"We Must Do Better Than That" Portland's Camping Ban Is Legal, But No One Really Likes It

PORTLAND POLICE harbor no illusions: Arresting and ticketing people for sleeping outside won't solve anything.

"To be very blunt, they're pointless," Portland Police Bureau spokesperson Sergeant Pete Simpson said recently of efforts to enforce the city's ban on camping. "What good is going to come from doing that to someone? What good are we doing by wasting paper on that?"

Still, the complaints come in from all over the city. Concerns about trash-strewn campsites off the Springwater Corridor Trail. Frantic Central Eastside business owners asking that encampments be pushed elsewhere.

"At some level you know the person is not going to do anything with the ticket," Simpson says. "But the person living nearby says, 'At least you wrote them a ticket.'"

Pointless or not—and despite hopes a court challenge might see it vanquished—Portland's camping ban is suddenly on its strongest footing in years.

On February 5, respected Multnomah County Circuit Judge Stephen Bushong issued a sweeping opinion rejecting arguments that the law is unconstitutional. And even though the judge also pointedly criticized the city's policies for dealing with the homeless, his 19-page ruling may infuse the ban with fresh legitimacy in Multnomah County courts.

"I would think this would be persuasive to other judges," says Jim Hayden, a deputy in the Multnomah County District Attorney's Office, which defended the law. "Why would they want to reinvent the wheel?"

The ruling comes in the case of a woman named Alexandra Barrett, who's been cited or arrested again and again for camping-related offenses, netting more than two-dozen charges since June.

As the Mercury's reported, Barrett is bent on fighting those charges. So her public defenders last year decided to use the case to mount an assault on the city's camping law, which has been used to heap increasingly serious charges on the homeless ["Having It Out," News, Dec 17, 2014].

Barrett's attorneys asked Bushong to toss many of her charges, arguing the ban criminalizes people simply for being homeless, since many have no choice but to sleep outside. If the judge agreed, it could have given the city serious pause about enforcing the law.

Bushong didn't agree, though.

Relying largely on past rulings in other jurisdictions, he found the ban passes muster.

"The ordinance, on its face, does not impermissibly punish someone for their homeless status," the judge wrote. "The ordinance punishes conduct—camping on public property—not the status of being homeless."

Similar laws in other cities, he noted, have been ruled legal. And a federal judge in Portland, taking up another recent challenge to the city's camping ban, found the city has "legitimate governmental interests of safety and sanitation," when it came to enforcement.

Bushong knocked each of Barrett's arguments down, one by one. Portland's ordinance, he said, does not amount to cruel and unusual punishment or hamper people's right to travel. And it's not overbroad. It's legal.

"We are, of course, disappointed," said Sara Mulroy, an attorney with Metropolitan Public Defender Services. "But we are ready to proceed to trial on these charges, which we think raise important constitutional issues."

Technically, Bushong's ruling needn't hold much sway. In 2000, Multnomah County Judge Stephen Gallagher came to the opposite conclusion, finding the camping ban unconstitutional and tossing charges against two men. That ruling was never appealed to a higher court, and the city continued enforcing the camping ban largely unheeded.

But Bushong's opinions have drastically shaped city policy in the past. His 2009 ruling against Portland's "sit-lie" law had immediate repercussions.

Hayden, the deputy district attorney, says this is the most thorough vetting the camping law's gotten in decades. He thinks Bushong's ruling gives new clarity to the debate over its enforcement.

"He issued this opinion, and that makes it easier for everyone," Hayden says. "This is the correct decision."

But, like Simpson, Bushong's under no illusions about the camping law. And he closed his ruling by saying so.

"The city's anti-camping ordinance is not the solution to this complex problem," Bushong wrote. "Arresting people who are struggling to survive in the streets just because they have no place else to go is not the answer. We must do better than that."