'Legal chess playing' likely as Portland camping ban takes effect

PORTLAND, Ore. (KOIN) -- A new Portland city ordinance allowing the city to fine or jail homeless people who refuse to take the offer of a shelter bed takes effect Monday, weeks after the City Council adopted this camping ordinance and just days after the US Supreme Court upheld a case from Grants Pass.

In a 6-3 decision, the Supreme Court reversed a decision by the 9th U.S. Circuit Court of Appeals that largely blocked a camping ban as unconstitutional to punish people for sleeping outside when there is not adequate shelter space.

While that decision has national implications, it is different from the Portland ordinance adopted by the City Council in May.

The ordinance -- unanimously approved -- includes new public camping regulations that Mayor Ted Wheeler said would clarify the definition of camping as well as the reasons for prohibiting camping when a person does not have or declines “reasonable alternative shelter.”

Read: Portland Camping Ordinance

Wheeler’s proposal also clarified how camping cannot take place on public property and reduces criminal sanctions while replacing warnings with diversion tactics.

Under the new ban, people who are offered shelter can accept it or face penalties. Violators can be punished with a fine of up to $100, up to seven days in jail or both.

What to expect going forward

Attorney John DiLorenzo, who sued the city on behalf of several disabled Portlanders and won the case where they claimed the city violated disability laws by allowing tents and tarps on sidewalks, told KOIN 6 News Saturday this camping ban ordinance will take some time but will be effective.

"I think its going to be a slow ramp up. But I think it will be a ramp up nevertheless. I think the first thing we're encouraging the city to do is to double down on making sure that the sidewalks are clear," DiLorenzo said.

"There are lots of opportunities for the city to get people into shelter space, into housing. And I think the latest version of the camping ordinance will do that because I understand that the enforcers, enforcement people will have apps available to them that will let them know at any particular point in time whether there's shelter space available," he said. "And if there's shelter space available, they're going to offer it to people. And if people resist at that point for a number of reasons, maybe they don't want to follow rules or whatever, then there'll be other options available to the enforcement personnel."

Lewis & Clark law professor Tung Yin said he expects the ordinance to be challenged as a violation of Oregon state law, specifically HB 3115. That House bill, passed two years ago, was based on a Ninth Circuit Court case, Martin v. Boise, that prevented "cities from enforcing criminal restrictions on public camping unless the person has "access to adequate temporary shelter."

The recent Supreme Court decision in the Grants Pass case only addressed the 8th Amendment regarding cruel and unusual punishment, Yin told KOIN 6 News.

"I think it's kind of a weird way to think about this particular issue, because normally what we think of the 8th Amendment is, you know, like tarring and feathering as punishment. Or maybe a life sentence for someone who steals a candy bar. So basically, is the punishment too heavy?" he said.

"Although obviously it does have severe implications for people who are homeless because they can't afford housing. But there are other constitutional rights that I think might bear on camping bans. You might argue it's a violation of due process, for example. You might argue that it's a violation of equal protection, meaning that the only people who seem to be singled out for citations of the camping bans are people who appear to be houseless."

DiLorenzo hopes the Oregon legislature repeals HB 3115 in light of the high court's latest ruling.

What to keep your eyes on

Yin said "legal chess playing" is one thing he would watch for as this ordinance and Supreme Court decisions settle in.

And the venue in which a lawsuit is heard can determine its outcome, he said.

"If the case stops at the Ninth Circuit of Appeals, which is the appellate level below the Supreme Court, that's generally a pretty favorable venue for civil rights plaintiffs. But if the Supreme Court decided to take the case, and they take very few cases every year, but if they decide to take the case, that's not a very favorable venue for civil rights plaintiffs right now," he said.

And if a plaintiff loses at the Supreme Court, "not only is going to take away whatever it is that you had won before, but also apply nationwide."

DiLorenzo is keeping his eyes on Multnomah County leaders.

"What I'm going to watch closely is the number of tents and tarps that the county chair (Jessica Vega Pederson) continues to be putting out into the street, either directly through the Joint Office (of Homeless Services) or through their ideologically-based nonprofits. We have got to turn off the faucet if we're going to have any success clearing the streets and the sidewalks."

Last week, Vega Pederson asked the Joint Office of Homeless Services to pause all tent and tarp purchases following a heated debate.

DiLorenzo is also closely following what Multnomah County does with shelters.

"You know, the city has built more shelter space than the county has. Unfortunately, the county has a lot of money. And what I hope will happen is that the county will basically get with the program that the city is now attempting to implement and start building some shelter space."

KOIN 6 News will continue to follow this story.