isn’t to lead with law enforcement,” he said. “The goal is to continue to lead with our efforts to reduce the impact of unsanctioned camps, to reduce the number of unsanctioned camps, to encourage people to be navigated to our shelters that connect people to services, connect them to housing, but it just adds this other opportunity for us.”

The ordinance echoes federal and state law by prohibiting any camping on public property if that person has access to “reasonable” shelter.

Notably, the policy differentiates between camping and sitting or lying down outside. Under this policy, camping means “to set up, pitch, use, or occupy camp materials with intent to facilitate sleeping, storage of personal belongings, or carrying on cooking.”

But it does not include “sitting with, lying by, or possessing camp materials that are stowed, disassembled, or packed in a manner that would permit them to be immediately carried or moved.” This activity is permitted under the new policy.

In an email sent to City Council staff Thursday, City Attorney Taylor wrote that he “believes these new proposed regulations would survive a legal challenge while providing the City the tools to change the status quo in Portland.”

Lawyers representing those who sued the city over last year’s proposal have been briefed on the new proposal. They were not immediately available to comment on the changes.

Another larger legal decision could still impact the policy’s fate.

A case heading to the U.S. Supreme Court this month challenges the 2018 ruling out of the 9th Circuit. In Grants Pass v. Johnson, the city of Grants Pass argues that punishing people for sleeping outside does not violate the Eighth Amendment, and is asking the court to overturn the appeals court decision.

Justices are expected to issue a ruling in June. If they side with Grants Pass, it won’t immediately allow Portland to penalize public campers without adequate shelter options. That’s because of the state law enshrining these protections. But it will make it much easier for lawmakers to undo that law if they chose to in years to come.

Related: How the Grants Pass homelessness case came to the US Supreme Court

Portland City Council is expected to discuss the proposal on April 18, before advancing it to a vote the following week. The new rules will go into effect 30 days after it’s approved by council, unless council members propose another timeline.

The majority of city commissioners appear to support Wheeler’s proposal. But some are considering punting the issue to next year, when a new city administrator will be in place.

Commissioner Rene Gonzalez supported the initial city camping ban last summer. But after seeing the legal fallout from that policy, he is interested in letting the city’s future administrator make the call.

“What I’m considering is whether we adopt a model that would delegate this task to the executive side [of the city],” he said.

Wheeler said council members should be responsible for crafting this policy and be held accountable by the public for its impact.

“I don’t think we should dodge the question by pushing it off to an administrator,” he said.