On April 14, the Ninth Circuit Court of Appeals issued a decision, Jones v. City of Los Angeles, holding that Los Angeles may not punish involuntary sitting, lying, or sleeping on public sidewalks "that is an unavoidable consequence of being human and homeless" in that city.
While the court explicitly limited its ruling to Los Angeles, relying heavily on statistics and evidence of the lack of shelter for homeless people there, cities across the country, and Portland in particular, will take note. "Human beings are biologically compelled to rest, whether by sitting, lying, or sleeping," the court said. To criminalize such conduct, when it is involuntary and inseparable from the status of being without a home, is to violate constitutional protections. Yet Portland, along with many other cities, has enacted and enforced laws that implicate not only constitutional but also human rights concerns. As the Ninth Circuit recognized, we should not punish people for life-sustaining behavior that is unavoidably linked to their homelessness.
Skid Row, an area covering 50 city blocks just east of downtown Los Angeles, was the focus of the case brought on behalf of homeless people who were arrested or cited for violating Los Angeles's ordinance. With the highest concentration of homeless individuals in the United States, it is "a place of desperate poverty, drug use and crime," according to the court. This concentration is no accident: the city of Los Angeles has had a deliberate policy to concentrate and contain the homeless in Skid Row since at least the 1970s. Skid Row has space in SRO (single room occupancy) hotels, shelters, and other temporary or transitional housing for 9,000 to 10,000 people a night, but approximately 11,000 to 12,000 individuals live there. This means that more than 1,000 people are unable to find shelter each night. The court also noted that in all of Los Angeles County, there are almost 50,000 more homeless people than available beds. As Los Angeles officials admitted, this 1,000-person deficit is "severely large."
What is the magnitude of homelessness in Portland? As a smaller city, Portland has lower overall numbers of homeless people, but its rate of unmet need is almost the same as Los Angeles': 27 percent for Portland, compared with 30 percent for Los Angeles. The one-night street count conducted on Jan. 26, 2005, covering Multnomah County and the cities of Portland and Gresham, found 2,355 people sleeping outside, in a vehicle or in an abandoned vehicle. 1,020 people had been turned away from shelters that night – very close to the number in Los Angeles. These numbers are much higher than the previous street count from March 15, 2004, which found 465 people turned away.
An accurate determination of the number of homeless people in Portland is very difficult, but the City's 10-Year Plan to End Homelessness estimates that in Multnomah County, 16,000 to 18,000 people experience homelessness annually, and 4,000 people experience homelessness on any given night. This number tries to take into account the "hidden homeless" doubled or tripled-up in other households, staying out of sight or otherwise missed by the counters. When you consider that the average length of homelessness is 21 weeks, and the average wait to get into a publicly-funded shelter is four to six weeks (up to 10 weeks in the winter months), the word "crisis" begins to seem woefully inadequate.
In Los Angeles, as in Portland, increasing rates of homelessness mean that homeless people are more visible in public than ever before. Laws prohibiting the obstruction of sidewalks and streets have been used to move people along, including those who have few or no other places to go. The Ninth Circuit sharply criticized Los Angeles's ordinance as "one of the most restrictive municipal laws regulating public spaces in the United States." The ordinance prohibits sitting, lying, and sleeping in or on any street, sidewalk or other public way at any time of day or night within the city limits. The court distinguished LA's law from similar ordinances in places such as Las Vegas, Seattle, and Portland which, it said, do better by requiring that some type of inappropriate conduct be part of the crime other than just sitting, lying, or sleeping in a state of homelessness.
While the court's reasoning in criticizing the Los Angeles ordinance was sound, a closer look at Portland's laws, along with evidence of how they are enforced, would have shown that it cannot be so easily distinguished. Portland's two ordinances prohibit "camping" on public property and rights of way, and obstructing public sidewalks in a large downtown area. While the enforceability of the sidewalk obstruction ordinance is very much in doubt after a late 2005 ruling by the Oregon Court of Appeals, this ordinance is still used verbally by police and private security officials to move homeless people from sidewalks, although it is limited in time from 7 a.m. to 7 p.m. The camping ordinance, as written, is not just about pitching a tent on the bus mall. It can be – and often is – used by police to cite people for simply sleeping in parks, under freeways and other out-of-way places, with so little as a bedroll or a piece of cardboard beneath them.
Just as in Los Angeles, homeless people in Portland often lose all their belongings when police cite them for unlawful camping. The camping law is enforced both day and night, even though many homeless men and women sleep during the day because it is so unsafe for them to sleep on the streets at night. Although Oregon state law requires 24-hour notice to homeless people who are in violation of camping laws, officers sometimes stage surprise raids complete with a work crew to remove and destroy homeless people's personal property. Losing the few possessions you have – a blanket, clothing, but especially documents such as an ID or birth certificate – can be debilitating, to put it mildly. When homeless people in Portland are arrested, prosecuted, and lose their belongings for the crime of sleeping outside when they had nowhere else to go, it drives them even further into hopelessness and poverty.
The Ninth Circuit's decision contains two important legal principles. First, it found that the homeless plaintiffs in this case had standing to challenge a law that criminalizes their involuntary conduct even though not all of them had been actually convicted under that law. When people are arrested, jailed, fined, and prosecuted for violations of a law, the court found, they are subjected to the criminal process and therefore can challenge the law under the Eighth Amendment's cruel-and-unusual punishment clause. Second, the decision finds, based on prior cases establishing that people cannot be punished simply for being poor or homeless, that the government cannot make criminal those acts that are "involuntary and inseparable from status" – specifically, physically resting in a public place when there is no other way a human being living in the city of Los Angeles who is homeless could meet this fundamental need. The court's distinction between Los Angeles's sweeping ordinance and the more limited laws in Portland, Seattle, and other cities is likely to be read as foreclosing similar challenges. However, the court's reasoning clearly applies to some aspects of local laws.
Portland has a 10-Year Plan to End Homelessness that acknowledges the destructive effect of laws criminalizing behavior that homeless people are forced to engage in, such as sleeping or sitting outside, because they are homeless. For individuals, a criminal record of any kind makes it difficult to find housing and employment, which are so essential to escaping homelessness. For the community, criminalization imposes an enormous financial, physical, and psychic toll. We should not treat homeless people this way not only because it is costly, but because it is inhumane. We must find a better way.