A Multnomah County Circuit Court judge approved an Oregon Law Center, or OLC, request for a temporary injunction Nov. 9, barring the city of Portland from enforcing its sleeping ban while litigation is ongoing.
OLC filed a class action lawsuit against the city Sept. 29, saying the ordinance is objectively unreasonable. The city announced Oct. 30 that it planned to begin enforcement of the ordinance starting Nov. 13, but OLC asked the court to rule the city of Portland cannot enforce the ordinance as the lawsuit moves forward.
Multnomah County Circuit Court Judge Rima Ghandour did not reach a decision in the courtroom but decided to issue the temporary injunction later in the day Nov. 9 after taking the decision under advisement.
The temporary injunction scuttled the city's plans to use the threat of civil and criminal penalties to clear unsanctioned encampments from the city, particularly in the central core. At the Oct. 30 press conference, beside Andrew Hoan, Portland Metro Chamber president, Portland Police Bureau Chief Bob Day and others, Mayor Ted Wheeler outlined his plan to clear homeless Portlanders and move them into the city's Temporary Alternative Shelter Sites, or TASS sites.
"I think it's safe, I think it's humane, I think it's absolutely the right thing to do," Wheeler said.
The 20-page OLC complaint argued 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 Oregon Legislature passed ORS 195.530 in 2021, requiring all local laws governing homeless residents' "survival activities" to be "objectively reasonable" and take the availability of alternatives like shelter into account. The city can currently offer overnight shelter to fewer than 30% of homeless Portlanders at most, based on the county's tally of 2,000 shelter beds and its estimates of the homeless population.
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 city argued in court the ban would help connect people to services like the city’s TASS sites, yet the city's choice to impose such restrictions with the threat of criminal penalties is at the core of an Oregon Law Center, or OLC, lawsuit against the city.
“Quite honestly, there is a question as to whether the city can force people into these mass camps under threat of enforcement,” Ed Johnson, OLC director of litigation, said in his argument.
The OLC 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.
Portland City Council passed the so-called daytime camping ban ordinance June 7, giving way to months of confusion and concern — and litigation — on the part of legal advocates, service providers, officials and homeless Portlanders.
Johnson said the ordinance was ill-considered, and the city adopted it without considering the needs of the people it targets in a Sept. 27 statement to Street Roots.
In the courtroom, Johnson argued the text of ORS 195.530 required the court to consider what is objectively reasonable to people experiencing homelessness, not simply the reasonableness of the ordinance as interpreted by housed Portlanders.
"When we read rules, intellectually, we may think this is reasonable," Johnson said. "But, the testimony of people who understand the day-to-day struggle, the hour-to-hour struggle of living outside, is more persuasive as to what is objectively reasonable."
Johnson noted the city provided no qualitative evidence showing homeless Portlanders who find the ordinance objectively reasonable.
Naomi Sheffield, arguing on behalf of the city, said while the questions of homelessness are uncomfortable, the job of the court is not to decide whether or not the ordinance is in line with other court decisions — including Martin v. Boise and an ongoing lawsuit on a Grants Pass ordinance banning homelessness.
"It is only to ask whether what the city intended to do was preempted by the legislature," Sheffield said.
Johnson noted thousands of Portlanders sleep outside at night, every night, and starting Monday, the ban would force them to remove all of their property every day, noting the city recommended the courthouse as an option for a place to be during the day.
“There is a heaviness to this case,” Johnson said. “I don't think, as a practical matter, most of my clients will want to sleep at the courthouse. What do they want to do in reality? They're going to hide from the police.”
Street Roots is an award-winning weekly investigative publication covering economic, environmental and social inequity. The newspaper is sold in Portland, Oregon, by people experiencing homelessness and/or extreme poverty as means of earning an income with dignity. Street Roots newspaper operates independently of Street Roots advocacy and is a part of the Street Roots organization. Learn more about Street Roots. Support your community newspaper by making a one-time or recurring gift today.
© 2023 Street Roots. All rights reserved. | To request permission to reuse content, email editor@streetroots.org or call 503-228-5657, ext. 404