Update: Portland City Council passed the ordinance discussed in this story June 7. City Council voted 3-1 in favor, with Commissioner Carmen Rubio as the only vote in opposition. Commissioner Mingus Mapps was absent and did not vote on the ordinance.
Editor’s note: This story references sexual and domestic violence.
It's unclear if staffers from Mayor Ted Wheeler’s office and the city attorney’s office realized how right they were when referring to the new city ordinance levying fines and jail time against homeless Portlanders as an “iterative process.”
It's so iterative that Wheeler's proposed ordinance is actually an update of an existing ban on public sleeping. In recent history, the concept and practice of arresting homeless Portlanders is anything but novel.
City Council is expected to pass the ordinance June 7, but the comments from Wheeler’s staffers and the city attorney came during a city attorney and mayor’s office-hosted “Media Event on Background Information” May 25. At the onset of the meeting, which prominently featured City Attorney Robert Taylor and Wheeler’s senior policy advisor Skyler Brocker-Knapp, Wheeler’s communications lead Cody Bowman asked attendees not to quote any individuals who spoke during the meeting.
The meeting centered around Wheeler’s proposed ‘daytime camping ban,’ although the commonly used title is a misnomer. Wheeler’s policy reaches far beyond requiring all homeless Portlanders to break down tents between 8 a.m. and 8 p.m. — it prohibits all homeless Portlanders from using “any vehicle or part thereof, any bedding, sleeping bag or sleeping matter” for the purpose of “establishing or maintaining a temporary place to live,” on public property in that timeframe. At the time of publishing, officials have been unable or unwilling to explain how police will determine when those materials constitute a “temporary place to live."
The ordinance also aggressively limits where homeless Portlanders can “camp,” bans the use of any fires or gas heaters and prohibits the accumulation and disposal of trash on public property.
If any homeless Portlanders violate these provisions, they will, eventually, be subject to arrest — a historically common occurrence in a city where homeless Portlanders were much more likely to be arrested than their housed counterparts from 2017 through 2020. Despite making up approximately 2% of Portland's population, homeless Portlanders represent 50% of all arrests from 2017 through 2020, according to an investigation by nonprofit news outlet Reveal.
Reveal reviewed four years of Portland arrest records and found the vast majority of homeless Portlanders were arrested for non-violent charges, many of which — 40% — were bench warrants for things like failing to appear in court on prior violations. Regardless, the deluge of arrests played out in recent years while homelessness only increased amid a housing affordability crisis.
The main difference between existing practices and Wheeler’s new ordinance is the introduction of proactive policing. Reveal found 60% of homeless-related calls to police contained no explicit mentions of a crime. Upon arrival, police often found no evidence of criminal activity but ultimately arrested someone due to an outstanding warrant from a previous incident.
Under the new ordinance, proactive policing — meaning police contacting individuals with no call from the public or suspicion of ongoing criminal activity aside from being visibly homeless — will be the standard operating procedure.
Maybe this time, the city appears to believe, the iterative process of fining, arresting and jailing homeless Portlanders will work to reduce homelessness, litter and public safety concerns. Meanwhile, critics see a mayor and City Council buckling under immense pressure to simply ‘do something’ and pursuing a politically expedient, but ultimately doomed to fail, route to ease the pressure.
Enforcement
At the heart of enforcing Wheeler’s ordinance — and likely future legal battles for the city, according to experts — is a new warning-then-arrest system, which allows for two warnings before police can arrest a homeless Portlander, who will then be subject to a $100 fine, 30 days in jail, or both.
According to the city, Wheeler’s latest policy is in response to Oregon House Bill 3115, which goes into effect as ORS 195.530 July 1 and requires “Any city or county law that regulates the acts of sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to the public must be objectively reasonable as to time, place and manner with regards to persons experiencing homelessness.” Now-Gov. Tina Kotek sponsored House Bill 3115 as a state representative in 2021.
“The intent behind House Bill 3115 was to affirm that if a city chooses to regulate ‘survival activities’ like sitting, lying, sleeping or keeping warm and dry, those laws must be reasonable, and must take into account both the resources available to people who are and the impact of regulations on people who are homeless,” Kotek’s office said in a statement to Street Roots on June 1.
Kotek’s office also said it’s up to “state and local leaders to address the housing and homelessness crisis in every part of the state with compassion and an outcome centered approach.”
“The Governor supports the City and County’s continued collaboration to increase shelter capacity so people have a place to go during the day,” the statement said. “She also supports a proposed amendment introduced by Commissioner Carmen Rubio intended to limit the enforcement mechanisms until sufficient shelter capacity, including day center capacity, is provided for people who will be impacted and have nowhere else to go.”
Rubio proposed the aforementioned amendment, which would have tied enforcement of the ban to the city's efforts to scale up its shelter options, during the City Council meeting when Wheeler formally introduced the ordinance May 31. No other City Council member supported the amendment, with Wheeler only seconding the motion “for discussion.”
Kotek’s support for Rubio’s amendment comes as no surprise to people involved in the Kotek-convened workgroup around House Bill 3115, now on the books as ORS 195.530, which was designed to force municipalities to consider what specific, concrete resources homeless Oregonians have available to them before passing laws regarding homelessness. Becky Straus, Oregon Law Center staff attorney, was involved with the workgroup on behalf of the Oregon Law Center’s low-income clients.
“The shared intent, the baseline of that (workgroup), in developing the state law was to acknowledge that criminalization and involvement of law enforcement is not a solution to homelessness,” Straus said. “Housing is the solution to homelessness. And so any jurisdiction where we're seeing very challenging restrictions, under the threat of jail time, is clearly directly contrary to what the intent of the law was.”
The existing city code regulating “the acts of sitting, lying, sleeping or keeping warm and dry outdoors on public property” bans sleeping in all public places at all times with no time, place or manner restrictions, which not only runs afoul of ORS 195.530 but is essentially unenforceable due to the 2018 Martin v. City of Boise case. The 9th U.S. Circuit Court of Appeals ruling prohibited fining or arresting homeless people solely for sleeping or resting in public when a municipality can’t offer shelter as an alternative.
Generously, the city can offer overnight shelter to fewer than 30% of homeless Portlanders, based on county estimates of 1,800 to 2,000 total city or county-operated shelter beds, rooms and tiny homes, cursory private shelter estimates and undercutting the county’s rule of thumb for estimating the homeless population (three-to-four times more than Point-in-Time Count totals).
Legal experts agree the city needed to update its code to comply with ORS 195.530 and Martin v. Boise, but Ed Johnson, Oregon Law Center’s director of litigation, said Wheeler’s update (and the similar updates other cities are attempting to enact throughout Oregon), may be on the wrong side of multiple laws, including, but not limited to, the new state law, Martin v. Boise and the 14th Amendment. Johnson told City Council as much during the May 31 meeting.
“I think that the ordinance as drafted is extremely vulnerable to legal challenge in several ways,” Johnson, an attorney who worked on the watershed “Anderson agreement” case against the city in 2009, told Street Roots.
Johnson said he doesn’t see “any scenario” in which the city ordinance meets the standard for “objectively reasonable” under ORS 195.530.
In short, Wheeler seeks to replace an unenforceable ordinance criminalizing homelessness with a new, also potentially unenforceable ordinance criminalizing homelessness — allegedly in response to a state law that sought to lessen the criminalization of homelessness.
The city, for its part, doesn't agree with the charaterization of the ordinance as "criminalizing homelessness," Bowman told Street Roots on June 5, despite the ordinance seeking to impose criminal penalties on homeless Portlanders for violating time, place and manner restrictions.
Wheeler’s other argument defending the ordinance, which he gave during the contentious May 31 City Council meeting, is increasing interactions between police and homeless Portlanders will result in more homeless Portlanders connecting with services.
Legal experts, advocates and homeless service providers bristle at the notion that more police interaction, fines and incarceration will result in homeless Portlanders receiving more services, whether via facilitation by law enforcement or as a result of homeless Portlanders attempting to avoid accruing further legal penalties. Prominent among the reasons? There essentially are no available services, according to Katie O’Brien, executive director of Rose Haven, the only day shelter in Portland specifically serving women, children and gender-diverse people.
“Waitlists are years long,” O’Brien said. “For an agency like ours, that was designed really to be a connector and bridge those gaps for people, those gaps are becoming so vast that we can’t fill those gaps anymore.
“Our model is such that we are reliant on these other resources being available to folks, and they're just simply not (available). And if they have them, they're not to scale to the problem.”
Despite Wheeler’s assertion, nothing in the ordinance mentions connecting homeless Portlanders with services, which is also true regarding his May 31 assertion that homeless Portlanders will have opportunities to do community service rather than face fines and jail time after violating the ordinance for a third time.
"The goal is to connect people with services not to impose punishment, but the City is limited in its ability to create alternative enforcement mechanisms," Bowman said June 5.
Bowman did not directly address a question asking why the city chose to include criminal penalties at all if its goal is to connect more homeless Portlanders with services while complying with ORS 195.530.
What critics see externally is a city government that failed to pursue substantive changes for years, reacting to a game of political Mouse Trap with a game of life-or-death whack-a-mole.
“I think it's obvious from the outside that there is a lot of political pressure to do something,” Tom Stenson, Disability Rights Oregon deputy legal director, said. “There's an increasing sense of crisis about the state of homelessness in Portland. And I think that stems from a long period of basic inaction and indecisiveness around the problem, that there has been a failure to pursue meaningful fixes.
“Usually, when somebody who has not been effective in addressing a problem in the past feels a lot of pressure to do something, they find a politically expedient way to pursue it, which is usually the worst thing, but then they can say they're doing something. This falls into that pattern, that there's so much pressure to do something, anything, that somebody just picked the worst thing they could do.”
‘Involuntarily homeless’
Wheeler’s new ordinance still includes a blanket ban on all “camping” on public property, regardless of time, place or manner, though it includes an exception for those deemed “involuntarily homeless.”
The city defines “involuntarily homeless” as “having no means to acquire one’s own shelter and not otherwise having access to shelter or other alternative options for housing.” The latter portion of this provision means if the city offers a homeless Portlander shelter as they sleep on public property, and they refuse it, they can then be considered “voluntarily homeless” and immediately subject to warning, citation or arrest.
“This is obviously a callous and inaccurate distinction that does not reflect the many legitimate reasons an individual might not be sheltered,” Emily Hawley, ACLU of Oregon senior policy associate, told Street Roots. “Creating this distinction and relying so heavily on it, and foreclosing the ability of someone who left the shelter because they didn't feel safe, and then potentially they could get a citation or get arrested because they didn't feel safe in a shelter. That could absolutely happen under this ordinance.
“And certainly, again, I would argue that is objectively unreasonable.”
The former portion of the provision — “having no means to acquire one’s own shelter” — sticks out to legal experts.
“I think in practice, it’s very messy; it’s very off the cuff,” Hawley said of the “means to acquire one’s own shelter” language. “I have no idea how it would be implemented that way. One of the first things I thought of when I was reading (the draft ordinance) was, so, someone has their last $40. Is an officer gonna see that and say that they could have afforded someplace to stay for the night?”
The city will not make "a determination as to economic status," Bowman told Street Roots on June 5, adding the city will "defer to folks as to what they understand their status to be."
During the “Media Event on Background Information,” city staffers would only say the policy is an “iterative process” and will be “rolled out” over time when asked about how this provision would look in practice. Staffers also mentioned on multiple occasions that mayoral staffers already had conversations with Portland Police Bureau and the District Attorney’s office about enforcement.
Regardless of the city’s plans to enforce this particular portion of the ordinance, Johnson said the city’s definition of “voluntarily homeless” actually differs from the definition set forth in Martin v. Boise, another potential legal sticking point for the proposed ordinance. Rather than a focus on law enforcement’s perception of an individual’s circumstances, Martin v. Boise creates a mathematical standard.
“(Martin v. Boise) basically says in a community where you have more homeless people than you have practically available shelter beds, the police can't punish someone under the assumption that they're living outside voluntarily,” Johnson said. “There’s somewhat of a mathematical piece to it.”
Straus described the city’s attempt at its own definition of “voluntarily homeless” as the city “trying to turn itself into some form of legal pretzel in order to justify over-policing and use of force against people surviving outside.”
Johnson takes issue with multiple definitions the city sets forth in its ordinance, including “any vehicle or part thereof, any bedding, sleeping bag or sleeping matter” for the purpose of “establishing or maintaining a temporary place to live."
Johnson said the ill-defined nature of the definition could allow police to warn, cite or arrest homeless Portlanders for enjoying public spaces in the same way housed Portlanders do, such as laying on a blanket in a park. Bowman told Street Roots the city doesn't have the same concern, but did not directly answer a question about how the city will ensure homeless Portlanders do not risk criminal penalties for such activity.
"We are not concerned about this hypothetical concern being an issue," Bowman said June 5. "We drafted the ordinance and its definitions to avoid these hypothetical situations."
‘Objectively reasonable’
ORS 195.530 requires all laws governing homeless Oregonians’ sit-lie-sleep activity to be “objectively reasonable.” In practice, it appears interpretation of “objective” has been, well, rather subjective.
When asked during the “Media Event on Background Information,” city staff declined to say if anyone, particularly people with disabilities or elderly people, would be exempted from the provision requiring people to break down their entire “camp” each morning. Instead, city staff said it is working with service providers who assist elderly people and those with disabilities, though it remains unclear what exactly the city is working on beyond conversations.
Legal experts point to the “reasonability” standard established in ORS 195.530 as a clear problem for the city’s ordinance. Straus highlighted the city’s perceived lack of outreach and consultation with homeless Portlanders, as well as service providers, as a clear problem for the legal strength of the ordinance.
“(ORS 195.530) says that ‘reasonableness in subsection five shall be determined based on the totality of the circumstances, including but not limited to the impact of the law on persons experiencing homelessness,’” Johnson said. “In the beginning (of ORS 195.530), it also says ‘must be objectively reasonable as for time, place and manner with regards to persons experiencing homelessness.’
“I think (Straus’) point that if the experience of people who are homeless was not taken into account, and it wasn't, (the city) didn't speak to providers or people who were living outside. And in fact, the proposed ordinance makes it impossible for people to legally sleep and stay warm and dry. I don't see any scenario where that can be objectively reasonable under the language in the state law in particular.”
As of June 5, Bowman said the city believes the ordinance will hold up in court.
"We believe this approach is legally sound and that these measures are necessary at this time," Bowman said, adding the city appreciates the feedback it has received.
Bowman did not directly address the possibility of exemptions for disabled or elderly people on the streets when asked by Street Roots.
"We are exploring options for homeless Portlanders with disabilities and/or elderly populations," Bowman said June 5. "We expect these groups to be one of the primary focuses for outreach and services through the City and County."
Marginalizing the marginalized?
Opponents say the ordinance will disproportionately affect particularly vulnerable homeless Portlanders, including women, people of color, LGBTQIA+ people and those with disabilities.
Urban League of Portland, a civil rights and social service organization that advocates for Black Portlanders, opposes the ordinance.
“We have concerns about the proposed camping restrictions,” Stephanie Phillips Bridges, Urban League of Portland senior policy analyst, told City Council on May 31. “Homelessness is traumatic. The proposed amendments (to existing city code) will only cause more trauma. This is more acutely felt if you are Black and homeless.”
Phillips Bridges pointed out “criminal trespass,” a charge often brought against homeless people, has been disproportionately used against Black people in other jurisdictions.
“The proposed camping restrictions will undoubtedly lead to an increase in the criminalization of Black people whose only crime is poverty, especially if they are homeless,” Phillips Bridges said. “Studies show homeless people are arrested at higher rates in Portland. Between 2016 and 2019, about 51% of all homeless people booked in Multnomah County were charged with criminal trespass, theft and disorderly conduct. It is inequitable to charge and arrest people experiencing homelessness with criminal trespass or disorderly conduct when they have nowhere else to go or are experiencing a mental health crisis.
“The criminalization of homelessness will only prolong homelessness — not solve it.”
The time restriction — no “camping” between 8 a.m. and 8 p.m. — is also of particular concern to advocates and service providers, as many people more prone to victimization stay awake at night and sleep during the day. The new ordinance will outlaw that practice.
“Women who live outside, almost all of them have experienced violence,” O’Brien said. “It's certainly more obvious if those things are happening during the daytime. Women are safer during the daytime than they are by the dark of the night and so it's a more practical time for them to be on alert for self-protection. The physical and sexual assault rate is so high for … women living outside. It's just … a safer model.”
Forcing people to pack their sleeping materials each morning raises concerns for disability advocates, who say some people are simply unable to comply with that order. Additionally, people with disabilities will be required to carry their belongings from 8 a.m. to 8 p.m. should they need or want to leave the immediate area they slept in the previous night.
“It would require a certain level of physical capacity and agility and physical strength and mobility and flexibility,” Stenson said of compliance with the order. “And there are lots of people who have a variety of physical disabilities that would affect their ability to carry their belongings around. No, it's not a rule that was calculated in any way to even consider or entertain the known disabilities of people who are homeless.”
Bowman said people can "utilize complimentary day storage containers," but did not provide Street Roots a list of available day storage containers as of press time.
Bowman did not directly address criticisms saying the ordinance unfairly targets particularly vulnerable homeless Portlanders, instead saying "vulnerable populations need to be connected to services."
"Mayor Wheeler has shared on numerous occasions that his goal is to eliminate the need for unsanctioned camping in the City of Portland," Bowman said June 5. "Vulnerable populations need to be connected to services via City and County shelter sites that will ultimately guide them into permanent housing. The Mayor and his team are steadfastly focused on developing these opportunities through Temporary Alternative Shelter Sites, Safe Rest Villages, County-led programs, and supporting our community-based partners."
If the ordinance takes effect, where can people go during the day?
One answer the city offered for this question: daytime shelters.
However, leadership for at least two of the city’s largest daytime shelters say they had to proactively contact the city to get an audience from the mayor’s office.
Rose Haven’s O’Brien and Scott Kerman, Blanchet House executive director, only caught wind of Wheeler’s proposal when other service providers invited Kerman to a meeting with Brocker-Knapp a couple of weeks ago. According to O’Brien, she didn’t even get to meet with Brocker-Knapp until May 30 — the day before Wheeler officially introduced his proposal at City Council.
O’Brien and Kerman separately told Street Roots they were concerned about the lack of proactive engagement with them, particularly as their shelters are in or very near Old Town, which contains one of the largest concentrations of homeless Portlanders in the city.
“We were not brought in to discuss the policy,” Kerman said. "We've never been brought in by anyone — county, Joint Office, city."
O’Brien described the lack of communication from Wheeler’s office as it drafted the policy as “unfathomable.”
“It’s frustrating,” O’Brien said. “Being named as part of the solution about what people were going to do during the day without having had any consultation with us prior, it’s kind of unfathomable on some level.”
The city characterized its communication with Rose Haven and Blanchet House differently when asked by Street Roots.
"The City, especially the Mayor’s office, meets regularly with our stakeholders, including the community-based organizations (Street Roots mentions)," Bowman said June 5. "Our office met with the Executive Directors for both Rose Haven and Blanchet House. We’ve had numerous meetings and conversations on this issue. This input was taken into consideration as these amendments were drafted by the City Attorney’s office."
Kerman used his testimony during the May 31 City Council meeting to highlight the additional strain Wheeler’s policy will place on daytime services like Blanchet House, which does not receive government funding.
“I wanted to address that should this go forward, we have to recognize the impact this is going to have on programs like Blanchet House and Rose Haven and Portland Rescue Mission and JOIN, who provide some of the few daytime services — places during the day, not connected with housing, where people can go,” Kerman said. “I think everyone is in agreement that a natural outgrowth of this ordinance is that people are going to head for these day centers.
“And unfortunately, sometimes they're going to go, and they're going to be closed, or they're going to be at capacity and not able to let anybody else in, or they're just going to find that there aren't as many of these locations as we think there are.”
O’Brien said Rose Haven, which also is not publicly funded, is already serving more people than it ever has. Despite moving into a 10,000-square-foot space last year, it recently had a line out the door and, for the first time, was at capacity to a degree that staff had to start allowing people in one at a time as other visitors left.
“There’s very limited day resources for people,” O’Brien said. “We’re the only daytime shelter for women, children and marginalized genders in the city of Portland, and so we’re directly affected. We have 26 years of experience being in this business. It not only would have been smart because we could have strategized or talked through or gave our opinion, but it would have been courteous to (communicate about the ordinance).
“It just leaves us so little time to prepare.”
O’Brien and Kerman said Brocker-Knapp reached out after the May 31 City Council meeting to inquire about what type of funding and support the organizations would need to accommodate the likely sudden and drastic increase in people seeking daytime services.
Regardless of increased support from the city, both Kerman and O’Brien said the ordinance is not only unlikely to benefit homeless Portlanders, but it will harm their chances of getting off the streets.
Kerman said even if the city delays enforcement or is never actively enforcing the new ordinance, the added trauma and stress it will create is counterproductive.
“The specter of arrest and fining and that kind of disruption, even if they never do it, it's going be very traumatizing to people,” Kerman said.
Similarly, O’Brien said the heightened anxieties around enforcement will serve to deplete energy otherwise spent on finding longer-term solutions like housing.
“All they're going to be thinking about is, ‘Oh, gosh, where am I gonna go next?’” O’Brien said. “It's just going to be kind of re-traumatizing people day after day after that.
“I believe the ban to be counterproductive.”
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