DEPUTY DISTRICT ATTORNEY Andrew Sherwood quickly realized his error.
The Multnomah County prosecutor was in the middle of a potentially crucial January 23 hearing over the City of Portland’s ban on camping, and he’d just admitted to a skeptical judge that “it doesn’t take a whole lot to establish a campsite” under city code.
“You could in theory have a blanket for a picnic in Chapman Square, and you could be arrested for that,” Sherwood told Multnomah County Circuit Judge Stephen Bushong.
The judge—who’d challenged attorneys on both sides of the issue all morning—jumped on that.
“Sounds like you’re conceding the ordinance is overbroad,” Bushong said. “Can anybody be arrested for having a picnic in the park under this ordinance? Or only homeless people?”
It’s a question that may decide the fate of a bedrock statute in the city’s strategy for dealing with homelessness [“Having It Out,” News, Dec 17, 2014].
Under Portland City Code, you can be jailed for 30 days and fined $100 for setting up a campsite on public property. The code defines “campsite” as “any place where any bedding, sleeping bag, or other sleeping matter, or any stove or fire is placed, established, or maintained, whether or not such place incorporates the use of any tent, lean-to, shack, or any other structure, or any vehicle or part thereof.”
Sherwood wasn’t wrong. Technically, it could apply to a picnic.
The camping ban has been challenged before. It’s even been ruled unconstitutional before, in a 2000 Multnomah County Circuit Court case about two men sleeping in their truck. Still, other local judges have found the ban passes muster. And the most prominent previous challenge, brought by a group of homeless campers and filed in federal court, ended in a settlement.
But there is, to date, no definitive ruling from a higher court as to the ban’s constitutionality. Which makes the arguments heard by Bushong—the respected judge who singlehandedly dismantled Portland’s “sit-lie” law in 2009 [“Sit-Lie Dies,” News, July 2, 2009]—potentially vital.
At issue is whether the court should toss a host of charges against a homeless woman, Alexandra Barrett, who’s been arrested repeatedly for camping—mostly in downtown’s Chapman Square. As they have with others, cops have often also tacked on more serious “interfering with a peace officer” charges to the camping citations, which gives them the power to make an arrest [“Can’t Sleep Here,” News, July 30, 2014].
Barrett’s public defenders say the charges are unconstitutional, arguing the ban effectively outlaws homelessness since many Portlanders have no choice but to sleep outside. And if Bushong agrees, his ruling could help set a precedent for how Portland handles camping moving forward, either by forcing an appeals court to take up the matter or influencing city policy.
It’s clear Bushong is taking the case seriously.
The judge hectored Barrett’s attorney, Francis Gieringer, about the circumstances of the woman’s homelessness. Was she truly without options other than camping?
“Some people choose to be homeless,” Bushong noted.
When the judge turned his inquisition on Sherwood, he wondered if it should be solely a cop’s discretion whether someone’s “camping” or not. Bushong contrasted that with a shoplifting case where an officer might not write a thief a ticket if they gave back a freshly stolen candy bar, even though there would be no doubt that the person had committed a crime.
“If the officers have the discretion to interpret this ordinance, is that an impermissibly vague or overbroad statute?” Bushong asked. “That seems to be what the courts talk about in terms of vagueness or overbroad statutes.”
The answers to these questions will have to wait. Bushong held off a ruling until early February at the earliest, to give prosecutors the opportunity to file an additional brief, and public defenders a chance to respond.
“This is a very thorny issue in that it is important to many people,” Bushong said, “and it’s one I’m not going to decide lightly.”
If somebody chooses to be homeless, as if that were somehow an exception for police, prosecutors, and politicians to wipe their collective asses with the Constitution, then it would have to be proven in a court of law that the defendant chose to be homeless.
Bushong is being a cute, little, smart ass. He will rule against the homeless.
Common sense, people. We should absolutely have more than enough free, easily cleanable, lockable tiny overnight furnished sleeping rooms, weekly storage rooms, and common private showers for use by anyone between 20:00 (8pm) to 12:00 noon every day all year long. 8 hours is easily enough time to clean up for the next night’s sleepers. The cleaning jobs can be paid in cash by the city on a daily basis. Sleepers can sign up when they check in for the paid cleaning work. No clean and sober rules of big brother excluding people based on their own personal choices of consumption. The point can not always be the long term goal of changing behaviour. We need to address the daily needs of people too.
However, we as a society should also have the dignity to admit and enforce rules against what we all damn well know is a homeless person making public space into their private space. That’s our space as a city, not that one persons! People wash their fricking clothes in city water fountains. It’s gross and it should be illegal! If you can’t tell if the person is on a picnic or homeless you’re a fricking idiot in denial.
The problem is that the overly inebriated are too unruly to deal with peacefully. Saint Boniface Catholic Church in the Tenderloin neighborhood of San Francisco, opens the doors for the poor to sleep on the pews, from six AM until three PM. I suspect that’s because most drunks are about ready to pass out by the crack of dawn.
http://thegubbioproject.org/services/
Dread; and they should have to prove that being homeless is a crime in the first place.
timothy; right on to most of it but keep in mind there is a very big difference between someone (homeless or not) taking a nap in a wide open park and someone washing shit infested clothes in a public fountain causing health concerns.
Maybe the city and other businesses should be prosecuted for marking off every square inch of land given to us all for free by nature (or whatever) with no trespassing signs. WHERE THE HELL DOES ONE HAVE TO GO? Has no one noticed that even the most isolated areas under highway bridges and in the woods are marked with no trespassing signs? Maybe that’s another reason why they end up on your sidewalk. Now even those who do risk trespassing to stay out of the way of the city streets will be sent to jail at a cops discretion. This is not a solution.
My true frustration is with the overwhelming majority of people who do not understand you cannot limit someones rights of congregation, establishing a domicile, getting a nights rest, and right to not being harassed by cops treating you like a slave or criminal when you’ve done nothing to deserve such treatment, without likewise limiting your own entitlement to those rights. When you see a person on the sidewalk (awake not camping) the question should be are they physically intruding or obstructing peoples space or endangering them in some other way. If not then you should see someone who just reaffirmed your right to be somewhere in society and -whether you chose to live that way or not- that life is ultimately free of monetary charge. People who never have or will be on the streets are narrowing their own freedoms.
If they are sleeping one should consider the fact that people sleep inner city instead of the woods because of proximity to resources, safety in numbers (hopefully), and to not be isolated and keep their head up by having some sense of community within a society that has given them no where but a pissed on sidewalk to sleep on and has jumped to questioning their right to even that much before committing itself to creating alternatives.
Outlawing camping on a sidewalk is one thing, but stating it so general as ‘public property’ is the real problem because now every square inch of non – privately owned property is jail bait for someone who is just fucking tired and wants some sleep. Why not just have a city inspector walk around and make sure they are keeping slightly off the map camp sites up to code?
This judge cannot handle this appropriately without bringing other policy reforms to the table.
Ohh well our freedom gets hashed out behind closed doors by a few guys in suits whats new.
ps- the yellow crime tape used under the Burnside bridge for a year and a half after the crime was committed is legal? I thought police tape was for investigative not preventative measures. shady tactics to break people up, especially considering mayor hales and the cops contributed to establishing the environment conducive to such violent crime to begin with. All was peaceful until he (dumb ass) started his ‘war on the streets’ and ingeniously started herding people like rats into one hole too small to fit everyone. Boom fights started breaking out within a week. Then someone dies and all that results is people being broke up not the real perpetrators of the crime being put in check (the cops + Mr. dumb ass).
fuck you hales
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Portland State University is a public institution, yet the abusive, PSU Safety Patrollers will insist that it’s private property. When they exclude as if for trespassing, US citizens, resident in Oregon, who are admitted students, there is no accountability for the infringement of the Constitutional Right to Freedom of Movement.
Oh you guys stop- it’s hilarious you believe anybody has constitutional rights any more…
You can camp on the sidewalk overnight for a parade or new Apple products in this city but God forbid you do it do to being homeless.