Lori Lucas

On April 14, homeless advocates in Los Angeles scored a huge victory: The US 9th Circuit Court of Appeals lambasted a city law—used to harass LA's huge homeless population—that prohibits sitting, lying, or sleeping "in or upon any street, sidewalk, or public way." Police in LA have used the law to arrest homeless people during nighttime sweeps.

According to the lengthy opinion, sitting, lying down, and sleeping in public are "unavoidable consequence[s] of being human and homeless without shelter," and a blanket prohibition of those acts, at all times and throughout the city, is cruel and unusual punishment, a violation of the Eighth Amendment, Judge Kim McLane Wardlaw wrote in the 2-1 decision. The ACLU of Southern California filed the lawsuit on behalf of six homeless people, and asked for a limited injunction that would bar police from enforcing the law from 9 pm to 6:30 am.

In Portland—also in the 9th Circuit's jurisdiction—local homeless advocates met last week to scour the opinion, and determine its impact on Portland's own anti-homeless laws. "All the advocates are talking about it to see if it can help," says Monica Beemer, executive director of Sisters of the Road.

Though the opinion doesn't automatically invalidate Portland's laws—in fact, the opinion references Portland's ordinances, and implies that they're better than Los Angeles'—advocates are trying to determine if "there is anything with this opinion that can be leveraged for positive effect here in Portland," says Sisters of the Road co-founder Genny Nelson.

"It's a very important decision regarding homeless people's civil rights," says attorney Adam Arms, with the Western Regional Advocacy Project. Now, "there may be legal challenges to existing ordinances in court, or a movement to redraft local ordinances to comply with the law, so they don't violate the Eighth Amendment."

Portland currently has two laws that regulate sitting, lying, and sleeping in public. The first, the "Obstructions as Nuisances" law—sometimes referred to as the Sit-Lie Law—says a person who "sits, kneels, or creates a trip hazard or obstruction" on downtown's sidewalks is violating the law. The second law bars camping on public property. Both laws make it more difficult to be homeless in Portland, where roughly 2,000 sleep on the streets each night (and another 2,000 sleep in shelters or temporary housing).

"One of the huge issues for people who are homeless in Portland is not being able to get a decent eight hours sleep because they're moved all the time or hassled to get up," Nelson explains.

Unfortunately, the 9th Circuit opinion holds up Portland's Obstructions as Nuisance ordinance as an example of a law that targets the homeless, but provides ways to "avoid criminalizing the status of homelessness," by adding a stipulation. In Portland's case, just sitting at the edge of the sidewalk isn't illegal—but obstructing the flow of pedestrians is. Also, cops must give a warning first.

"They implied that Portland's law is better," explains Monica Goracke, homeless advocate at the Oregon Law Center. "I think their reasoning for why the Los Angeles ordinance is bad was right on. But factually, I don't know that Portland's law couldn't be subject to some of the same criticisms."

Fortunately, Portland's law expires in June (the city council passed it in late 2004—after the original sit-lie ordinance was ruled unconstitutional—but only for 18 months). But the Portland Business Alliance (PBA) is rumored to be revisiting Obstructions as Nuisance ordinance, and possibly rewriting it before bringing it to the city council (the PBA did not return the Mercury's call by press time). Advocates like Nelson presume they'll be "at the table" if a renewal heads to the council, and it's likely they'd use the recent opinion to shore up their case for a more pro-homeless law.

As with the Obstructions as Nuisance law, advocates are strategizing around the anti-camping law in light of the court opinion.

"Our anti-camping ordinance is just like [LA's] sit-lie-sleeping law. It doesn't matter what time of day, you can't sleep in the City of Portland in public," Nelson says.

"You can technically read it to say if someone is on public property and they roll out a sleeping bag or have a pillow under their head, they can get a ticket," Goracke adds. "And we've had clients who've had that happen."

Possible revisions could include lobbying for a time limit—"What if it were okay to sleep in Portland between the hours of 11 in the evening and 6 in the morning?" Nelson asks—or outlawing tents, but allowing sleeping in public. "Realistically, it's one thing to prohibit people from putting up a tent in the middle of the sidewalk, and it's another thing to say that someone can't just lie down and take a nap," Goracke says.