Oregon could limit bans on homeless camping

Cities and counties around Oregon would be unable to enact sweeping laws banning homeless people from camping on public land, under a bill introduced by House Speaker Tina Kotek Tuesday.

Instead, under House Bill 3115, local governments would be required to adopt policies that are “objectively reasonable” in regulating when, where and how people can live outdoors in the midst of a worsening housing crisis. If cities enforced more restrictive measures, impacted homeless people could sue to stop them.

While not a ban on anti-camping laws, House Bill 3115 is designed to ensure cities around the state are aligned with recent federal rulings limiting how local governments can regulate camping.

In one of those cases, the federal Ninth Circuit Court of Appeals upheld a ruling limiting cities’ ability to criminalize camping violations. A more recent federal ruling said cities cannot fine houseless people for sleeping outside.

With those rulings in place, cities can already face challenges in federal court. Kotek’s bill — the product of months of work by city and county lobbying groups, along with the nonprofit Oregon Law Center — is a way to spur cities to proactively adopt policies that comply, supporters say.

“The goal of the bill is to clarify these constitutional principles as local jurisdictions in Oregon work to ensure their local laws are in compliance with this federal decision,” said Danny Moran, a spokesman for Kotek, D-Portland. “Many cities have been doing the work to update their ordinances and the hope is this bill will help with those continued efforts.”

The actual language of HB 3115 is somewhat vague, a move its supporters say will allow courts to take into account the divergent circumstances homeless Oregonians face.

“There is a recognition that what’s ‘objectively reasonable’ is going to be different in different parts of the state,” said Ariel Nelson, a lobbyist who helped negotiate the proposal on behalf of the League of Oregon Cities.

The bill would require that local laws addressing “sitting, lying, sleeping or keeping warm and dry outdoors on public property must be objectively reasonable … with regards to persons experiencing homelessness.”

Whether a policy is “objectively reasonable” law, the bill says, would be “determined based on the totality of the circumstances, including, but not limited to, the impact of the law on persons experiencing homelessness.”

In other words, advocates say, cities will be able to take steps limiting or blocking camping in some public spaces, but not all public spaces. And local governments will have time to ensure they’re in compliance with the law. The regulations in the bill wouldn’t take effect until July 2023.

“Ordinances that say ‘no camping, anytime, anywhere,’ are unconstitutional,” said Becky Straus, a staff attorney at the Oregon Law Center, which has sued Portland and other cities on behalf of houseless people in the past. But Straus noted: “Many cities in Oregon with camping ordinances have kept their laws on the books and claim that they’re following the case law in the way they enforce their ordinances.”

One potential example of such an approach? The City of Portland, which has an outright camping ban on the books, but has grown more selective in recent years in choosing how to enforce it. City officials don’t believe Portland’s current practice of granting campers notice before pushing out campers and cleaning up campsites would be impacted by the ordinance.

“The on-the-ground effect of this bill is fairly limited,” Nelson said. “It’s really the state affirming what the court decided. This is one piece of a much bigger conversation.”