- ILLUSTRATION BY FRANÇOIS VIGNEAULT
A Multnomah County judge ruled this morning Portland's camping ban is perfectly legal, stymieing the latest attempt to rein in a controversial strategy for dealing with homelessness via the courts.
In a 19-page opinion, Multnomah Circuit Judge Stephen Bushong found that the law passes constitutional muster. It doesn't, as public defenders had argued, amount to cruel and unusual punishment or restrict a person's right to travel in the city. And it's not vague or overbroad, Bushong found.
Most broadly, the judge slapped down the central contention attorneys challenging the ban had tried to bring: That it penalizes homeless people simply for being homeless, since they have no choice but to stay outside in many cases.
"The Ordinance, on its face, does not impermissibly punish someone for their homeless status," Bushong wrote. "The Ordinance punishes conduct—camping on public property—not the status of being homeless."
And while the judge said figuring out whether the camping ban criminalizes the consequences of homelessness "is a more difficult question," he ruled that it did not.
Portland's camping law makes it illegal "for any person to camp in or upon any public property or public right of way," and offers fuzzy guidelines about what "to camp" and "campsite" mean.
For all its import—not leastly because of the chilling effect it could have on other, future challenges to the camping ban—Bushong's ruling came in a run-of-the-mill proceeding in a criminal court case. Public defenders for a homeless woman named Alexandra Barrett filed a motion late last year asking the judge to dismiss scads of camping-related charges against her, arguing the ban violated key portions of the Oregon and US constitutions.
The motion led to a flurry of court filings, and a notable hearing late last month where attorneys on both sides made their arguments before the judge. With Bushong's ruling today, the criminal cases against Barrett on roughly 20 charges will move forward. A trial is set for early March.
"We are of course disappointed in the judge’s decision, but we are ready to proceed to trial on these charges, which we think raise important constitutional issues," said Sara Mulroy, an attorney with Metropolitan Public Defenders, who represents Barrett.
A call to the Multnomah County District Attorney's Office, which fended off the challenge, hasn't been returned.
Bushong's opinion leans heavily on prior opinions from courts throughout the country. He notes that similar camping bans have been upheld elsewhere, and he says a local federal judge—presiding over another recent challenge to the ban—said there were "legitimate governmental interests of safety and sanitation" involved in the Portland law. And a past ruling in the Oregon Court of Appeals preempted him from finding that the ordinance was vague he said.
Beyond the legalese, though, the judge had a more straight-forward message: It might not be illegal, but the camping policy is ill-advised.
"The City’s anti-camping ordinance is not the solution to this complex problem," Bushong wrote. "Arresting people who are struggling to survive in the streets just because they have no place else to go is not the answer. We must do better than that. But determining the best ways to address this difficult problem is the job of public policymakers, not the courts."
The decision comes a day after public defenders filed their final brief before the court, attempting to use a recent e-mail sent by Commissioner Dan Saltzman to help prove the ban is flawed.
As first reported by the Mercury, Saltzman sent an email February 20 to around 15 local agencies that might enforce the camping ban or otherwise clear out homeless encampments. They should hold off on all that stuff from January 21 to February 3, said Saltzman, the city's housing commissioner, so the county's every-other-year homeless count could proceed without undue disruption.
"To ensure that the count is as accurate as possible, we are requesting that all entities in Multnomah County that enforce the anti-camping ordinance or conduct homeless camp clean-ups suspend enforcement," Saltzman wrote. According to the housing bureau, every recipient of the e-mail announced it would comply except for Union Pacific Railroad.
The request wasn't anything new. Similar pleas have gone out in past years during the count. But for Mulroy and her colleague Francis Gieringer, the request was proof of how "arbitrary and unequally applied" the law is.
They argued the e-mail "demonstrates not only how the city camping ordinance, although facially neutral, is directly targeted at the homeless population, but also illustrates the arbitrary and capricious nature of, the ordinance where its enforcement is suspended at the city's whim. This is exactly the kind of haphazard, standardless administration of the law that is forbidden" under the Oregon Constitution.
Bushong, today, disagreed.