Martin v. Boise (link to Wikipedia article) - the 2018 decision by the 9th Circuit Court of Appeals

The ruling held that cities cannot enforce anti-camping ordinances if they do not have enough homeless shelter beds available for their homeless population. The decision was based on the Eighth Amendment to the U.S. Constitution's prohibition on cruel and unusual punishment.

Spokane Municipal Code

Chapter 18.05 Protections for Homeless People

Section 18.05.010 Legislative Findings and Purposes

Section 18.05.020 Activation Criteria

Section 18.05.030 Homelessness Response Policy

Blake v. City of Grants Pass

From StreetRoots.org -

A judge struck down Grants Pass’ anti-camping policy, but campers are still told to ‘move along’

Hanna Merzbach

This story is part of a series examining housing and homelessness issues in Southern Oregon’s Josephine County.

Gloria “Sue” Johnson, 70, has lived in the Southern Oregon town of Grants Pass since 2007. When she was unable to find affordable housing five years ago, Johnson, a retired nurse living on Social Security, became homeless and took to living in her 2002 Dodge Grand Caravan.

City ordinances barred her from legally parking anywhere in town to sleep, and Grants Pass police repeatedly told her to “move along.” At any time, she was at risk of being ticketed, fined or criminally prosecuted. So, she began parking on U.S. Bureau of Land Management land outside city limits.

“That’s a little way out of town, and you have to come back and forth to go to a store, and it’s really a lot of gas and wear and tear on your vehicle,” Johnson said.

But that all changed in July, when Johnson, Debra Blake, John Logan and other homeless residents of Grants Pass won a class-action lawsuit against the city. A federal judge ruled that the city’s use of violations and fines to punish people for sleeping outside when there was nowhere else to rest was a violation of Eighth Amendment protections against excessive fines and cruel and unusual punishment.

“It is good to know that somebody is on your side even if you are homeless,” Johnson said in reference to the lawsuit, Blake v. Grants Pass. “You don’t see that often.”

The lawsuit, brought by Oregon Law Center on behalf of the plaintiffs, built on the landmark 2018 decision by the Ninth U.S. Circuit Court of Appeals in Martin v. Boise, which declared it unconstitutional to punish people for sleeping outdoors in public spaces when there aren’t adequate and accessible shelter beds.

Since last summer’s ruling in Blake v. Grants Pass, Johnson has been able to save valuable gas money by parking her van in a city park, where she previously could have been kicked out or fined, and the city has taken concrete steps to expand services for people who are experiencing homelessness. In January, the City Council approved its first low-barrier shelter, which would have opened as early as March, but the owners of the property where the shelter would have been located decided not to sell after an effort to repeal that decision was launched by community members. The shelter, as Street Roots previously reported, would have been temporary, open for 90 days.

Meanwhile, the city of Grants Pass is appealing Blake v. Grants Pass, and a final court decision isn’t expected until 2022. Until then, the city is abiding by rules in an injunction and allowing campers to have tents up in most parks from 5 p.m. to 7:30 a.m. While the Blake and Martin cases prevent cities from banning sleeping outside broadly, cities may still prohibit camping during certain times of the day and in specific locations.

Ed Johnson, director of litigation at the Oregon Law Center, said, “The good thing about the time restriction is that it’s better than what came before it, when it was illegal to camp at any time.

“The bad thing about it is if you’re living outside, you have to break down camp and pack up your belongings and be on the move all day,” he said. “It’s a pretty disruptive way to try to exist.”

With a population of about 38,000, Grants Pass is the largest city in Josephine County, which is notorious for its lack of affordable housing and social services. According to last year’s Point in Time Count, the county has a homeless population of 1,422.

Among this population is Dolores Nevin, who was living in an encampment that sprung up in the city’s Riverside Park after the ruling. She said the lawsuit gave her a place to sleep but created other challenges involving the police. At least two officers visit the park most mornings to ensure campers pack up their tents, and like many others, Nevin has nowhere else to go during the day.

The Riverside Park camp had more than 20 tents in mid-November, according to reports in the Grants Pass Daily Courier, but many people have since dispersed throughout town to avoid the police. Nevin, 63, is now living in an alleyway in town, according to other campers.

Warren Hensman, the public safety chief, said the city is following the agreed-upon injunction “down to the letter.”

“We give people opportunities to move along,” Hensman said. “We give people opportunities to be as successful as they may be in that moment, because we know that this is an incredibly vulnerable population.”

•••

While Grants Pass is following the Blake v. Grants Pass injunction, the city’s continued enforcement of anti-camping ordinances during the day is not in line with Centers for Disease Control and Prevention recommendations. In order to limit the spread of the virus, the CDC suggests allowing people who are unsheltered to remain where they are if individual housing is not available.

“It is not in the health and wellness of the community to have people be mobile and be dismissed from the encampment,” said Kelly Wessels, chief operating officer at the United Community Action Network, or UCAN, which provides resources for those living in poverty in Josephine and Douglas counties.

While law enforcement is no longer allowed to fine people for camping violations, officers now frequently give notices to people who still have tents up during restricted times. In accordance with a state law, ORS 203.079, if those people are still camping in public places 24 hours later, the officers will take their property, including tents and blankets, which happened on at least one occasion in February.

Grants Pass Police Officer Tim Artoff, who is part of the community resource team that visits the park, said at a Feb. 17 City Council meeting that taking tents is his “last resort.” He then added, “I don’t believe that because you’re unhoused you shouldn’t have to abide by any rules.”

Campers can make an appointment to pick up their belongings from the department within 30 days, though many of them don’t because they don’t want more interaction with the police, Wessels said.

Local resident Eva “Rose” Steinbach, who has the option to stay with family, said she has chosen to camp out at the park for the past few weeks to see the situation.

“I’m only down here because I want to be (the homeless people’s) voice,” Steinbach said.

She has since had belongings confiscated, and she said many people aren’t picking up their belongings because they worry they will be contaminated with the coronavirus.

The Josephine County Jail had 30 positive cases of COVID-19 earlier this month, and even though private property is stored at a different location, many people would rather get another tent or squeeze into a tent with others than risk contamination from the police department.

Steinbach also said officers shake or kick their tents in the morning. At a Feb. 3 Grants Pass City Council meeting, she said, “They’re being bullies toward the homeless.”

Paulette Shephard, a retired psychiatric nurse who provides resources for people experiencing homelessness, testified at the meeting, saying, “When you go and shake the poles first thing in the morning at 7 o’clock, well, it sets off PTSD.”

Hensman responded that the department looks at each complaint against officers. He said he believes in building trust and nurturing legitimacy, though he recognizes that can be difficult with the stigmas that come with wearing a police uniform.

Wessels, with UCAN, wonders why the city needs to send multiple officers to encampments most mornings in the first place.

“That’s a lot of effort,” she said. “And it’s all because people are concerned with how it looks, the appearance of everything, the appearance of those people.”

In years past, Grants Pass, like many other Oregon communities, has taken “more of a criminalization approach and less of a services-oriented approach,” said Johnson, from Oregon Law Center. Residents were repeatedly awakened, moved along, cited, fined and prosecuted for criminal trespass for lying down or sleeping outside in the city.

This was in line with the city’s general approach to addressing homelessness, which involved pushing people out of town in order to promote tourism, rather than providing services, shelters and affordable housing.

But Grants Pass is starting to shift its approach to homelessness, said Doug Walker, a member of the city’s Housing Advisory Committee.

“I think the difference now is institutionally we realized we have to find the solution, and we’re going to have to actually look at this and put some resources towards it,” Walker said.

•••

Grants Pass saw its first warming shelter last winter, while plans for the temporary non-congregate shelter, run by Medford-based Rogue Retreat, have fallen through, the nonprofit still plans to run a transitional tiny-home village in Grants Pass, which will open as early as the summer and offer 17 units.

In the interim, the city has yet to find solutions for showers and restrooms for people who are homeless. The only public showers, maintained by the Christian Service Network, broke down last spring. People who are unsheltered also have limited access to restrooms, as the public options in the parks close for the evenings.

Grants Pass doesn’t meet CDC recommendations on encampments, which say restrooms should remain open 24 hours a day to people experiencing homelessness. If restrooms are not available, the CDC suggests providing portable toilets with handwashing facilities for encampments of more than 10 people.

There are typically at least 15 people living in Riverside Park.

In November, the City Council expressed interest in putting a portable toilet in Riverside Park. Without getting official permission, private citizens then rented a portable toilet themselves to meet needs in the park. Within a couple hours, the city manager had the toilet removed.

Sarah Bristol, the newly elected mayor who had not yet taken office, referred to the city leadership as “Grinches.”

But City Councilor DJ Faszer, who is now council president, said putting additional restrooms in the camps is a “slippery slope.”

“Once you provide it there, you need to provide it in all your parks, and then as soon as you take it away, that could be seen as removing services that were implemented for the homeless population,” Faszer said.

In early January, the City Council voted to change the time in which people can set up tents in the parks — from 7 p.m. to 5 p.m. — until April 1 so campers aren’t setting up tents in the cold and dark. On Feb. 17, the council discussed extending the morning hours further so people can camp until 9 a.m. rather than 7:30 a.m., but the motion failed 4-3.

The councilors who objected to extending the morning deadline by 90 minutes cited concerns about attracting more homeless people to the city and destroying the park. One councilor, Joel King, said he would rather stick to the injunction and “continue to promote and support police as being part of this solution.”

Another councilor, Brian DeLaGrange, was disappointed the council could not make what he saw as a small step.

“I’m trying to be empathetic to real people in our town who are in real bad shape,” DeLaGrange said. “Asking for them to have a couple more hours in the morning so it’s not quite so cold or maybe not quite so wet before they have to pack up feels like a very small ask.”

Sam Walker rests by the Rogue River after taking down his tent the morning of Jan. 18 at Riverside Park in Grants Pass. Wrapped in a blanket used to pad furniture in moving vans, Walker has been camping in the park since he arrived from Colorado in June.

Photo by Elayna Yussen

Mayor Bristol said the current councilors, many of whom ran on housing platforms, are not involved with the Blake v. Grants Pass appeal process. But they have also not publicly discussed stopping the appeal of the decision that expanded the rights of homeless people throughout the West Coast. Councilors and community members have said they have little understanding of why the city is appealing. City Council rarely discusses the lawsuit publicly, leaving most conversations to be had in executive sessions behind closed doors.

In its argument in the lawsuit last year, the city took issue with the court’s certification of the lawsuit as class action and argued that the anti-camping ordinances were not in violation of the Eighth Amendment. It also argued Grants Pass doesn’t need to provide camping options within the city because people who are homeless can camp outside city limits on federal or county land. But there are also restrictions on how long someone can camp in these areas.

The city manager and attorney did not respond to requests for comment on the appeal.

“I think that there is compassion and people want to do something to help, but they don’t necessarily want people camping in our public parks,” Bristol said.

Bristol is optimistic about providing residents alternative options such as a designated campground, though the city has yet to find any properties or see any proposals for a more permanent camp.

Councilors have expressed interest in following Rogue Retreat’s urban campground model in Medford. Nearby, Ashland is also seeking funding to replicate this campground model.

•••

The primary intention of these lawsuits is to encourage communities to come up with solutions and protect people’s rights on the streets as they build the capacity to get everybody into housing, said Eric Tars, legal director at the National Homelessness Law Center.

“We’re trying to get people into housing so that they don’t have to be on the streets in the first place,” said Tars, who worked on the Martin v. Boise case.

On Feb. 8, the city of Boise and lawyers representing homeless plaintiffs announced they had reached a settlement in Martin v. Boise, concluding more than 12 years of litigation. Boise ultimately agreed to dedicate $1.3 million to addressing homelessness and amend two ordinances so tickets are not issued when shelters are full or if people are unable to access shelter based on “disability, sexual orientation or religious practices.”

In Oregon, legislators may pass a bill this session that would further enshrine the principles of the Boise and Grants Pass rulings into state law. Introduced by House Speaker Tina Kotek, with the help of Oregon Law Center, League of Oregon Cities and other stakeholders, House Bill 3115 would require local governments to adopt policies that are “objectively reasonable” in regulating when, where and how people can live outside.

Becky Straus, an Oregon Law Center staff attorney, said the bill could encourage “local jurisdictions to revisit their policies on survival activities — sleeping, camping, sitting, lying down — or just generally public space management and have those policies reflect the case law and reflect the principles in the case.”

Many cities in Oregon — Grants Pass included — have ordinances on the books that violate case law, even though they may be technically complying with the ruling, Straus said. Brookings, on the Southern Oregon Coast, for example, just passed ordinances prohibiting residents from seeking shelter in a vehicle, even though the city doesn’t have adequate shelter space.

If passed, House Bill 3115 would require local governments to amend ordinances to align with the guiding principles of Martin v. Boise and Blake v. Grants Pass. They would have until July 2023 to modify anti-camping policies through a robust public process.

Ariel Nelson, who negotiated the bill for League of Oregon Cities, said it’s only a first step.

“The bill doesn’t get anyone else off the street, it doesn’t provide any extra shelter, and it’s not going to move the needle,” she said. But, she added, “it is an important step to take in order to have a much larger conversation about solving our housing and homeless crisis.”

Street Roots is an award-winning weekly publication focusing on economic, environmental and social justice issues. The newspaper is sold in Portland, Oregon, by people experiencing homelessness and/or extreme poverty as means of earning an income with dignity. Street Roots newspaper operates independently of Street Roots advocacy and is a part of the Street Roots organization. Learn more about Street Roots. Support your community newspaper by making a one-time or recurring gift today.

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