Hall Monitor: Camping Goes to Court

In Portland, people who live outside exist in what feels like an endless cycle of displacement. When someone erects a tent or lays out a sleeping bag on public property, they’ll often find a paper sign posted near their campsite within a few days, informing them that they have anywhere between two to 10 days to move their property—or the city will move it for them.

If they’re not able to relocate in time, people will find their few possessions have been picked up and placed in a city-run storage facility, where that person must call and make an appointment to retrieve it within 30 days. Some homeless Portlanders have accused the city of losing or throwing away their property in the process. If campers are able to move their camp in time, it won’t be long until another posting appears above their new resting place.

“It’s emotionally exhausting,” said Alexa Simpson—a Portlander who’s been homeless for two years—in an interview with the Mercury last December. “It’s like they’re beating us down again and again until we leave town, or we die.”

According to two major appeals courts, however, this cyclical policy is constitutionally sound. For now.

In December, the US Supreme Court declined to hear a challenge to a ruling made by the 9th Circuit Court of Appeals, undoing a Boise law that made it a crime to sleep and camp on public property. The three-judge appeals panel argued that the policy violated the Eighth Amendment’s protections against cruel and unusual punishment. “As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter,” wrote Judge Marsha Berzon in the opinion.

Then, in January, the Oregon Court of Appeals dismissed a challenge to Portland’s own public camping ban. In this case, Portlander Alexandra Barrett had appealed criminal charges that had been filed against her in 2015 for camping in public. As with the Boise case, Barrett argued that Portland’s ban was unconstitutional because the city offered no other place for her to rest. The appeals court, however, said the case lacked enough evidence to prove that there were no shelter beds available to Barrett at the time.

Attorneys for the City of Portland say these rulings only underscore how Portland is, in fact, treating houseless citizens constitutionally. That’s because Portland, unlike Boise, boasts a range of open shelter beds, many that don’t have burdensome restrictions around pets, families, or sobriety.

Yet, many houseless individuals and families still feel unsafe and unstable in shelters. And while Portland’s used its city housing bond funds to create low-income housing, the wait lists for tenants are long—if not completely closed. Same goes for any federally subsidized housing in Portland. These realities make the claim that homeless Portlanders are given viable alternatives to sleeping outside ring hollow.

And it’s true that Portland police officers no longer charge people like Barrett with criminal offenses for camping in public. But the city continues to punish campers by taking their property away if they camp in a public space. (That is, if neighborhood vigilantes don’t destroy that camper’s property first.) While the city employees tasked with carrying out this system are arguably the most empathetic to the population they’re tasked with disrupting, the program seems to just barely skirt constitutional regulations.

The courts are paying attention. Although the Oregon Appeals Court chose not to examine the legality of the city’s current homeless camping policy, it did express interest in a future investigation.

In the words of Judge Darleen Ortega: “As I see it, it is not hypothetical that the homeless in Portland are subject to criminal punishment for a circumstance that is, in many cases, beyond their control.”