Politics

Judge halts enforcement of Portland’s camping ban

By Alex Zielinski (OPB)
Nov. 9, 2023 8:25 p.m. Updated: Nov. 10, 2023 2 a.m.

The city of Portland and attorneys for several unhoused Portlanders presented their arguments about the daytime camping ban just days before enforcement was scheduled to begin

FILE: Tents line the entirety of some city blocks in Portland's Old Town on March 23, 2022.

FILE: Tents line the entirety of some city blocks in Portland's Old Town on March 23, 2022.

Julie Sabatier / OPB

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A Multnomah County Circuit Court judge has granted a legal request to stop Portland from enforcing its daytime camping ban, four days before it goes into effect.

The preliminary injunction, filed by attorneys representing five unhoused Portlanders, prohibits the city from enforcing the ban while a lawsuit against the policy plays out in court.

“The court finds that plaintiffs made a sufficient showing to warrant preservation of the status quo so that, upon a final hearing, full relief may be granted,” Judge Rima Ghandour wrote in a Thursday afternoon ruling.

Ghandour’s ruling means the city cannot enforce its ban as planned. Her ruling will remain in effect until the lawsuit concludes — unless she chooses to lift the order before that point.

Portland City Council first adopted its new camping ban in June, with a plan to start enforcement in the fall. Last week, Mayor Ted Wheeler announced that police would begin enforcing the ordinance on Monday, Nov. 13.

When enforced, the ban would prohibit camping on all public property between 8 a.m. and 8 p.m. and impose new restrictions on where people can rest during all other hours. The policy also bans people from participating in certain activities — like using a gas heater or selling bikes — on public property at night. If a person violates this policy twice, they will receive a written warning from a Portland police officer. If they violate the camping policy three times, they’ll face a fine of up to $100 ticket or up to 30 days in jail.

Related: Portland will begin enforcing camping ban in two weeks

Ghandour heard arguments in favor and against the ban’s enforcement Thursday morning.

Attorneys with the Oregon Law Center, who requested the preliminary injunction on behalf of their unhoused clients, were tasked with proving whether the ban would “irreparably harm” their plaintiffs if the city begins enforcement Monday.

“Plaintiffs will suffer irreparable harm and widespread trauma simply trying to comply with this ordinance,” said Oregon Law Center attorney Ed Johnson Thursday. “Yes, people are frustrated by what’s going on (with homeless camps) in Portland. Nobody wants to see tents. But nothing about this ordinance will solve this problem, it will exacerbate this problem.”

Johnson said this policy violates the Oregon Constitution by imposing penalties that are disproportionate to the criminal offense — which could be considered “cruel and unusual punishment.” He said it’s unjust to prohibit people without a home from sleeping during the daytime, especially since many people experiencing homelessness feel unsafe sleeping at night due to threats of violence or theft — and others work jobs with evening hours.

Portland city attorneys maintain that the policy will only cause harm to unsheltered Portlanders if they choose not to follow the law. In court Thursday, Deputy City Attorney Naomi Sheffield said that the city’s policy does not prohibit people from sleeping in public spaces during the day. Instead, it prohibits people from using structures like a tent or other “sleeping matter” for the purpose of “establishing or maintaining a temporary place to live.” Sheffield said that means people could still legally sleep under a blanket in public spaces — under certain circumstances.

“Having a blanket over you … that is not ‘establishing or maintaining a temporary place to live’ if all your other items are packed up,” Sheffield said.

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City offers no guidance on where to camp, plaintiffs’ lawyers say

Oregon Law Center attorneys filed a lawsuit against the city on behalf of five Portlanders experiencing homelessness in September. They asked the court to grant a temporary restraining order to halt the ban, but it was denied by Judge Judith Matarazzo. While Matarazzo raised concerns about the ban’s legality, she said she couldn’t rule on a policy that was not yet being enforced.

They were hoping for a different response Thursday. Ghandour issued her ruling five hours after the morning hearing.

Mayor Ted Wheeler said Thursday evening that her ruling makes “the city’s work harder” but doesn’t impede it.

“I believe the status quo is not working, but the court’s decision leaves the status quo in place,” Wheeler said. “The city will abide by the court’s preliminary order while continuing to fight in court for the city’s right to adopt reasonable regulations on unsanctioned camping.”

The city crafted its daytime camping ban to align with House Bill 3115, a law that requires cities make “objectively reasonable” rules about when, where and how people can sit and lie outdoors on public property. City attorneys argued that a policy allowing people to camp during some hours — 8 a.m. to 8 p.m. — meets that requirement.

Plaintiffs’ lawyers disagreed.

“It is not reasonable to expect thousands of unhoused Portlanders to effectively disappear from 8:00 a.m. to 8:00 p.m. every day,” reads the Oregon Law Center’s court filing. “The penalty of 30 days’ imprisonment is probably the most unreasonable of all. These convictions and month-long jail sentences will increase homelessness in Portland by traumatizing and destabilizing people already living outside and making it more difficult for them to find work and housing.”

Related: Portland approves ban on daytime street camping and imposes other restrictions

While the city’s policy allows people to rest on public property outside between 8 p.m. and 8 a.m., it greatly limits which public spaces are usable. Specifically, the policy bans camping overnight in city parks, along riverbanks, near busy streets and near homeless shelters, among other areas.

Plaintiffs’ lawyers pointed out that, while the city created a map that identifies all areas where people aren’t allowed to camp during evening hours, it offers no guidance on where people can legally camp overnight.

City attorneys contended that is adequate information under the state law. In legal filings, attorneys alleged that there are 6.3 square miles of public land within city limits where people can legally camp at night under this policy. They have not identified those specific sections of land or provided a map for the public.

And while people are prohibited from setting up a campsite during daytime hours, the attorneys say that people can rest in other public spaces, like the Multnomah County Courthouse, Portland City Hall or Portland parks between 8 a.m. and 8 p.m.

Related: Portland’s daytime homeless camping ban faces first legal challenge

Despite their clear divisions, both city and plaintiffs’ attorneys agreed on one thing: The current reality for people living outside is untenable.

“We do understand that it is difficult for unhoused people to live outside,” Sheffield said Thursday morning. “That difficulty exists regardless of the ordinance. There is an ongoing crisis, and the city does not have a lot of tools for addressing this. This is just intended to ensure that there are rules … and maintain the use of our public space for everyone.”

Johnson acknowledged that this litigation won’t improve the status quo for people experiencing homelessness. But he believes it could prevent further harm.

“Winning or losing … this doesn’t matter that much to people living outside,” Johnson said. “The status quo is bad for my clients. The issue before the court is how much worse could it get if this ordinance is enforced. And unfortunately, it’s a lot worse.”

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