If it isn’t careful, the city of Grants Pass could be caught in yet another legal battle over how it treats its homeless population, despite the U.S. Supreme Court recently ruling in its favor.
Disability Rights Oregon, or DRO, sent a Sept. 13 letter to the Grants Pass city attorney and police chief urging the city not to force residents with disabilities to move from one designated site to another as it planned to the next day.
“Grants Pass has a legal obligation to take requests for accommodation seriously and to offer reasonable accommodations as required by law,” the letter said.
The letter outlined how the city’s plan for sanctioned homeless encampments may violate multiple tenets of the Americans with Disabilities Act, or ADA, if it forces homeless residents — including those with disabilities — to move every week as required by city ordinances.
“Being cruel to people with disabilities is not a legitimate government interest.”
—Tom Stenson, DRO deputy legal director
The Oregon Department of Justice, or ODOJ, which is not involved with the DRO letter or current litigation against Grants Pass, said any legal challenge to the city’s ordinance could trigger ODOJ enforcing ORS 195.530, a state law intended to protect homeless residents from objectively unreasonable regulations.
The ADA broadly defines a disability as any condition that substantially limits a person’s major life activities and the legal protections touch “anything a public entity does,” according to the letter.
To the city, its designated sites provide legal cover for its threats of fines and jail time for people caught sleeping elsewhere in the city or refusing to pack up and move between the sites each week. The city passed a new ordinance after the Supreme Court found in its favor June 28, ruling it is constitutional to punish homeless residents for sleeping in public.
However, the city must still abide by the ADA and other nondiscrimination laws prohibiting government agencies from discriminating against people with disabilities, according to the letter.
“These laws require the city not only to refrain from intentional discrimination, but to offer reasonable accommodations or reasonable modifications in policy to allow people with disabilities to benefit from the programs and services of the city,” the letter said.
Seeing it from Salem
There are a number of ways civil rights issues could arise from the situation in Grants Pass, particularly as people with disabilities are disproportionately impacted, Fay Stetz-Waters, ODOJ civil rights director, told Street Roots in a Sept. 16 interview.
For instance, she said the ODOJ may only become involved after litigation triggers a case over whether Grants Pass’ ordinances are “objectively reasonable” under state law. ORS 195.530 — which requires cities’ regulation of survival activities to consider what resources are available to homeless residents — uses the phrase “objectively reasonable,” a clear term for legal professionals but one some lawmakers argue is unclear.
ODOJ cannot get involved to say what is objectively unreasonable without a harbinger, according to Stetz-Waters.
“We can see that from here,” she said. “We have to wait for harm. We have to wait for somebody to file a lawsuit.”
When a person files a discrimination complaint after being denied reasonable accommodations, the ODOJ may join a lawsuit as a friend of the court, but the formula requires a court to decide what is “objectively reasonable” based on what the city simply could have done, what it failed to do and what harm that omission caused.
“The longer this goes on, the more it looks like Grants Pass doesn’t want to do the right thing, and is holding their hands up and allowing harm to happen,” Stetz-Waters said.
Back in Grants Pass
Dr. Bruce Murray, a medical doctor and founder of the local volunteer-run service provider, Mobile Integrative Navigation Team, or MINT, worked with homeless Grants Pass residents in parks since the organization started in 2021. Murray gave signed letters to disabled residents living at the sites as many anticipated police forcing them to move from one site to another the week of Sept. 8, certifying each person was unhoused and medically fragile with complex health problems.
“The likelihood of serious injury due to their limited mobility, intolerance of temperature extremes and physical, and possibly behavioral health issues is too great to warrant the risk,” Murray’s letter said.
Tom Stenson, DRO deputy legal director, said the Grants Pass city attorney declined his request to be involved in discussions with the city about what reasonable accommodations it could make for disabled residents. DRO sent a follow-up letter on Oct. 3, reiterating its concerns and outlining other potential legal violations, including Section 504 of the Rehabilitation Act of 1973 and the Fair Housing Act.
Still, the ADA is clear that a person’s reasonable accommodation request is valid simply by letting a public entity know they have a disability-related need and a desire for accommodation, as the letter pointed out.
The city leaves interpretation of its ordinances to police officer discretion, letting them decide whether to arrest a person or to recognize their doctor’s notes affording them reasonable accommodations under the ADA.
Sgt. Josh Nieminen told Street Roots he didn’t see a lot of people with disabilities or mobility devices at the J Street site when interviewed on Sept. 6, adding that well-meaning advocates may be exaggerating how many people are unable to move. Since then, officers have not honored the letters and ticketed those living at the sites for not leaving in the required timeframe.
Stenson said poor officer discretion is a legally insufficient excuse if harm is done.
“The idea that somebody who uses a wheelchair, or who only has one leg, or who has a serious hernia, or some other disability that clearly directly affects their capacity to carry their stuff a mile — the idea that they would be arrested for not doing that, when they have a document in hand saying they can’t do that?” Stenson said. “It should be troubling with people. It should sound like that’s probably not the legal answer.”
Stenson said the ADA requires accommodations to be reasonable within the context of a defined public purpose to balance the needs of the public, a person with disabilities and the needs of the government.
“If the city doesn’t tell us what the interest is, it’s very hard to understand what their objections are to the reasonable accommodation,” Stenson said. “Based on sort of the chaotic history, the only consistent factor is they want people to have to move around a lot.”
Stenson said the city ordinances and statements from some officials infer the purpose of the ordinance is to make it difficult for homeless residents in Grants Pass — an approach embedded in city policy making since a council president said the point of its ordinances were to make it “uncomfortable enough in our city (homeless residents) will move on down the road” in a 2013 roundtable meeting.
“Being cruel to people with disabilities is not a legitimate government interest,” Stenson said.
Neither Mark Bartholomew, Grants Pass interim city attorney, nor Warren Hensman, Grants Pass Police chief, responded to Street Roots’ request for comment at the time of publishing.
DRO is designated by federal law to protect the rights of people with disabilities around the state of Oregon, including the rights of people with intellectual and developmental disabilities, people with mental illnesses, and people with other disabilities.
Stenson said in working on any social justice issue, it is common to encounter the false notion that one group of people is more deserving of accommodations than another group. He said there is often an attempt to rationalize why one person may have a right to justice while another does not.
“You don’t have to be perfect to have rights,” Stenson said. “You don’t have to have made no mistakes in your life in order to be protected by the law. Which is good news for most of us.”
Stenson said the takeaway is not that more legal fighting and litigation is the best way forward.
“The takeaway is that we should come together and try and find actual solutions that are more aimed at getting people into long-term housing supports,” Stenson said. ”Because nobody — including the people who are out in that gravel field in tents — really, ultimately wants the status quo to continue.”
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This article appears in October 2, 2024.