A Multnomah County Circuit Court judge denied an Oregon Law Center, or OLC, motion requesting a temporary restraining order to halt the city of Portland's so-called daytime camping ban Sept. 29.
Despite denying the restraining order, Judge Judith H. Matarazzo agreed with the plaintiffs that once the city begins enforcement, she foresees issues with the ordinance — not the least of which is uncertainty with the map of where homeless Portlanders can or cannot sleep. She declined to issue a temporary restraining order, saying state law required current harm, and the city is not currently enforcing the ordinance. The city told the court it will offer two weeks warning before it begins the ban.
"You could argue the harm is not knowing what to expect or the uncertainty that creates," Matarazzo said. "I'm denying the TRO because I cannot wrap my head around what the harm is we're trying to address right now. Nor, frankly, is there any clear indication as to whether or not it will be enforced."
OLC still sued the city of Portland Sept. 29 in an additional legal action, asking the court to declare the city’s so-called daytime camping ban unlawful. Despite Matarazzo denying the temporary restraining order, the lawsuit is still in progress.
OLC filed the 20-page complaint in Multnomah County Circuit Court, arguing the city’s time, place and manner restrictions are objectively unreasonable under ORS 195.530 and Article I, section 16 of the Oregon Constitution.
“The Ordinance is objectively unreasonable, cruel, and incomprehensible, and the penalties are grossly out of proportion to the ‘offense’ of surviving outside,” the complaint said.
The complaint argues the ordinance effectively criminalizes homelessness amid an affordable housing crisis and causes irreparable harm to homeless Portlanders. The complaint includes testimony from five plaintiffs, representing a small sample of the myriad stories of those affected by the ban, including people with disabilities, marginalized genders and Portlanders of color who are disproportionately impacted by homelessness and other structural inequities.
The city ordinance, a revision of the city’s previous unenforceable public sleeping ban, went into effect July 7 and bans acts construed as “establishing or maintaining a temporary place to live” between 8 a.m. and 8 p.m. and prohibiting “establishing or maintaining a temporary place to live” at any time on sidewalks, in parks and other public property. The revised code allows for two warnings before police can arrest a homeless Portlander, who will then be subject to a $100 fine, 30 days in jail, or both.
The ordinance reaches far beyond requiring all homeless Portlanders to break down tents between 8 a.m. and 8 p.m. — it also prohibits homeless Portlanders from using “any vehicle or part thereof, any bedding, sleeping bag or sleeping matter” for “establishing or maintaining a temporary place to live,” on public property in that timeframe.
The ordinance aggressively limits where homeless Portlanders can “camp,” bans the use of any fires or gas heaters and prohibits the accumulation and disposal of trash on public property. It also includes new restrictions on what items a homeless Portlander can own, including bikes and bike parts.
The complaint names five plaintiffs and does not seek monetary damages. Instead, the lawsuit asks the court for injunctive relief, citing irreparable harm homeless Portlanders face, and sought a temporary restraining order to halt enforcement of the ban while litigation is ongoing. OLC filed the complaint as a class action suit, but the court will ultimately decide whether to certify or dismiss the class.
“Plaintiffs and the proposed class are involuntarily homeless Portlanders subject to being moved along, swept, arrested, prosecuted, fined and imprisoned under the Ordinance,” the complaint said.
Despite making up approximately 2% of Portland's population, homeless Portlanders represent 50% of all arrests from 2017 through 2020, according to an investigation by nonprofit news outlet Reveal.
Ed Johnson, OLC director of litigation, said the ordinance was ill-considered, and the city adopted it without considering the needs of the people it targets.
“It will exacerbate our city’s problems, not solve them,” Johnson said. “We all want to end homelessness. But anyone willing to look at the data knows what works: more supportive housing, rent assistance, tenant protections and more efforts to stabilize the lives of people forced to live outside so they can find housing and services.”
Portland City Council voted 3-1 in favor of the updated code June 7, placing new restrictions on when, where and how homeless Portlanders can shelter. Commissioner Carmen Rubio was the lone “no” vote, and Commissioner Mingus Mapps was absent on the day of the vote.
Cody Bowman, Mayor Ted Wheeler’s communications coordinator, said the city is unable to comment on pending litigation in a Sept. 29 email to Street Roots.
“The city of Portland remains focused on education and outreach efforts with the intention of starting enforcement in the coming weeks,” Bowman said. “The city will provide two weeks’ notice to the community before enforcement begins.”
The time, place and manner restrictions violate the Oregon Constitution and ORS 195.530, according to the complaint, the same law the city said forced it to update its code.
In 2021, the Oregon Legislature passed HB3115 under then-Speaker of the House Tina Kotek, which became ORS 195.530 two years later on July 1, 2023. ORS 195.530 states that any city or county that “regulates the acts of sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to the public must be objectively reasonable as to time, place and manner with regard to persons experiencing homelessness.”
In addition to the suit saying the restrictions are not “objectively reasonable,” it alleges the city did not include homeless Portlanders or service providers during the two years it had to bring the city into compliance with state law.
“The City gathered no information as to what would be objectively reasonable ‘with regards to persons experiencing homelessness,’” the complaint said.
In a June 1 statement to Street Roots, before the city passed the updated ordinance, Gov. Kotek clarified the intention behind the state legislation.
“The intent behind House Bill 3115 was to affirm that if a city chooses to regulate ‘survival activities’ like sitting, lying, sleeping or keeping warm and dry, those laws must be reasonable, and must take into account both the resources available to people who are and the impact of regulations on people who are homeless,” Kotek’s office said.
The complaint also takes aim at the city’s definition of “involuntarily homeless” as “having no means to acquire one’s own shelter and not otherwise having access to shelter or other alternative options for housing,” as described in the ordinance. The latter portion of this provision means if the city offers a homeless Portlander shelter as they sleep on public property, and they refuse it, they can then be considered “voluntarily homeless” and immediately subject to warning, citation or arrest.
The complaint argues the city’s “involuntarily homeless” definition is unclear and overly broad. The city can offer overnight shelter to fewer than 30% of homeless Portlanders, based on county estimates of 1,800 to 2,000 total city- or county-operated shelter beds, rooms and tiny homes, cursory private shelter estimates and undercutting the county’s rule of thumb for estimating the homeless population (three-to-four times more than Point-in-Time Count totals).
“As a practical matter, in a city with fewer than 2,000 shelter beds and 10,000 unhoused citizens, the presumption should not be that people living outside are doing so voluntarily,” the complaint said.
Declarations of support
Nkenge Harmon Johnson, president and CEO of the Urban League of Portland, wrote a declaration supporting the temporary restraining order, highlighting the disproportionate impact the ordinance has on Black Portlanders and people of color. The Urban League of Portland is a civil rights and social service advocacy group founded in 1945 to empower Black Portlanders to achieve equality in education, housing and health care.
“Nationally, 40% of all homeless people are Black, though they are 13% of the U.S. population,” Harmon Johnson said in the suit. “Due to structural inequities, Black Oregonians are more likely to be homeless because they are more likely to be poor, unemployed, or earn lower incomes than whites.”
Harmon Johnson said she is troubled the city would approve camping bans without necessary tools to support people experiencing homelessness.
“Criminalizing homelessness is not the answer, it only harms people in crisis, especially Black people,” she said in the suit.
In a declaration of support for the temporary restraining order, Shannon Singleton, former interim director at the Joint Office of Homeless Services, said the time restrictions of the ordinance create issues for homeless Portlanders who are unable to find a place to store their belongings during the 8 a.m. to 8 p.m. curfew.
Central City Concern’s daytime storage unit near the Steel Bridge served 804 individuals in August 2023 alone. The unit is open seven days a week from 7 a.m. to 6 p.m., just short of the city’s 8 p.m. curfew.
“When people are forced to move from place to place, hiding from the police, it makes it more difficult for them access our services and other services such as shelter, housing or medical services,” Singleton said.
Finding out
As Street Roots reported in June before the City Council vote, opponents warned the ordinance would disproportionately affect particularly vulnerable homeless Portlanders, including women, people of color, LGBTQIA+ people and those with disabilities.
The time restriction — no “camping” between 8 a.m. and 8 p.m. — is of particular concern to advocates and service providers, as many people more prone to victimization stay awake at night and sleep during the day.
“Women who live outside, almost all of them have experienced violence,” Katie O’Brien, Rose Haven executive director, told Street Roots in June. “It's certainly more obvious if those things are happening during the daytime. Women are safer during the daytime than they are by the dark of the night, and so it's a more practical time for them to be on alert for self-protection.”
Forcing people to pack their sleeping materials each morning raised concerns for disability advocates, who said some people simply cannot comply with that order. Additionally, people with disabilities must carry their belongings from 8 a.m. to 8 p.m. should they need or want to leave the immediate area they slept in the previous night.
One plaintiff in the lawsuit suffers from multiple disabilities, including epilepsy, degenerative disc disease, anxiety and PTSD. He has a strict regime of medicine that he maintains to manage his epilepsy and stay alive, according to the complaint.
“He is afraid to sleep at night because he has been robbed and beaten several times while sleeping at night or while unconscious from seizures,” the complaint said. “Because of his severe anxiety and PTSD, he cannot function in congregate shelters in close proximity to a lot of strangers. If he goes to jail, he will not be able to function, does not think he could make it through even one day, and is afraid that he will lose his medication and will die.”•
K. Rambo, Street Roots editor in chief, contributed reporting to this story.
Editor’s Note: Street Roots executive director Kaia Sand is named as a supporting party in OLC’s lawsuit. The Street Roots newspaper is not involved in the suit and maintains editorial independence from all Street Roots advocacy efforts.
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