Street Roots • Aug. 14-20, 2015
News
Page 5
Feds: Don't criminalize
homeless for camping
The Department o f Justice's statement could
affect the future o f Portland’s camping ban
BY EMILY GREEN
STAFF W RITER
| j eoPle experiencing homelessness and
their advocates got a powerful new
■A. ally in their comer when it comes to
decriminalizing sleeping outdoors - the U.S.
Department of Justice.
On Aug. 6, the justice department
declared that when shelters are full, it’s
unconstitutional to prosecute homeless
people for sleeping outside.
The declaration came in the form of a
DOJ-issued statement of interest in an
ongoing lawsuit brought by homeless
residents against the city of Boise in 2009.
Several homeless plaintiffs in Janet F. Bell
v. City of Boise argue Boise’s ordinances
that make sleeping in public places a
misdemeanor criminalizes homelessness
because shelters in the city are often full,
forcing those without homes to sleep
outside. This, they claim, violates their
Eight Amendment rights - and the DOJ
agrees.
Ed Johnson, director of litigation at
Oregon Law Center, says the DOJ’s
statement will “absolutely” help any
litigation that may come against Portland’s
camping ban in the future.
“I’ve been doing housing law for 20
years,” says Johnson. “I’ve represented a lot
of homeless people in Portland and around
Oregon and many of them tell me the last
place in the world they want to be sleeping
was on the stree t”
As in Boise, Portland’s shelters are often
full. According to Tony Bernal,
spokesperson for Transition Projects, the
primary operator of shelters in Portland, the
wait time for its women’s shelter is 7.5
months, and the men’s shelters generally
have wait times of about 5 to 6 months to
get in.
“Portland has fewer shelter beds per
capita than most major cities,” he says,
adding that Portland also has a higher rate
of unsheltered homeless as well.
M
W ARRANTS, from page 4
“You’re the government,” he says, “you
should figure out a way.”
Mat dos Santos, legal director of ACLU
Oregon says, “I would think the burden on
the criminal justice system (to show the
warrant) is very small, but the right that is
infringed is very big.
“We really want to make sure that when
we’re dealing with taking away someone’s
fundamental liberty - which is what an
arrest does, it is the most basic way of
depriving somebody of liberty - that every T
is crossed and every I is dotted, because
that’s sort of the heart of due process.”
Additionally, he says, the statute not only
provides guidelines for arresting officers,
A similar case filed in 2008, Anderson v.
City of Portland, also argued that anti
camping ordinances are unconstitutional.
Four years later, plaintiffs dismissed the
lawsuit when the city agreed to pay each of
them $3,200 and put $37,000 toward the
city’s Rent Assistance Program.
In December, 2013, another group of
people experiencing homelessness sued the
Oregon Department of Transportation about
its clearance of camps. A settlement in that
case, reached in the fall of 2014, changed
little in terms of actual camping policies, but
did require ODOT to follow state guidelines
in posting notices and in the handling of
people’s belongings.
In addition to requiring campers to move,
Portland police have also applied the
misdemeanor charge of interfering with a
police officer on campers that do not leave.
Often cited in camping ban cases is a
2006 decision made by the 9th U.S. Circuit
Court of Appeals in Jones v. City of Los
Angeles. The judges ruled Los Angeles
could not legally punish homeless
individuals for sleeping outside when
shelters are full.
But-because the decision was retracted as
part of a settlement, it has no persuasive
authority, says Johnson.
The statement of interest recently issued
by the DOJ sought to clarify the’decision in
the Jones case, and stated the Idaho District
Court should adhere to the analysis of that
decision when evaluating Boise’s anti
camping ordinances.
The statement crafted by DOJ attorneys
reads, “If the Court finds that it is
impossible for homeless individuals to
secure shelter space on some nights
because no beds are available, no shelter
meets their disability needs, or they have
exceeded the maximum stay limitations,
then the Court should also find enforcement
of the ordinances under those
circumstances criminalize the status of
being homeless and violates the Eight
Amendment
to the
Constitution.’
This statement will serve as
stronger evidence in future litigation than
the commonly referenced Jones case
decision.
“Anyone who brings these cases in the
future,” says Johnson, “will have the voice of
the United States Department of Justice on
their side. It’s a big deal. It’s a powerful
voice, and could be the decisive voice in
those cases.”
But in Boise, the outcome is ultimately
up to the presiding judge, who is expected
to render a decision later this month.
The Idaho Statesman reported that since
the lawsuit was filed, Boise “has amended
its ordinanceto prohibit police from
enforcing the camping and sleeping
ordinances when there is no available
overnight shelter.” It also.quoted a city
spokesperson as saying this makes the
DOJ’s filing “incorrect.”
But many municipalities with anti-
camping ordinances that don’t take shelter
vacancy into account^ such as Portland, may
be affected.
According to his spokesperson, Dana
Haynes, Mayor Charlie Hales is aware of
the DOJ statement, but because it’s a policy
statement and not a ruling, the city is not
yet sure what the impact will be and is
waiting for the City Attorney’s Office to
finish its analysis.
Ellen Osoinach with the Portland City
Attorney Office says the city “is aware of
and has read the DOJ’s brief with interest,”
but she cannot tell Street Roots what impact
the brief will have on Portland’s anti-
camping ordinance as doing so would
require her office to give readers legal
advice, and “unfortunately, I cannot do
that.”
Paul Boden, Director of the Western
Regional Advocacy Project (WRAP), says
the statement may help efforts to pass
“Right to Rest” litigation in Oregon,
California and Colorado. The predominant
force behind such litigation, WRAP is made
up of community organizations across the
country, including Street Roots and Right 2
Survive in Portland.
“This does give a lot of credence to why
the state of Oregon needs to take very
seriously the Right to Rest Act,” he says.
During the 2015 legislative session, a bill
to establish Oregon’s Right to Rest Act died
in committee. It would have granted
homeless people the right to rest, eat and
pray in public spaces and to camp inside
their vehicles in public spaces.
Shannon Singleton, director of the
housing assistance program JOIN, says
camping bans and other laws that
criminalize homelessness, “further the
negative stigma of homelessness and fail to
see the humanity of our neighbors stuck
sleeping outside while also failing to meet
the objective of not having people sleep in
public spaces.”
According to Johnson, the DOJ’s position
“puts some burden on the municipality that
has this ordinance to show that the person
they’re ticketing, the person they’re
prosecuting, has some options besides
sleeping on the street”
.The best way to make sure people have
options to sleeping outdoors, he says, is to
invest in affordable housing.
“If you have enough affordable housing
and the shelter system is available, then the
people who want to access the shelter
system, who don’t want to sleep on the
streets, will be able to do so,” he says.
but also exists to make the public aware of
what their rights are during an arrest
O’Connor’s complaint recommends
Portland police officers “familiarize
themselves with the statutes related to their
arrest powers,” and that they “put in place a
simple system to print copies of relevant
warrants” so they can be served “prior to or
at the time of booking into jail.”
In Hillsboro, “Most people that get picked
up don’t ask to see it,” says Hillsboro police
spokesperson L t Mike Rouches, “and I
don’t know that it’s their responsibility to
ask, right? To me it seems pretty reasonable
that we would show it to them - like we do
with a search warrant.”
Rouches says he was unaware of the state
law requiring officers to serve arrest
warrants prior to Street Roots’ inquiry. But
now, he says, “I’d better look at the law, and
(Hillsboro Police Department) should
probably show them every time because if
that’s what the law sa^s, that’s what we
should do.”
O’Connor says his clients are often
confused about the nature of their arrest,
and that having access to their warrant
would help them understand exactly what
they are in jail for.
Severe agrees that given the vulnerability
of many people interacting with the justice
system, at least one part of the confusion
for them could be cleared up if law
enforcement complied with this law,
however, he says, “I don’t think it’s the
silver bullet that would clear up everything.”
Street Roots asked the Oregon Attorney
General’s Office if police departments are
allowed to pick and choose which laws they
follow, and we asked why no one is checking
to make sure that law enforcement agency
policies across the state are aligned with
state laws.
A spokesperson for the attorney general’s
office told Street Roots that DPSST “has
jurisdiction over this area.”
According to Gabliks at DPSST, his
agency is responsible for training and
certification only, and each department is
ultimately responsible for developing and
implementing its own procedures and
policies, although in some cases they may
work with the district attorney’s office or
their own legal counsel.