A city crew removing items from a homeless encampment from a public sidewalk in November 2020.
A city crew removing items from a homeless encampment from a public sidewalk in November 2020. Alex Zielinski

It’s been two years since a federal appeals court prohibited Oregon and other neighboring states from penalizing individuals for sleeping on public property if there was no alternative shelter available.

Yet many Oregon cities, including Portland, still have policies in place that contradict the landmark ruling, allowing homeless residents to continue cycling through local jails and racking up fines. To address that, state lawmakers are now considering a bill that would nudge Oregon jurisdictions to rewrite those policies to avoid costly litigation. The legislation would allow cities to establish restrictions that would go beyond the court order, meaning that some regions could see much stronger protections for homeless residents. But the bill contains no incentive, let alone mandate, to do so.

In the midst of an economic crisis that threatens to force an additional 89,000 Oregon households into homelessness, homeless advocates and civil rights attorneys question whether the bill does enough to defend Oregon’s unhoused population from over-criminalization.

“I see this as a delay tactic that still allows cities to address their homelessness issue through criminalization,” said Benjamin Donlon, an organizer with the Western Regional Advocacy Project (WRAP), a homeless advocacy group. “It’s the opposite of ambitious. Right now, that’s not enough.”

Oregon’s House Bill 3115 was created as a direct response to the Ninth Circuit US Court of Appeals’ 2018 decision. At question was a 2009 Idaho case titled Martin v. Boise, in which six homeless residents challenged the City of Boise’s ability to fine them for violating the city’s anti-camping ordinance. The appeals court determined the city’s policy to be unconstitutional, ruling that any laws that penalize homeless people for sleeping outside when there is no alternative shelter available to be a form of cruel and unusual punishment. The decision prohibits cities from criminalizing 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. That’s already stuck several cities, like Southern Oregon’s Grants Pass, with expensive lawsuits for upholding punitive anti-camping policies.

HB 3115 aims to do two things: Prevent more lawsuits by making cities update their outdated policies, and enshrine homeless rights by getting state statute to reflect Martin v. Boise. While the US Supreme Court has rejected an appeal to the Ninth Circuit’s ruling, the protections guaranteed in Martin v. Boise could still be overturned in future cases that do reach the Supreme Court. Passing HB 3115 would make sure those protections still apply to homeless Oregonians, even if they disappear at the federal level

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."

“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.

Despite those factors, Straus said that under the current Martin v. Boise guidance, “Someone may still be policed unjustly simply because there is one bed available at a congregate shelter.” That’s why the Oregon Law Center wanted HB 3115 to go farther than the appeals ruling.

“Codifying the Martin v. Boise framework takes us away from discussing the nuances of these policies,” said Straus. “It makes cities look at much larger solutions, that include everything from the availability of permanent supportive housing all the way down to sanctioned outdoor camping. And that will differ based on local jurisdiction. What works for some cities might not work for others.”

In Portland, where the city’s homeless population still accounts for more than half of all arrests in the city, elected officials don’t seem eager to use the bill as an opportunity to explore more progressive solutions to homelessness.

It doesn’t help that Portland’s policy for removing homeless encampments still violates the basics Martin v. Boise, according to Straus. The city’s code 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, it remains an enforceable piece of city law.

A letter sent to the state legislature by City Commissioner Dan Ryan suggests HB 3115 would conflict with the city’s current policies around removing homeless encampments.

“We would like to see a narrower definition for ‘public property’ [in HB 3115] to ensure that local jurisdictions can place reasonable restrictions of the use of public space, specifically as it relates to environmentally sensitive land and structures like tents on sidewalks,” writes Ryan, who falls short of explicitly endorsing or opposing the bill.

This ability to allow jurisdictions to set their own guidelines, however, is one of the main reasons HB 3115 has garnered little explicit opposition at the legislature, where it’s been introduced by House Speaker and Portland Rep. Tina Kotek. That was the bill’s intention. Straus called the legislation a “consensus bill,” as it’s the end product of largely closed-door negotiations between Oregon Law Center and the League of Oregon Cities, a lobbyist group representing the interests of Oregon cities that hasn’t always seen eye-to-eye with Oregon Law Center. While the Oregon Law Center has historically defended the rights of individuals impacted by city laws, the League of Oregon has sought to protect city governments’ ability to uphold those laws.

With its jurisdictional flexibilities, HB 3115 acts as a happy medium of sort for both interests. For the League of Oregon Cities, the cities they represent will be empowered to write their own laws while shielding themselves from lawsuits based on the Martin v. Boise ruling. For the Oregon Law Center, homeless individuals will finally be somewhat protected by the appeals court decision and, in some cases, be granted further rights.

But not everyone is in consensus over the bill’s effectiveness.

Kelly Simon, director of the ACLU of Oregon, said that little in the legislation reflects the actual concerns of unhoused people who’ve faced penalties for sleeping outside.

“While it is not a bad thing for our government to look at how its decisions are impacting the houseless community, it is much more powerful to start with the experience of the people that are being harmed,” Simon said. “It appears to me that this is a law coming from the top down.”

Instead of collecting input from actual homeless Oregonian before crafting HB 3115, Simon said, lawyers and lobbyists presented Rep. Kotek with an agreement that met their own needs and could pass bipartisan scrutiny.

"If a decision will impact a particular group of people, we need to involve them in the conversation. That shift of frame of mind is something I’d like to see our government officials do."

“If a decision will impact a particular group of people, we need to involve them in the conversation,” said Simon. “We need to be asking, ‘How do we work with that group directly to problem solve?’ That shift of frame of mind is something I’d like to see our government officials do.”

That framing is reflected in another bill before the Oregon Legislature this session that hasn’t seen the same success as HB 3115.

House Bill 2367, dubbed the “Right to Rest Act,” would prohibit law enforcement and other public employees from harassing or criminally penalizing individuals for sitting, standing, sleeping, sharing food, or praying on public property. The policy would offer an exception for public spaces that are closed (like some public parks after sunset) or require fees, as long as jurisdictions designate an “appropriate alternative place” for someone to rest outside.

“It requires a public space that is open to the public to be open to homeless people, unless they are violating some other law or creating an obstruction,” said Tristia Bauman, a staff attorney for the National Homelessness Law Center (NHLC), who helped write the legislation.

The Right to Rest Act was written more as a homeless civil rights bill than as a tool to determine where the limitations of a homeless person’s rights exist, as HB 3115 does. The bill’s authors—a combination of homeless individuals, homeless advocacy groups, and civil rights attorneys—see little difference between cities’ current restrictions on where people are allowed to rest and US rules that excluded people of color, LGBTQ people, or people with disabilities from public spaces (or in the case of Oregon’s Black exclusion laws, from the entire state).

“What we know is there is a long history of people who are complained about for existing in public space because of their identities,” said Bauman. “A park may say it’s open to everyone... but if someone picnicking there appears to be homeless, they may be asked to move along.”

Unlike HB 3115, the Right to Rest Act has the support of the ACLU of Oregon, WRAP, Oregon Justice Resource Center, Sisters of the Road, Right2Survive, Street Roots, and other homeless advocacy organizations. It also has a broad support of houseless Oregonians—and many of their experiences are reflected in the bill’s language. When the bill was scheduled to be heard before the House Judiciary Committee on March 9, more than 80 people registered to testify in support. Organizations had set up call centers for homeless Oregonians in five cities who didn’t have phones to give their testimony. But days before the hearing, the bill was unceremoniously removed from the schedule by Judiciary Chair Rep. Janelle Bynum.

Rep. Wlnsvey Campos, the Washington County freshman lawmaker who introduced Right to Rest Act, told the Mercury her office was never given an explanation why or offered an opportunity to reschedule the hearing—meaning it won’t be moving forward this session. In an email to the Mercury, Campos said she was disappointed with the quick turn of events.

“Oregon’s houseless folks deserve dignity and they deserve to be heard,” wrote Campos. “Our office recognizes the value and importance of centering the voices of our most vulnerable communities and will continue to push for policy that elevates the issues impacting these communities.”

While the Right to Rest Act was not discussed during the March 9 committee hearing, committee members did get to hear public testimony for HB 3115. None of the people who spoke in favor of the bill said they were homeless.

"I personally think progressive lawmakers just didn’t want the public to see them vote against homeless rights."

Donlon, the WRAP organizer, said he later asked Rep. Bynum why she pulled Right to Rest from her committee’s agenda. According to Donlon, Bynum told him the bill just “wasn’t as strong” as HB 3115.

“And who’s to say what that means,” said Donlon. “I personally think progressive lawmakers just didn’t want the public to see them vote against homeless rights.”

A second hearing for HB 3115 has been scheduled for Tuesday, March 23. Donlon said WRAP previously held a neutral position on the bill, but now knowing HB 3115 helped kill the Right to Rest Act, he’ll be testifying in opposition.

Few advocates for the Right to Rest Act believed it would collect the votes needed from representatives to move it out of committee and to a vote on the House floor. What was most important to proponents was the simple opportunity to allow lawmakers’ decisions to be actually informed by homeless Oregonians.

“Oregon lawmakers are essentially making a visible population invisible,” said Bauman.

Bauman pointed to the Colorado Legislature, which has introduced similar “Right to Rest” legislation in recent years. While these bills have never been voted out of committee, lawmakers have made time for public hearings on the legislation each time it's introduced.

“Each year, we saw more people having meaningful discussions about policy proposals and regulations of public space,” she said. “Those conversations attracted stakeholders who we saw change their minds on the policy, like prosecutors and law enforcement. It inspired policymaking at more local levels…. And the conversation was led by homeless individuals.”

Bynum didn’t respond to the Mercury’s request to comment on why she pulled Right to Rest from the her committee schedule without explanation. Yet two days after the Mercury asked about this decisions, the Right to Rest Act was quietly added to an April 13 committee hearing—given a brief 15 minutes for public testimony. It's not clear what purpose the hearing will serve that late in the state's legislative session.

If HB 3115 passes, cities will have until July 2023 to update local laws to meet the new standards. Proponents of the bill say it's during this development process that homeless residents can provide input on how their city will determine when sleeping outside is allowed.

Straus with the Oregon Law Center said her organization intends on offering guidance to each city during this process, during which she “absolutely” wants homeless stakeholders to be at the table. But, like at the state legislature, it could also leave local lobbyists and powerful stakeholders ironing out the details in closed-door meetings.

But Simon, with the ACLU, said that leaving this input to the very end shows where legislators' priorities lie.

"What I see is a bill that names the lived experience of homelessness, but doesn't start with that lived experience," said Simon. "It shouldn't be an afterthought."