The Oregon Law Center’s class action lawsuit challenging the constitutionality of Portland’s camping ordinance follows in a long line of similar lawsuits filed across the country to vindicate the Constitutional rights of homeless individuals.
And because of prior lawsuits and the precedents they established, the lawsuit, Anderson v. Portland, has a strong chance of being successful. That would add Portland to a small list of cities whose camping ordinances have been declared unconstitutional.
“There is a solid basis for this lawsuit,” says Adam Arms, the civil rights lawyer who successfully challenged an unconstitutional version of the city’s sidewalk obstructions ordinance in 2004.
Tulin Ozdeger, the National Law Center on Homeless and Poverty’s civil rights program director agrees. “As shown by other successful cases across the country… there are a lot of Constitutional problems with these kinds of measures,” says Ozdeger.
Anderson v. Portland, filed in federal court on December 12, argues that the camping ordinance is unconstitutional in two respects.
First, the illegalization of outdoor sleeping when there are not enough shelter beds for homeless individuals cruelly and unusually punishes homeless people, violating the 8th Amendment of the Constitution.
“The Defendants’ [the City of Portland and the Police Bureau] pattern of citing and threatening to arrest involuntarily homeless individuals such as Plaintiffs for illegal camping and other offenses when they are sleeping outdoors… based on their status as homeless persons… is cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution,” the lawsuit reads.
A 2006 case, Jones v. Los Angeles, challenged Los Angeles’ camping ordinance, which made it illegal to camp in public spaces at any time of the day.
The 9th U.S. Circuit Court of Appeals ruled that the city of Los Angeles could not legally punish homeless individuals for sleeping outside when not enough shelter beds exist to provide night shelter to all the city’s homeless.
“It was a huge victory,” says Becky Dennison, co-director of the Los Angeles
Community Action Network, which pursues community organizing efforts in Skid Row.
The precedent set by that case recognized that people have a right to sleep and perform other activities necessary to survive and live.
“There’s no right more fundamental than the right to survive, the right to perform life sustaining activities,” Arms says.
“It doesn’t make a lot of sense to make it illegal to sleep outside at night particularly when people don’t have a place to go,” Ozdeger says.
Anderson vs. Portland also claims that the camping ordinance violates homeless individuals’ 14th Amendment rights to travel and have freedom of movement.
Rather than allowing homeless individuals to move and travel about freely, homeless individuals are in constant violation of the camping ordinance while living in Portland.
In August 2008, a federal judge in Fresno, California ruled against the city in the case Kincaid vs. Fresno for issuing citations to homeless individuals for camping.
The court ordered an injunction prohibiting the city from issuing citations and from seizing personal possessions found at camps without prior notice. The court also ruled that the city pay $1.4 million to compensate homeless individuals for lost and destroyed personal possessions.
Anderson vs. Portland asks that the court find the camping ordinance unconstitutional and that enforcement be suspended. It also asks that damages be awarded for loss of personal property.
The prior successes of the L.A. and Fresno cases, sources say, only increase the chances of Anderson v. Portland being successful for homeless individuals constituting the plaintiffs of the case.
“These are similar factual situations which would lead to some similar legal claims,” Ozdeger says.
“There’s strong merit to the 8th Amendment argument,” Arms says. “There’s more than one very strong legal argument in this case. I think the law supports the lawsuit.”
One of the many things at stake with the lawsuit is whether laws such as Portland’s camping ordinance criminalize homeless individuals and the status of being homeless.
“When cities make it illegal to do things a homeless person must do to survive because they’re homeless, it essentially criminalizes the status of being homeless,” Ozdeger says.
What the success of the case hinges on, Arms and other civil rights attorneys say, are the facts.
The plaintiffs of the case are all involuntarily homeless, unable to find shelter or affordable housing, and have been given citations for violating the camping ordinance.
In the instances of plaintiffs Mary Chase and Matthew Bailey, a couple, their possessions were taken by the police and largely destroyed, including the ashes of Ms. Bailey’s father.
The lawsuit also says “Portland has far more homeless people than available housing or shelter space for them.”
That fact will prove important. Being able to prove that the camping ordinance criminalizes homelessness will also be crucial.
“If you truly understand the state of homelessness, and the state of the criminalization of homelessness, you would understand the lawsuit, and see why it should win,” says Arms.
However, Anderson v. Portland is not expected by Goracke to get to court for another year. A lot can change in that time period.
Lately, there has been a movement, chiefly spearheaded by City Commissioner Randy Leonard and the police, to increase the number of shelter beds in Portland.
If that trend continues into next year, it could affect the lawsuit’s 8th Amendment argument.
The filing of Anderson vs. Portland comes on the heels of a number of dramatic events surrounding the existence of homeless camps.
“It wasn’t one thing that was a tipping point,” says Monica Goracke, an Oregon Law Center lawyer, when asked what led to her decision to file Anderson v. Portland.
In April and May of this year, over 100 homeless individuals and advocates protested in front of City Hall, calling for the repeal of the sit-lie and camping ordinances.
In October of this year, the Police Bureau announced new Standard Operating Procedures (SOP), or guidelines, for how the police conduct sweeps of homeless camps.
As reported by Street Roots in its November 28 issue, the new SOP includes enough exceptions to the 24 hours’ posting requirement before camp sweeps to make giving that notice effectively unnecessary in any circumstance.
“The new SOP, in my view, seemed to allow more discretion to police and be the catalyst for more enforcement,” Goracke says.
Finally, negotiations between Goracke and the City to reach a settlement regarding the camping ordinance proved ineffective. Those negotiations began as a result of a November 2007 letter by Goracke stating concerns about the constitutionality of the camping ordinance, and sought an out-of-court settlement.
“All of those things together made me feel like I couldn’t stall or wait any longer,” Goracke says.
If Anderson v. Portland is successful and the camping ordinance is overturned, homeless individuals who cannot get inside at night would have the legal right to sleep in public spaces. The camps they set up could not be swept by the police, and their possessions could not be confiscated.
“If they win, there’s a big upside,” says Paul Boden, executive director of the Western Regional Advocacy Project (WRAP), a consortium of West Coast advocacy organizations (including Street Roots).
A victory for homeless individuals would present a challenge to the police and city on a policy level, forcing the city to come up with an alternative to the ordinance, and possibly craft policies creating camps that can safely exist in public places.
The police, who consistently make it clear that they do not want to be involved with social service issues, view the camping ordinance as a tool necessary for public safety.
Seeing the ordinance as a tool for public safety is also the main impetus for the City Council’s support for the ordinance. And the business community supports the ordinance for the sake of keeping the downtown business core amenable to its customers.
Sergeant Brian Schmautz, public information officer for the police, did not return a phone call seeking comment. The City Attorney has a policy of not commenting on pending litigation.
“I am disappointed in the filing of this complaint, and had hoped that all parties would reach a resolution to this matter,” said City Commissioner Nick Fish in a December 11 press release. Fish oversees the city’s housing and homeless efforts and will also become commissioner of the Parks Bureau in January.
In Portland, interest in creating a “green zone” for campers has been bandied about earlier this year (see “Making a Pitch for Tents,” Street Roots, June 27, 2008.)
According to Dennison, after the camping ordinance was overturned in L.A., homeless individuals have been allowed to camp at night in public spaces throughout the city. However, she says, police aggression has ratcheted up during day-time hours.
“If it’s a maximum enforcement day, they’ll be going by and shaking folks tents and enforcing that 6AM thing to the letter of the law,” Dennison says.
“The key to all of these efforts is that we get to a place to stop how government discriminates and actively pursues policies to remove people,” Boden says. Or we’ll see lawsuit after lawsuit after lawsuit.”
“I am hopeful that [Anderson vs. Portland] will be successful,” Arms says. “A successful lawsuit is not the end. It’s a shield to protect homeless people’s rights. [But] it doesn’t end homelessness in Portland.”
By Amanda Waldroupe