Oregon lawmakers have passed a bill requiring cities establish "objectively reasonable" policies that allow unhoused people to occupy public property, if no alternative shelter exists.
The requirements of House Bill 3115, which passed the Oregon Senate Wednesday, aren't necessarily new to Oregon communities. When signed by Gov. Kate Brown, the law will essentially enshrine in state statute a 2018 legal ruling by the US Ninth Circuit Court of Appeals, which Oregon cities have already been expected to adhere to.
In the landmark ruling, Martin v. City of Boise, the appeals court decided it was unconstitutional for governments to criminalize conduct that is unavoidable as a result of someone's lack of housing, calling it a form of "cruel and unusual punishment." The ruling prohibits cities from arresting people for sleeping on public property, unless there is adequate indoor shelter available.
While the 2018 ruling applies to all nine states that fall within the Ninth Circuit’s jurisdiction, including Oregon, impacted cities have been slow to update their local ordinances to reflect the decision—which has resulted in litigation. HB 3115 is meant to bring all cities up to speed under this ruling, by requiring communities to rewrite their policies to meet the ruling's standards by July 2023.
The legislation also gives jurisdictions the authority to write laws that go beyond the court order, meaning that some regions could see stronger protections for unhoused residents than others. As we reported in March:
The new legislation would require Oregon cities to reevaluate local policies that regulate “sitting, lying, sleeping or keeping warm and dry” on public property to make sure those rules are “objectively reasonable” in regards to the homeless individuals they target. That means each city could set its own guidelines for determining when it’s “objectively reasonable” to penalize someone for sleeping outside, with the bar being set by the constitutional constraints of Martin v. Boise.
Cities would also be free to create policies that offer much stronger protections for homeless campers than what the Ninth Circuit mandated. For instance, some jurisdictions might decide it’s not “reasonable” to expect all homeless individuals to feel like a homeless shelter bed is a safe or accessible alternative to camping outdoors.
"There are many instances where there may be a single shelter bed available and many reasons why a person might not be able to access that bed,” said Becky Straus, an attorney with the Oregon Law Center, a firm that regularly defends homeless clients and helped write HB 3115. Those reasons can vary: Maybe a person lacks transportation to the shelter, or their pet isn’t allowed in the facility, or they have reason to fear for their physical safety at the shelter.
In March, Straus told the Mercury that Portland currently violates the requirements of Martin v. Boise, since city policy currently threatens homeless campers with fines and imprisonment for camping on public property. Although the city doesn’t always enforce that part of the code, opting to instead give campers ample warnings before introducing penalties (another byproduct of a court ruling), it remains an enforceable piece of city law. With the pending passage of HB 3115, which was introduced by House Speaker and Portland Rep. Tina Kotek, it appears the city will need to update their current rules.
Mayor Ted Wheeler, however, believes the city is already following Martin v. Boise's legal requirements. In a statement shared with Willamette Week, published earlier this week, Wheeler said that the city's policies are “consistent with Martin v. Boise" and said that the ruling is “closely aligned with our values.”
In a letter sent to the legislature, City Commissioner Dan Ryan, who oversees the city's housing-related bureaus, suggested the bill would complicate the city's current campsite clean-up program. Ryan is expected to announce a new city ordinance later this month that would identify public property that could be converted into sanctioned outdoor camping spaces. It's not clear how these campsites would factor in to Portland's work to adhere to HB 3115.