Illustration by François Vigneault

DEPUTY DISTRICT ATTORNEY Andrew Sherwood quickly realized his error.

The Multnomah County prosecutor was in the middle of a potentially crucial January 23 hearing over the City of Portland's ban on camping, and he'd just admitted to a skeptical judge that "it doesn't take a whole lot to establish a campsite" under city code.

"You could in theory have a blanket for a picnic in Chapman Square, and you could be arrested for that," Sherwood told Multnomah County Circuit Judge Stephen Bushong.

The judge—who'd challenged attorneys on both sides of the issue all morning—jumped on that.

"Sounds like you're conceding the ordinance is overbroad," Bushong said. "Can anybody be arrested for having a picnic in the park under this ordinance? Or only homeless people?"

It's a question that may decide the fate of a bedrock statute in the city's strategy for dealing with homelessness ["Having It Out," News, Dec 17, 2014].

Under Portland City Code, you can be jailed for 30 days and fined $100 for setting up a campsite on public property. The code defines "campsite" as "any place where any bedding, sleeping bag, or other sleeping matter, or any stove or fire is placed, established, or maintained, whether or not such place incorporates the use of any tent, lean-to, shack, or any other structure, or any vehicle or part thereof."

Sherwood wasn't wrong. Technically, it could apply to a picnic.

The camping ban has been challenged before. It's even been ruled unconstitutional before, in a 2000 Multnomah County Circuit Court case about two men sleeping in their truck. Still, other local judges have found the ban passes muster. And the most prominent previous challenge, brought by a group of homeless campers and filed in federal court, ended in a settlement.

But there is, to date, no definitive ruling from a higher court as to the ban's constitutionality. Which makes the arguments heard by Bushong—the respected judge who singlehandedly dismantled Portland's "sit-lie" law in 2009 ["Sit-Lie Dies," News, July 2, 2009]—potentially vital.

At issue is whether the court should toss a host of charges against a homeless woman, Alexandra Barrett, who's been arrested repeatedly for camping—mostly in downtown's Chapman Square. As they have with others, cops have often also tacked on more serious "interfering with a peace officer" charges to the camping citations, which gives them the power to make an arrest ["Can't Sleep Here," News, July 30, 2014].

Barrett's public defenders say the charges are unconstitutional, arguing the ban effectively outlaws homelessness since many Portlanders have no choice but to sleep outside. And if Bushong agrees, his ruling could help set a precedent for how Portland handles camping moving forward, either by forcing an appeals court to take up the matter or influencing city policy.

It's clear Bushong is taking the case seriously.

The judge hectored Barrett's attorney, Francis Gieringer, about the circumstances of the woman's homelessness. Was she truly without options other than camping?

"Some people choose to be homeless," Bushong noted.

When the judge turned his inquisition on Sherwood, he wondered if it should be solely a cop's discretion whether someone's "camping" or not. Bushong contrasted that with a shoplifting case where an officer might not write a thief a ticket if they gave back a freshly stolen candy bar, even though there would be no doubt that the person had committed a crime.

"If the officers have the discretion to interpret this ordinance, is that an impermissibly vague or overbroad statute?" Bushong asked. "That seems to be what the courts talk about in terms of vagueness or overbroad statutes."

The answers to these questions will have to wait. Bushong held off a ruling until early February at the earliest, to give prosecutors the opportunity to file an additional brief, and public defenders a chance to respond.

"This is a very thorny issue in that it is important to many people," Bushong said, "and it's one I'm not going to decide lightly."