Mayor Ted Wheeler and the city of Portland are again pursuing fining and jailing homeless Portlanders for behavior resulting from not having a home.
Portland City Council unanimously passed an amended ban on homeless Portlanders sleeping, storing belongings and cooking on public property — or “camping,” as the city calls it — May 8. The city says the ban, a reworked version of the summer 2023 ban, is legally defensible. A judge halted enforcing the 2023 so-called daytime camping ban, finding there was a reasonable expectation it violated Oregon law and the state constitution after the nonprofit Oregon Law Center sued the city.
The city has not announced if or when it will begin enforcing the ordinance.
The amended ban differs from the 2023 ban — which the city called “time, place and manner restrictions” — in a number of ways. The amended ban removes warnings a homeless Portlander will receive before being arrested and/or ticketed, whereas the 2023 ban included warnings. The 2024 ban replaces the incomprehensibly broad list of prohibited sleeping and storage locations that essentially included all public property with an explicit citywide prohibition.
The amended ban decreases jail time for violating the ordinance from 30 days to seven days and maintains the $100 fine included in the 2023 ban.
Both bans encourage the Multnomah County District Attorney to pursue diversion programs or connect people with services rather than pursuing jail time and fines. District Attorney Mike Schmidt told Wheeler, “the District Attorney’s office is not a service provider,” adding the office had “no resources within (its) own budget” to connect people with services in a 2023 letter about the previous ban.
The District Attorney's Office declined to tell Street Roots if Wheeler addressed Schmidt's previous concerns or if the county prosecutor was better positioned to serve that purpose under the new ordinance.
“The DA believes in prioritizing supervision and treatment over incarceration when possible,” Liz Merah, District Attorney's Office communications coordinator, told Street Roots on May 10. “Whether we will be able to 'divert' to housing or other services will be dependent on the resources available within the county at the time of case referral, and we will have to make those determinations on a case-by-case basis. Connecting defendants with services will be the primary goal.”
The saga regarding the recent bans began when the city had to update its previous ordinance as a result of ORS 195.530 taking effect July 1, 2023. The state law required all local ordinances on “sitting, lying, sleeping or keeping warm and dry outdoors on public property … must be objectively reasonable as to time, place and manner with regards to persons experiencing homelessness.”
However, the city has, thus far, refused to explain its insistence on keeping the most controversial and legally fraught piece of the bans — fines and jail time — or how that is at all connected with ORS 195.530. Juan Chavez, Oregon Justice Resource Center’s Civil Rights Project director and attorney, said the city’s focus doesn’t appear to be aligning its anti-homeless ordinances with the goals of ORS 195.530.
“They just keep coming back with these laws that are premised on ‘How can we best punish these people? How can we exact the most blood out of them?’” Chavez said. “There's not a punishment component built into (ORS 195.530), that's entirely their own invention.”
Scott Kerman, Blanchet House executive director, said the Old Town homeless services nonprofit has served more people with more needs compared to this time last year, but he remains hopeful as leaders “have shown a commitment to addressing our housing, mental health, and substance abuse crises.”
“The impact of the revised public camping ordinance on these vulnerable individuals remains uncertain, given the lack of ‘reasonable alternate shelter’ in our community as stated in the ordinance,” Kerman said. “Fines or imprisonment are not viewed as compassionate or effective responses to their plight.”
Chavez also highlighted the lack of “reasonable alternate shelter” mentioned in the ordinance and his own uncertainty regarding whether the city can or even plans to enforce the ordinance. Chavez said he believes the ordinance needs to and likely will be challenged in court if the city tries to enforce it.
“I think this is entirely an effort to demonstrate to anti-houseless people in the city that they're being tough on something when I think they know damn well they can't enforce this (ordinance),” Chavez said of City Council. “I don't really know what they think they’ll be able to achieve with this in the short term, at least.”
What’s old is new
While the 2024 ban excludes the phrase “involuntarily homeless” — a legally problematic passage in the 2023 ban — it includes functionally the same, albeit inverted, parameters for who is subject to enforcement.
As described in the 2024 ban, police can arrest someone for violating the ordinance “if the person has access to reasonable alternate shelter, has means to acquire reasonable alternate shelter, or has otherwise been offered and rejected reasonable alternate shelter.”
Those deemed “involuntarily homeless” in the 2023 ban were somewhat less subject to enforcement and defined as “having no means to acquire one’s own shelter and not otherwise having access to shelter or other alternative options for housing.”
Chavez said removing the “involuntarily homeless” label and flipping the language while maintaining essentially the same definition may not be enough to avoid the same legal issues, though it will depend on the judge when it’s likely challenged in court, should enforcement ever begin.
“The charade is obvious,” Chavez said. “It wasn't the label problem. It's really just functionally, are you meeting the requirements of (ORS 195.530), and, at least presently, Martin v. Boise. It'll be up to a judge.”
Regardless, it remains entirely unclear how the city plans to train police to assess if someone “has access to reasonable alternate shelter” or “has means to acquire reasonable alternate shelter.” Wheeler’s office did not respond to multiple requests for comment for this story.
Shelter-or-arrest ultimatum
An update to the ban lists “offered and rejected reasonable alternate shelter” as one reason someone is subject to enforcement, ostensibly in an attempt to circumvent the Ninth Circuit U.S. Court of Appeals' Martin v. Boise ruling prohibiting cities from levying civil and criminal penalties against homeless people for sleeping outside when a city does not have enough shelter beds. This provision in the ordinance appears poised to create a shelter-or-arrest ultimatum enforced by police.
There are 2,692 county- and city-funded shelter beds, according to the county, and at least 11,153 people experiencing homelessness in Multnomah County. Despite county- and city-funded shelters being 92.5% full each night on average in March, almost half of the homeless population — 5,398 — remain unsheltered.
It’s unclear if the county plans to hold shelter beds open so Portland police can offer shelter to a homeless Portlander and, if rejected, justify arresting them under the ordinance. Julia Comnes, Joint Office of Homeless Services communications coordinator, would not directly answer whether that’s in the county’s plans, instead providing a statement failing to address the question and electing not to respond when asked a second time.
“As part of the Homelessness Response Action Plan, we’re adding 1,000 beds to our system and helping 2,700 additional people move from the street into housing or shelter by December 2025,” Comnes said. “We created these goals in close partnership with the City and are continuing that partnership to act on these goals. This work is moving ahead as planned and hasn’t changed with the passage of the new law.”
Ed Johnson, the Oregon Law Center attorney who successfully challenged the 2023 ban in court, previously argued the city wasn’t accurately interpreting the shelter-related criteria in Martin v. Boise. A key component involves considering the overall availability of shelter, not so much a case-by-case basis regarding individual offers of shelter, Johnson told Street Roots in 2023.
Chavez said despite some complexity, including the mathematical component is the more accurate interpretation of the 9th Circuit’s ruling. Part of the equation is whether a law punishes someone for their status as a homeless person or their conduct irrespective of status, a question at the core of the Grants Pass v. Johnson case currently before the U.S. Supreme Court.
Federal law currently holds someone can’t be legally penalized for their status. The Martin v. Boise ruling found sleeping in public is part of someone’s status if they’re homeless, and inconsistent or inadequate access to shelter doesn’t change a person’s status.
“Mathematical is closer to the mark, both legally and, I think, practically,” Chavez said. “The legal underpinnings of (Martin v. Boise) go back to old cases about status as an alcoholic. ‘Can you prosecute somebody for existing as an alcoholic?’
“I think it’s generally understood that one shelter bed, one night, does not make somebody less houseless the next day. It doesn’t make them able to find housing the next day.”
Doing the same thing and expecting different results
The amended ordinance describes the Multnomah County Circuit Court injunction on the 2023 ban as keeping “the status quo in place,” adding “the City Council believes the status quo is not working.”
It’s true the city is not currently arresting scores of homeless Portlanders for sleeping in public, but it did so for decades without any lasting positive result. In fact, the practice was and is more likely to exacerbate homelessness rather than relieve it, according to available data.
Additionally, the city is currently still arresting scores of homeless Portlanders largely for low-level, non-violent offenses like failing to appear in court, as detailed in a 2022 report by nonprofit news outlet Reveal.
The same report analyzed arrest data from 2017 through 2020 in five major West Coast cities and found Portland cops arrest homeless people at a higher rate than any other city. Half of all arrestees in that time were homeless Portlanders, despite them making up about 2% of the city’s population. And yet, homelessness is still a large and growing problem in Portland.
While arresting and jailing homeless Portlanders for public sleeping appears to be a politically expedient platform and may provide temporary aesthetic relief, decades of data, studies and reports show it’s counterproductive if the goal is actually to reduce instances and duration of homelessness. Interactions with the criminal justice system, even for low-level offenses, complicate attempts at stability and increase the likelihood of future offenses.
“A large number of individuals who enter emergency shelters and other homelessness services were recently discharged from jail or prison,” a 2016 U.S. Interagency Council on Homelessness report found. “Some communities have adopted or are considering local policies and measures that criminalize homelessness and its associated behaviors — like sleeping outdoors — only perpetuating the cycle of criminal justice involvement and homelessness.”
The connection between homelessness and criminal justice system interactions is so well-studied and accepted, even the U.S. Department of Justice calls it the “jail-to-homelessness pipeline.”
A real change from the status quo representing an honest attempt to address homelessness in Portland is something entirely different from the city’s amended ordinance, according to Chavez.
“This is only hard if you're hell-bent on punishing people,” Chavez said. “If you wanted to actually do what's easier, probably more cost-effective, and more humane — which is to house people and provide the medical support and social workers — you would get the results you've been hoping for … fewer people on the streets, probably, and your perception of crime probably reduced.
“The absence of that and the insistence on punishment will ensure we keep ending up in the same place.”•
Street Roots reporter Jeremiah Hayden contributed reporting to this story.
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