PORTLAND, Ore. — Beginning Friday, the city of Portland begins something like a soft launch of a new ordinance governing how and when homeless people can camp on public property. It includes a ban on camping during daylight hours, plus round-the-clock bans in certain parts of the city.
When Mayor Ted Wheeler brought the proposed ordinance before Portland City Council, it garnered hours of impassioned public testimony — much of it against the ban. But Wheeler later defended the ordinance by saying that it was actually less restrictive than the laws technically already on the books in Portland, and would align with a state law passed back in 2021 requiring more nuanced rules on homeless camps.
That law, passed as House Bill 3115, was itself the distillation of several important court cases establishing what rights homeless people have in a given city when there is insufficient shelter space for them. There's a reason why police simply can't arrest someone for camping on public property at any time of day, and its because of this court precedent.
One of those cases actually came from Oregon, originally called Blake v. City of Grants Pass. And it just this week saw an important development that ensures the legal landscape won't be changing any time soon.
But to get the full story, we first have to go back to the first and foremost of those two cases, Martin v. City of Boise.
How did we get here?
In 2018, the Ninth Circuit Court of Appeals ruled in Martin v. City of Boise that a city cannot charge someone with a crime or give them a ticket for sleeping in a public space if there's a lack of shelter beds — in other words, if there's nowhere else for them to go.
The judges declared that charging with someone with a crime for sleeping outside when they have no other choice is a violation of the Eighth Amendment, qualifying as cruel and unusual punishment.
Since that ruling, Martin v. Boise comes up just about any time camping bans do, because it's often what legally stands in the way of a total ban. It's a key component of Portland's ban, and now has a place in every Oregon city's ordinance thanks to HB 3115. The bill directed cities to update their camping ordinances to align with the ruling.
In order to broadly criminalize camping on public property with the threat of jail time or fines, police have to prove that there are shelter beds available when a homeless person refuses to relocate. They can't simply make an arrest on the spot.
Regardless of shelter capacity, cities are allowed to enact "reasonable" time, place and manner restrictions — which is why Portland is able to ban camping on public property during daytime hours, or full-time around places like schools and shelters, but can't ban homeless camps everywhere and at all times.
A timely decision
On Wednesday, the Ninth Circuit Court of Appeals refused to re-hear a case out of Oregon that stopped the city of Grants Pass from criminally punishing homeless people found sleeping in public spaces when they had nowhere else to go.
Last year, a three-judge panel of the court determined that the city cannot enforce its camping ban. The city appealed, asking for the full court to hear its case instead of just three judges.
But according to a 155-page order delivered Wednesday, a majority of the court's 29 judges refused a full court hearing.
Now, according to the Oregonian, the lawyer representing Grants Pass says the city plans to petition the U.S. Supreme Court to review the case.
So far, the Grants Pass case has taken a very similar path to Martin v. Boise. The city in Idaho likewise wanted a full-court review of the ruling against it, but the Ninth Circuit rejected that idea. They then brought the case to the U.S. Supreme Court, which denied the petition for review.
Only time will tell if Grants Pass suffers a similar rebuke from the nation's highest court, or if the case could end up setting a standard for cities across the U.S.
Regardless, there are a few passages from the Ninth Circuit's 155-page order that are worthy of mention. The two judges that wrote the majority opinion said the Grants Pass camping ban indeed violates the Eighth Amendment, and their choice to not hear the case is consistent with precedent.
"According to the City, it revised its anti-camping ordinances to allow homeless persons to sleep in City parks," the majority judges wrote. "However, the City’s argument regarding the revised anticamping ordinance is an illusion. The amended ordinance continues to prohibit homeless persons from using 'bedding, sleeping bag, or other material used for bedding purposes,' or using stoves, lighting fires, or erecting structures of any kind. The City claims homeless persons are free to sleep in City parks, but only without items necessary to facilitate sleeping outdoors."
But a senior Ninth Circuit judge did not mince words in his opposing statement, joined by 14 other judges.
"It is easy enough for us, behind marble walls and sealed doors, to dismiss the consequences of our decisions," wrote Judge Diarmuid O'Scannlain. "But for those who call these communities home — who must live by the criminal violence, narcotics activity, and dangerous diseases that plague the homeless encampments buttressed by our decisions — the consequences of our judicial arrogation are harder to accept."
The judge said that the original Boise ruling "invented" a federal constitutional right to sleep on public property, saying that the Eighth Amendment argument is wrongly applied when it comes to camping bans.
Another Ninth Circuit judge, Milan Smith Jr., wrote his own dissent, saying that the Boise and Grants Pass rulings "use a misreading of Supreme Court precedent to require unelected federal judges … to act more like homelessness policy czars than as Article II judges applying a discernible rule of law."
Judge Milan Smith Jr. went on to say that the Boise ruling "handcuffed local jurisdictions" trying to respond to the homeless crisis, while the Grants Pass ruling "now places them in a straitjacket."
The two judges who wrote the majority opinion rebuffed the dissenting claims, saying that they had mischaracterized their rulings with exaggerations. The rulings do not, they argue, allow homeless people to sleep wherever and whenever they want — and when there is sufficient shelter space, cities can ban sleeping anywhere in public.