A legal challenge to Portland’s ban on public camping saw its latest setback Wednesday, when the Oregon Court of Appeals affirmed a lower court’s ruling that the law is constitutional.

In an opinion nearly three years in the making, appeals judges found that a Multnomah County judge acted correctly in 2015 when he declined to dismiss a criminal case against Alexandra Barrett.

Barrett was homeless and facing more than a dozen charges for violating the city’s camping ban. She argued the city’s ban was unconstitutional because she had nowhere else to go. 

That’s an argument that federal appeals judges have found persuasive recently. But Multnomah County Judge Stephen Bushong ruled Barrett hadn’t made her case, and he declined Barrett’s motion to dismiss the matter. She was eventually sentenced to 60 days in jail. 

In its majority ruling Wednesday, the appeals court found that Barrett’s argument for dismissing the case was not detailed enough for it to rule on whether the city’s camping ban was used illegally. Barrett would have needed to make a more explicit case that no shelter beds were available and that she had attempted to “be among those sheltered,” in order for judges to determine whether her citations violated Eighth Amendment protections against cruel and unusual punishment.

“In short,” Judge Joel DeVore wrote for the majority, “the record did not indicate whether defendant’s acts of camping were involuntary acts … Lacking the record necessary for this as-applied challenge, the trial court did not err in denying the pretrial motion” to dismiss the case.

Lawyers for the city of Portland and Oregon Department of Justice had argued against Barrett’s appeal. The woman’s attorney, Lindsey Burrows, plans to ask the Oregon Supreme Court to review the ruling.

“The opinion does not resolve the constitutionality of Portland’s public camping ordinance,” Burrows said in a statement.

The Oregon judges did acknowledge a 2019 opinion by the 9th Circuit Court of Appeals, which found that a Boise law similar to Portland’s could violate the Eighth Amendment if homeless people have no choice but to camp. But Oregon appeals judges noted that they were not bound to follow the 9th Circuit’s lead.

The court also did not agree with Barrett’s argument that the city’s camping ban “wholly prevents homeless persons from residing in or visiting Portland,” or that the city’s law ran afoul of state laws dictating what sorts of policies localities can put in place to address camping.

But despite the court’s overall decision that Barrett’s case had not been mishandled, two judges did voice strong concerns about the constitutionality of the city’s law.

In a concurring opinion, Judge Darleen Ortega wrote that “it is not hypothetical that the homeless in Portland are subject to criminal punishment for a circumstance that is, in many cases, beyond their control.”

“The city’s blanket prohibition of public camping violates the Eighth Amendment when the camping is an unavoidable consequence of being homeless,” Ortega wrote. That sentiment was shared by another judge on the court, Steven Powers, but does not have any force of law for the city of Portland.

Camping bans such as Portland’s have drawn attention around the state, as cities attempt to grapple with a widening housing crisis. Salem passed a similar law last year, but might be on the verge of reconsidering.