In a town where no year-round emergency shelter is provided, people forced to sleep outside will have relief from punitive measures
A federal judge on Wednesday issued an opinion in the class-action lawsuit homeless residents brought against the Southern Oregon town of Grants Pass, finding the town’s use of violations and fines to punish people for sleeping outside is unconstitutional.
This ruling has implications for other jurisdictions in Oregon that leverage violations and fines against people experiencing homelessness for sleeping outside when there is nowhere else for them to rest.
The lawsuit, brought by Oregon Law Center on behalf of the plaintiffs, was the first to test the landmark Martin v. Boise ruling, which in 2018 declared it unconstitutional to punish people for sleeping outdoors in public spaces when there aren’t enough shelter beds to meet demand.
It was clear under the Boise decision that criminal prosecution under these circumstances is unconstitutional. The opinion U.S. Magistrate Judge Mark D. Clarke issued this week in the Grants Pass case clarifies that the Boise ruling also applies to civil violations and punitive fines.
The ruling does not prevent cities from imposing anti-camping laws, such as the prohibition of tents or limits on areas and times of day that sleeping outdoors is allowed. It does, however, prevent a city from banning sleeping outside as broadly as Grants Pass.
“Grants Pass ignores the basic life sustaining need to keep warm and dry while sleeping in order to survive the elements,” Clarke wrote in his opinion. “Under the Grants Pass ordinances, if a homeless person sleeps on public property with so much as a flattened cardboard box to separate himself from the wet cold ground, he risks being punished under the anti-camping ordinance. Grants Pass cannot credibly argue that its ordinances allow sleeping in public without punishment when, in reality, the only way for homeless people to legally sleep on public property within the City is if they lay on the ground with only the clothing on their backs and without their items near them. That cannot be what Martin had in mind.”
Clarke found that Grants Pass’ camping ordinances violate the Cruel and Unusual Punishment Clause of the Eighth Amendment.
The final judgment in the Grants Pass case has not yet been entered but is expected soon.
STREET ROOTS REPORT: Lawsuit: Grants Pass criminalizes homelessness while offering no shelter
Ed Johnson, director of litigation at the Oregon Law Center, told Street Roots many housing advocates in Oregon are worried homelessness will increase drastically following the end of the eviction moratorium brought about by the coronavirus pandemic. He said he hopes this ruling will encourage local governments around the state to think about how they will mitigate increases in the homeless population in compassionate, rather than punitive, ways.
Clarke noted, “Uprooting homeless individuals, without providing them with basic sanitation and waste disposal needs, does nothing more than shift a public health crisis from one location to another, potentially endangering the health of the public in both locations. This concern is particularly acute during the current COVID-19 pandemic.”
Clarke’s opinion will likely have the most impact on towns that, like Grants Pass, offer no or not enough year-round shelter for people living outside. Johnson said it might be harder to show no alternative to sleeping outside was available on any given night in a city such as Portland, where shelter options are many and have increased amid the pandemic.
Clarke took the slightly unusual step of pointing to programs in his opinion that Grant Pass could utilize to help people experiencing homelessness, instead of trying to solve street homelessness by pushing people out of the city by making their life as unpleasant as possible.
“There are many options available to Grants Pass to prevent the erection of encampments that cause public health and safety concerns without violating the Eight Amendment,” Clarke wrote. “The Court reminds governing bodies of the importance of empathy and thinking outside the box. We must try harder to protect our most vulnerable citizens. Let us not forget that homeless individuals are citizens just as much as those fortunate enough to have a secure living space.”
Street Roots first reported on the lawsuit in April , finding that like many other communities across the state, Grants Pass has watched its homeless population grow as its housing affordability has declined. The town has no subsidized housing, and just half of those who are lucky enough to get a Section 8 housing voucher are able to find a landlord who will rent to them.
Despite being home to hundreds of people without a permanent residence, until recently, Grants Pass offered no warming shelter for cold and wet winter nights — and it still offers no year-round emergency shelter.
Rather than provide shelter to its homeless residents, the lawsuit, Blake v. Grants Pass, argued city officials worked to make their life as unpleasant as possible in an effort to push them out of town.
Minutes from a “City Council Community Roundtable on Vagrancy” in 2013, showed city councilors and law enforcement met with service providers and business leaders to brainstorm ways to get rid of problem populations before tourists arrived.
“The point is to make it uncomfortable enough for them in our city so they will want to move on down the road,” said then-City Councilor Lily Morgan.
Ideas hatched at that meeting — such as the construction of a jail-like sobering center, the creation of exclusion zones, blanket trespassing agreements, driving people out of town and leaving them elsewhere — all came to fruition in the years that followed.
Several plaintiffs in the lawsuit testified police had offered them bus tickets out of town, usually to Medford. Most also stated in their declarations that police disrupt them no matter where they sleep or sit, telling them to “move along” and encouraging them to leave town. Many believe that no matter where they try to sleep or rest, they are ticketed, fined and prosecuted for camping, sleeping and trespass, according to their declarations.
For plaintiff Debra Blake, the fines associated with her many citations and arrests were too much for her to pay. The 61-year-old disabled Grants Pass resident lost her job 10 years ago and soon after became homeless. She’s been living outside ever since.
“I cannot afford housing, and there is no available bed for me at an emergency shelter anywhere in Grants Pass,” she testified. “I have been told by Grants Pass police that I should leave town.”
In all, Blake owes the city more than $5,000 for crimes and violations related to her involuntary homelessness. The outcome of this lawsuit will not erase her debt.
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