Portland has received the first legal challenge to its daytime camping ban, which goes into effect today.
On July 1, a law firm representing a group of 24 people experiencing homelessness sent a tort claim notice to Portland City Council, accusing the new council-approved ordinance of violating both state and federal law. The notice from the Oregon Law Center acts as the first step in a lawsuit against the city – an action the group says it’ll take in the coming months.
Ed Johnson, director of litigation at Oregon Law Center, said the city’s policy takes the wrong approach at addressing one of the city’s biggest challenges.
“The thing that everyone agrees on is that we want fewer people to be forced outside and we want to end homelessness,” Johnson said in an interview. “The question is how to do it. And the worst way to do it is through criminalization.”
The city’s ordinance prohibits camping on all public property between the hours of 8 a.m. and 8 p.m. – and imposes new limitations on where people can camp during all other hours. The policy also bans people from participating in certain activities – like using a gas heater or selling bikes – while camping at night. If people violate this policy twice, they will be given a written warning from a Portland police officer. If they violate the camping policy three times, they’ll face a $100 ticket or face up to 30 days in jail.
Mayor Ted Wheeler introduced the camping ban in late May. A spokesperson for the mayor’s office acknowledged that Wheeler had received the letter from the Oregon Law Center, but declined to comment on the notice.
While the city policy goes into effect today, Wheeler said it will not be immediately enforced. On Thursday, Wheeler said his office will spend the summer educating people experiencing homelessness on the new policy. His office hasn’t made public when it will actually begin enforcing the rule.
City attorneys have said this policy update was required to get Portland in line with a recent Oregon law, House Bill 3115. That law mandated that cities make “objectively reasonable” rules about when, where, and how people can sit and lie outdoors on public property. By allowing people to rest on public property during 12 hours of the day, city attorneys said that the new rule should meet that “objectively reasonable” requirement.
Oregon Law Center lawyers disagree.
“The Ordinance unreasonably forces people to pack up all their personal belongings and effectively disappear from the hours of 8:00 a.m. to 8:00 p.m. every day,” reads the letter.
It argues that it’s unreasonable for the city to not offer any information on where people can legally camp during the day. When the policy was approved by City Council in early June, city staff suggested that daytime campers could move into a shelter, but most daytime shelters in Portland are constantly at capacity. Mayor Ted Wheeler said people could also move into the city’s planned mass outdoor encampments, but the first isn’t set to open until late July.
The letter goes on to claim that the ordinance “unreasonably exposes individuals to criminal prosecution… for violating a law that is incomprehensible.” This could be considered “cruel and unusual punishment” under the Eighth Amendment to the U.S. Constitution, lawyers argue.
That argument is the backbone of a 2018 federal ruling that has shaped policies that regulate homelessness across the West Coast. That decision by the U.S. Ninth Circuit Court of Appeals in the case Martin v. Boise prohibits cities from arresting people for sleeping on public property — unless there is enough shelter available to accommodate a city’s homeless population. The federal appeals court determined these types of policies violate the Eighth Amendment. Yet, similar to Oregon’s law, the federal ruling allows governments to impose “reasonable” rules about where and when people camp on public property if there aren’t enough shelter beds available.
This is Portland’s reality. According to Multnomah County data, the county currently has 2,000 shelter beds open to the public, and around 90% of those are occupied on average. As of January, nearly 4,000 people were estimated to be sleeping unsheltered in the county on a given night.
The state law, HB 3115, was created to enshrine the Martin v. Boise ruling in state statute.
That law, which went into effect July 1, allows people experiencing homelessness to sue if they believe a city’s policy is not “objectively reasonable.” But that person must notify a city at least 90 days before filing a lawsuit.
The Oregon Law Center sent its notice to the city on July 1, meaning it would be able to file a lawsuit as soon as September 29.
The Oregon Law Center, a nonprofit that offers free legal aid to low-income Oregonians, has a long history of representing people whose lack of housing has left them vulnerable to criminal penalties. Johnson is the lead attorney in a case accusing the city of Grant Pass of creating unconstitutional laws against sleeping outside. A federal appeals court agreed with Johnson in 2020. And on Wednesday, that same court refused to rehear the case, allowing the prior ruling to stand. Grants Pass said it hopes to appeal the case to the U.S. Supreme Court.
The Grants Pass case was filed before state lawmakers passed HB 3115, meaning it solely focuses on how the city’s policy may violate federal law. A case against Portland’s ordinance, however, could be the first time a city policy criminalizing public camping is tested against the new state law.
For Johnson, the legal challenge is a chance to evaluate the impact that Portland’s policy will have on ending the city’s homeless crisis.
“Whether we’re rounding people up and putting them in these mass camps or just ticketing them and putting them in jail, none of that even has a reasonable goal of reducing homelessness,” Johnson said. “In fact, it will increase homelessness because people are going to be destabilized.”