As Mayor Ted Wheeler and Commissioner Dan Ryan have fast-tracked a proposal to criminalize homeless camping and create mass encampments through City Council, few have discussed whether or not the plan would pass legal muster. 

A review of recent cases by attorneys familiar with laws regarding homelessness, however, finds that it might not. 

"No matter how popular criminalizing homelessness might become, it does not render it lawful," writes ACLU Legal Director Kelly Simon in a letter sent to Portland City Council Thursday morning.

Wheeler and Ryan’s joint proposal heading to a final council vote Thursday afternoon would allow law enforcement to threaten Portlanders with prosecution for sleeping on public property if they don’t agree to enter a shelter or move into so-called “sanctioned campsites” created by the city. Per the ordinance, the mass camps would be able to hold up to 500 people, offer hygiene services, food, and social service support, and cost up to $22.5 million. The city has yet to identify a committed source of funding for this project.

The proposal also includes language compelling Multnomah Country to speed up their process of opening new shelters already funded with public dollars and compelling the state legislature to give the city at least $50,000 to fund the creation of homeless shelters. 

As of March 2022, shelters in Multnomah County had room for roughly 1,600 people per night, while an estimated 3,057 people were living unsheltered in the county.

The ACLU of Oregon's Thursday morning letter, sent to Portland's city attorney and all members of the City Council, asks the city delay the afternoon vote, noting that the plan "does not accomplish anything concrete except to invite litigation." 

Simon points to the most influential case impacting the proposed ordinance is Martin v Boise, a 2018 ruling from the Ninth Circuit Court of Appeals which determined that punishing unhoused people for sleeping outside on public property in the absence of alternative shelter is unconstitutional. That decision applies to all states within the Ninth Circuit’s jurisdiction, which includes Oregon. 

The question facing Portland is: If the city threatens a person with criminal penalties for sleeping outside and there is not adequate indoor shelter space available, would the proposed sanctioned campsites be considered an alternative shelter?

Last year, a federal judge in California determined that sanctioned campsites could not be considered shelter. In April 2021, Chico police gave a group of around 60 unhoused people camping on public property a 72-hour-notice to vacate—threatening criminal penalties to those who remained. Because the city didn’t have enough shelter space for the displaced campers, the city was immediately hit with a lawsuit from those campers for violating Martin. Not long after, the city opened a “temporary resting site” for outdoor tent camping that could hold up to 572 campers. 

Chico city attorneys argued that this site was adequate shelter to allow the city to continue banning homeless camping. A federal judge disagreed. US District Court Judge Morrison England issued a preliminary injunction in July, effectively blocking the city’s camping ban until the case was resolved. In his ruling, England reviewed different definitions of “shelter,” and concluded that the resting site did not meet any of those definitions. 

“It is an asphalt tarmac with no roof and no walls, no water and no electricity,” England wrote. “It is an open space with what amounts to a large umbrella for some shade. It affords no real cover or protection to anyone.”

The city eventually reached a settlement agreement with the plaintiffs, agreeing to open an outdoor shelter site made up of 177 tiny homes in exchange for allowing law enforcement to continue to uphold the city’s campaign ban.

The Ninth Circuit Court of Appeals doubled down on its Martin ruling earlier this year, in which it deemed a camping ban by the city of Grants Pass unconstitutional, since the southern Oregon city did not have enough shelter space available for its unsheltered homeless population. 

The ACLU's Simon makes clear in the Thursday letter that the ACLU along with their client, Street Roots, a nonprofit that employs homeless Portlanders to sell newspapers, is fully prepared to bring a federal lawsuit against the city for violating the constitutional protections upheld in Martin—even before the ban is enacted. 

"Street Roots and its members and supporters need not wait for the city to enforce its camping ban in violation of their Eighth Amendment rights in order to seek court intervention," writes Simon.

Under Portland’s proposed camping ban, there is no guarantee that the city will have enough shelter space available if the ban goes into place. 

And even if indoor shelter is available, it will need to align with another definition baked into the Martin decision. The Martin ruling decided that it was considered cruel and unusual punishment to criminalize someone for sleeping on public property if “no sleeping space is practically available in any shelter.”

According to Tristia Bauman, senior attorney at the National Homelessness Law Center, lower courts have considered shelters not to be “practically available” for a number of reasons, including not being accessible to disabled people, forcing religion on its residents, or creating a space where a residents’ mental health is negatively impacted. 

Bauman also said it’s increasingly common to see cities create sanctioned campsites in tandem with camping bans. 

“We’re seeing [sanctioned camps] being used to justify criminalization policies outside of encampments,” Bauman told the Mercury Wednesday. She said there’s no evidence that these policies actually address homelessness. 

“So long as we’re using a one-size-fits-all approach premised on segregating people in poverty rather than addressing the reasons people are in homelessness,” said Bauman, "we will not solve homelessness.”

The ACLU's legal filing doesn't just condemn the potential ban. The letter also accuses the city of partaking in "political theatre" by allowing the camping ban to be rushed through City Hall before Election Day and prioritizing the perspective of business lobbyists in the policy over the voices of those experiencing homelessness.

Last week, commissioners heard from more than 200 people at a City Council hearing on the proposed plan. However, due to a request from Ryan's office to place business lobbyists groups in favor of the camping ban at the front of the queue, many people who signed up to testify who had experienced homelessness—including Street Roots staff—had to wait hours to have their voices heard. 

"Money and political opinion should not determine your place in line to talk to elected officials," Simon writes. "The council should pause until it can create an unbiased forum that intentionally considers accommodating those who were harmed by last week’s deprioritization. Given the impacts of last week’s discrimination, that day is not today."

The city has yet to respond to the ACLU's request. The vote is scheduled for 2 pm today.