Portland’s pedestrian use zones ‘deeply troubling,’ legal director says
The question of how people experiencing homelessness occupy public spaces has become a seasonal argument these days. As with years past, the question is again thrust into the public spotlight with Portland Mayor Ted Wheeler’s call for an expansion of a “pedestrian use zone” in downtown Portland, which restricts people from sitting or lying on a sidewalk.
The announcement has been met with a feisty backlash, including an early December protest outside Columbia Sportswear’s downtown store over the pedestrian use zone. Columbia Sportswear’s CEO, Tim Boyle, had written an op-ed in The Oregonian threatening to move the headquarters of Sorel, one of Columbia Sportswear’s brands, if steps to reduce crime were not taken. Soon thereafter, the signs appeared.
For years, homeless advocates and civil rights lawyers have argued that laws that ban public camping, loitering and panhandling essentially criminalize homeless people and violate a homeless person’s civil liberties, including free speech protections and protections against cruel and unusual punishment.
“All these laws criminalizing homelessness, we would be delighted to get rid of all of them,” said Kimberly McCullough, policy director for the American Civil Liberties Union of Oregon.
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The ACLU of Oregon has identified laws that disproportionately affect homeless people as one of its main priorities for litigation in the coming year. That decision to focus on laws that affect homeless people, such as bans on camping and panhandling, could have a dramatic impact on homeless legal rights, given the organization’s ability to strategically choose its legal cases and rally the proper resources to litigate them.
A spokesperson for Wheeler did not respond to a request for comment for this article. But in a Dec. 10 op-ed in The Oregonian, Wheeler argued that public safety and livability issues can be addressed without criminalizing homeless people.
He called the pedestrian use zone a “common sense” strategy, one that is “more limited and nuanced” than a “sit-lie” ordinance that bans sitting and lying on a sidewalk.
“But it gives authorities the flexibility they need to address specific public safety or public health threats in congested areas, by keeping our sidewalks accessible and walkable,” Wheeler wrote.
Mat dos Santos, the ACLU of Oregon’s legal director, said it’s too early to say whether the civil rights organization will challenge the pedestrian use zone in court. But “I don’t think anybody would be shocked to know that we are looking into it,” he said.
“This is something we find deeply troubling,” he said. “This is de facto discrimination based on economic status.”
The ACLU of Oregon undergoes strategic planning each year and identifies priorities for litigation based on what staff “see as emerging issues.” One reason the civil liberties organization decided to focus on homeless legal issues is the continued failure of the Right to Rest Act to become state law.
The Right to Rest Act would make it legal for homeless people to camp in public spaces, as well as park their car to sleep at night, thus overriding many local laws that prohibit camping.
The legislation would also make homeless people a protected class of people, making illegal any form of discrimination based on a person’s housing status. And the legislation would have instructed the state’s Bureau of Labor and Industries and private attorneys to enforce the protections.
The bill has been introduced during multiple Oregon legislative sessions, but it has always died in committee, most recently earlier this year, “in a state that is completely controlled by Democrats,” dos Santos said.
“When policy options run out, it’s time to try litigation,” he said.
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Tristia Bauman, senior attorney for the National Law Center on Homelessness and Poverty, a national nonprofit that advocates for the legal rights of homeless people, said it’s exciting any time an ACLU chapter decides to litigate laws affecting homeless people.
“This is squarely a civil liberties issue, one that the ACLU is expert at litigating,” Bauman said. “It’s their core mission.”
The ACLU, at both the national and state levels, is well known for its strategy of choosing lawsuits that can set legal precedent and change national, state or local laws.
Legal Aid Services’ offices – which often help people of low income, racial and ethnic minorities, and undocumented immigrants – are barred from litigating class-action lawsuits, legal cases in which a plaintiff represents an entire group of people, because of restrictions related to the federal funding those offices receive.
Those restrictions do not apply to state ACLU chapters, Bauman said.
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A homeless person’s entire life is displayed in public: where they camp, what possessions they have, what they wear, whether they have a pet, and so on. The complete lack of privacy exposes actions people take every day, such as sleeping.
Sleeping, resting, sitting and panhandling to make money are what civil rights lawyers and homeless advocates would call “acts of survival” – actions a homeless person must take to literally survive.
Yet in the case of camping ordinances, the very act of sleeping is criminalized.
“A person has to do certain things in order to survive,” McCullough said – sleeping at night, sitting down to rest or eat, urinating and defecating. “And (this is) saying that act of survival is criminal.”
McCullough and others argue that there is an inherent double standard in how these laws are enforced.
They reference volunteers of the Salvation Army who stand on sidewalk corners and in front of stores during the holiday season, ringing bells and asking for donations. And political canvassers, who stand on the corner of sidewalks introducing themselves and asking the names of passersby, or asking if a passerby wants to protect the whales, the forest or women’s reproductive rights.
And people often camp outside of R.E.I.’s store on Northwest Johnson Street before a sale or outside a movie theater before the first screening of a Star Wars movie.
Yet in each of these instances there are exceptions that influence the response. The Salvation Army volunteer asking for money is requesting a donation, not panhandling. Political canvassers are not obstructing the sidewalk, and people camping outside of a movie theater are not necessarily cited for violating a camping ordinance.
“There’s a variety of ways that people are treated differently,” McCullough said. “If a homeless person does something that a housed person does, they could be treated differently. There is a discrimination aspect.”
The ACLU of Oregon’s decision to tackle laws that impact homeless people come at a time when homelessness has dramatically increased in Oregon because of an extreme shortage of affordable housing.
Laws that directly affect homeless people are also on the rise.
Earlier this year, the ACLU of Oregon released the report “Decriminalizing Homelessness: Why Right to Rest Legislation is the High Road for Oregon.”
The report analyzes 224 local laws in 69 cities throughout Oregon, including camping bans, sitting and loitering laws and laws regulating panhandling, that “create clear barriers to performing life sustaining activities and legalize the unfair and harmful treatment of unhoused communities,” according to the report.
There is “an entire legal infrastructure in Oregon that makes meeting basic survival needs illegal in public spaces,” the report found. “Oregon law has made almost all aspects of basic survival and daily living a crime for unhoused people.”
In March, the Eugene City Council passed an ordinance banning dogs from a 12-block radius in downtown Eugene for six months (the ordinance expired in November). Supporters of the ordinance cited safety concerns, especially after a high-profile incident in which the dog of an employee of the Eugene Public Library was killed by a larger dog. And downtown business owners complained that the presence of dogs, often owned by homeless people, in the downtown core negatively affected business.
Three weeks passed between the ordinance’s passage and its effective date in April. By the time the ordinance went into effect, hardly any homeless people or dogs could be seen within the ban zone, which included places such as the public library and the main bus terminal.
Over the six months the ordinance was in effect, Eugene police officers made 69 “stops,” meaning the officers stopped someone with a dog and talked to that person about the ban without giving a citation.
A total of 15 people were given citations for violating the ban. All but one of them were homeless.
In Ashland, enforcement of the city’s camping ordinance, which makes camping or sleeping in a car parked in public spaces illegal anywhere in the city and can come with a fine up to $500, has dramatically increased. More than 300 citations have been filed in the Ashland Municipal Court this year, compared to 145 citations in 2016 and 129 in 2015. There are 679 homeless people living in all of Jackson County, according to state data.
The increase of laws directly affecting homeless people in Oregon reflects a national trend. Last year, the National Law Center on Homelessness and Poverty released a report, “Housing Not Handcuffs,” that surveyed laws that 187 U.S. cities have adopted and put into practice since 2006.
The report found that laws prohibiting “loitering, loafing, or vagrancy” increased by 88 percent. Adoption of laws that ban homeless people from living in their cars, which can lead to vehicle impoundment and a person losing possessions, saw the most marked increase in the last decade: 143 percent.
Violating these laws and interacting with the police can create a growing amount of citations, arrests, court fees and criminal records, which can create barriers to getting a job, accessing social services and getting housing.
“You don’t see these laws solving any problems,” McCullough said.
If laws such as Eugene’s dog ban simply move homeless people from one part of the city to another, “the truth of the matter is that you’ve moved the problem, instead of actually solving the problem, which is that folks can’t access housing,” she said.
Legal challenges to bans on camping, loitering and panhandling have been successful.
The Ninth Circuit Court of Appeals is considering a case challenging Boise, Idaho’s camping ordinance. The case, filed in 2009 by the National Law Center on Homelessness and Poverty and Idaho Legal Aid Services, challenges the legality of the city’s camping ordinance, which makes it illegal to camp in public spaces at any time of the day and makes doing so disorderly conduct.
In 2015, the U.S. Department of Justice filed a “statement of interest” in the case, noting that camping bans are bad policy and are often found unconstitutional on the grounds they violate the Eighth Amendment, which prohibits excessive fines and cruel and unusual punishment.
It was the first time that the Department of Justice issued an opinion on camping bans, which “is really influential,” Bauman said. “It inspired a lot of people who were interested in bringing challenges under the Eighth Amendment.”
In August, a U.S. District Court judge issued a temporary restraining order to prohibit the city of Houston from enforcing its anti-camping ordinance, the result of a lawsuit filed by the ACLU of Texas and the National Law Center on Homelessness and Poverty.
When granting the restraining order, U.S. District Judge Kenneth M. Hoyt said the homeless plaintiffs “are involuntarily in public, harmlessly attempting to shelter themselves – an act they cannot realistically forgo, and that is integral to their status as unsheltered homeless individuals. Enforcement of the City’s ban against the plaintiffs may, therefore, cause them irreparable harm by violating their Eighth Amendment right to be free from cruel and unusual punishment due to their status of ‘homelessness.’”
In Portland, enforcement of the city’s camping ban became less strictly enforced after the city settled a case brought by the Oregon Law Center, a nonprofit law office that represents lower-income people, which sued the city in 2008 over its camping ordinance, arguing that the camping ordinance violated the Constitution’s Eighth Amendment.
The Oregon Law Center would not comment for this article.
In 2012, the lawsuit was settled after the city agreed to hold confiscated property of homeless campers for at least 30 days and notify homeless people of how their possessions could be recovered.
For years, Portland had a “sit-lie” ordinance, which prohibited people from sitting or lying on a sidewalk between 7 a.m. and 9 p.m., and from putting their possessions on a sidewalk unless the person was less than two feet away.
In 2009, a U.S. District Court judge ruled the ordinance to be unconstitutional, finding that enforcement of the ordinance was arbitrary and discriminatory.
A year later, the Portland City Council created the city’s Sidewalk Management Plan, which includes the “pedestrian use zones,” which are intended to “ensure unimpeded movement for pedestrians” by prohibiting “immobile activities such as sitting or lying.” There are two pedestrian use zones in the city, which encompass all of downtown Portland, most of the Pearl District, and the area around the Rose Quarter and the Lloyd District.
McCullough and dos Santos would not definitively identify particular laws that the ACLU of Oregon is planning to challenge.
“We would be most interested in looking at where there are laws like this being enforced and there aren’t any advocates working on it,” McCullough said.
“There is developing case law around, in particular, targeting folks for sleeping and camping, … There is also certainly case law against the panhandling laws,” she said.
“I think there’s a whole bunch of different places where the Constitution can step in to protect people from having their existence criminalized, from being treated differently because of their (socio-economic) class.
