The [il-]Legalization of Homelessness
by Rick Bowers
June 29, 2021
Let me begin by presenting my “get-out-of-jail-free” card. I am not an attorney. However, somehow I pulled off getting an “A” in my one obligatory business law class by writing common sense answers to test questions. Later in life (as a mediator in the Los Angeles and Ventura County court systems) I learned common sense doesn’t necessarily live in the same time zone as the law…. Those are my credentials. My advice? Take everything I say here with a grain of salt.
The Big Picture (a.k.a. a brief history of the “stick” approach to end homelessness)
I think my overall point in writing this section is to vividly show that local governments have tried over the years to end homelessness by creating “anti-homeless[ness]” laws. This hasn’t worked for two reasons. First, the laws/ordinances are mostly stupid and never would work anyway (unless the goal is to spend lots of money and house all the homeless in jails). And two, eventually the Courts let the local government jurisdictions know the laws are unconstitutional. Here are some examples.
Unfortunately, when our country was founded we borrowed, from across the Atlantic, the idea of punishing vagrancy. Whoops. It took a little over a couple of hundred years to decide phrases such as “no visible means of support” were a little broad.
Well, that didn’t work… let’s make hanging out illegal!
“Loitering laws, which make it an offense for an individual to be in a public place for no apparent reason, have been attacked on the grounds of both vagueness and overbreadth, and have generally been determined to be unconstitutional.” But that doesn’t keep jurisdictions from trying….
Not to worry… let’s make panhandling illegal!
“Panhandling is a form of solicitation or begging derived from the impression created by someone holding out his hand to beg or using a container to collect money.” The following is therefore clearly panhandling….
Ok, we’ll make being aggressive illegal… that will fix it! Aggressive solicitation is “a term defined broadly to include behavior like asking for a donation twice, in pairs, or after sunset – on the basis that it can make passersby feel physically threatened or vulnerable to mugging.” So no Bell Ringers after sunset….
What’s the current state of affairs? “No panhandling bans have made it to the Supreme Court. But in recent years, all lower courts’ ruling on this issue have found that laws imposing restrictions on sidewalk and roadside solicitation are unconstitutional.”7 Problematic behaviors can be directly addressed (e.g. trespassing, assault, blocking a sidewalk) but panhandling, a form of asking for a donation, is protected speech.
Ok, jurisdictions have been told they cannot prohibit having no visible means of support, cannot prohibit “hanging out,” and cannot prohibit asking for money… how can we get rid of these rascals? I know! Let’s make sure they can’t sit or lie down!
As with many homelessness related ordinances, there can be legitimacy in the intention (e.g. keeping sidewalks free from obstruction for mobility-impaired persons). As the saying goes, the devil is in the details.
Portland enacted its version in 2007. The ordinance prohibited among other things “a person from sitting or lying down on a ‘chair, stool or any other object placed upon a public sidewalk.’” I hope there was an exception for spectators at 4th of July parades…. According to the City of Portland’s Homelessness Toolkit, “In 2009 the United States District Court ruled that the City’s ‘sit-lie’ ordinance was unconstitutional.” In truth, for fear of losing the lawsuit (and a potentially large jury award), the City reached an agreement with the plaintiffs to settle the lawsuit.
How much money was spent defending an apparently unconstitutional law? At the City Council meeting ratifying the settlement agreement Moses Wrosen asked “What this is about is the city cutting a $40,000 check today to the plaintiffs who they offended. So the city has spent 40,000 more dollars on the, quote-unquote, homeless issue, and that’s not including your own legal fees. This has been a four-year battle. How much did your legal department spend losing this case? Do you have any idea?” There wasn’t a definitive answer (except for Mayor Adams responding “They [city attorneys] get paid a salary, so they’re always working.” I guess that means in government accounting it was free…?
These sit-lie ordinances are widespread.
As will be shown below, the State of Oregon’s current leadership is trying to make sure these local ordinances are “objectively reasonable.”
This approach to making cities “safe” is by keeping out the consistent trouble-makers. For example by making repeat offenders of local ordinances stay out of downtown… or parks. And again, the devil is in the details. For example, it’s common for the social service agencies to be in an exclusion zone (so an exception is made for traveling to/from a support agency). Ditto for workplaces. Ditto for shelters. Police end up spending significant time trying to determine whether an individual is excluded or legitimately in a zone.
“In September 2007, Mayor Tom Potter chose not to renew Portland’s Drug and Prostitution Exclusion Zone ordinances.
He said his decision was based on two factors: a belief that the exclusion zones were ineffective at deterring crime, and the results of a data analysis that showed police were discriminating against African Americans in terms of enforcing the exclusions.
Potter’s decision follows years of lobbying by the ACLU of Oregon against the exclusion zones, which had been in existence for 15 years.
Exclusion zones allowed law enforcement officers to bar a person, with some exceptions, from entering an exclusion zone area for 90 days. The ACLU of Oregon opposed these civil exclusion orders because they did not have sufficient due process protections before individuals are denied the right to travel and associate freely. In particular, Portland enforced exclusion orders against people who were never prosecuted or who were found not guilty of the underlying crime that was the original reason the police gave for issuing the exclusion order [emphasis added].”
So if the pesky Oregon Law Center and the American Civil Liberties Union keep representing clients and therefore keep taking away our tools (that are unconstitutional), what’s a city to do?
“YOU Are Not Wanted” Signage
These come in different forms… sometimes called hostile architecture. Creative ideas include slanted public benches, intentionally rocky open space, fencing, removing benches….
The City of Astoria removed the bench in front of the library.
The City of Astoria removed the picnic tables in Heritage Square “Concrete Park” (old Safeway). Heritage Square was given park status per city code 5.926 (which means park related codes like no-smoking apply). It’s also a hangout location for the unsheltered.
Martin v. City of Boise
This is a landmark case that finally says “An ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them [emphasis added].”
Ok… we can’t criminalize being indigent, let’s fine ‘em! That’ll fix it! Like it really makes sense to impose financial penalties to solve being indigent….
Blake v. City of Grants Pass
This is a case that, still winding its way through the courts, added “no fines” to the “cannot criminalize” Boise decision. More accurately, this judge sees “punishment” (including fines) already existing in the Boise decision. The Summary Judgment was issued July 22, 2020 by a Federal District Court and has been appealed.
The Court said “Maintaining a practice where the City allows a person to ’sleep’ on public property, but punishes him as a ‘camper’ if he so much as uses a bundled up item of clothing as a pillow, is cruel and unusual punishment. Therefore, this Court finds that it is not enough under the Eight Amendment to simply allow sleeping in public spaces; the Eight Amendment also prohibits a City from punishing homeless people for taking necessary minimal measures to keep themselves warm and dry while sleeping when there are no alternative forms of shelter available.”21
“Grants Pass argues that Plaintiffs have alternative ‘realistically available’ shelter outside the City on federal BLM land, Josephine County land, or state rest stops. This remarkable argument not only fails under Martin, but it also sheds light on the City’s attitude towards its homeless citizens. Essentially, Grants Pass argues that it should be permitted to continue to punish its homeless population because Plaintiffs have the option to just leave the City.”21
“The Eighth Amendment prohibits cruel and unusual punishment whether the punishment is designated as civil or criminal.” The Court explained “Violations of the Boise ordinances analyzed in Martin were misdemeanors, 920 F.3d at 603, so the Ninth Circuit at times used the word “criminal” in its analysis. However, a careful reading of Martin shows that this language was not a limitation on when the Eighth Amendment’s prohibition on cruel and unusual punishment applies.” 21
It’s important to remember that the Court did not say limitations on camping cannot be imposed; jurisdictions are free to make reasonable no-camping ordinances.
It’s also important to remember the potential cost to cities for this litigation. In the Grants Pass case, “Plaintiffs are awarded the amount of $300,000, for their costs and attorney fees.” This is of course in addition to the cost and attorney fees incurred in its defense.
Based on the Boise decision, Astoria went down a similar path as Grants Pass. In 2018 Astoria City officials were confronting unwanted camping in the woods east of town and recognized the existing [No] Camping ordinance did not cover that part of Astoria. Almost simultaneously, the 9th Circuit Court of Appeals ruled in the Martin v. City of Boise case. As a result, Astoria updated its Camping Ordinance, 5.900 – 5.925, to include “Violation of this ordinance is a Class B violation as defined by ORS 153.008 and 153.012.” According to ORS 153.019 the presumptive fine for a Class B violation is $265 and ORS 153.018 sets the maximum fine at $1,000.
An October 2018 Hipfish article says Mayor “Jones acknowledges the recent 9th Circuit Court ruling that arresting those sleeping outside with nowhere else to go as ‘cruel and unusual punishment’ applies to Astoria. Yet, he believes camping on city property needs to stay illegal, indicating that Astoria is compelled to support enough beds and services for people experiencing homelessness in this community.” In a follow up personal email to my request for clarification Mayor Jones said “The court did not rule that prohibiting camping on public property is cruel and unusual punishment. The court ruled that ARRESTING someone for camping illegally, IF there is no other alternative for that person to sleep, constitutes cruel and unusual punishment.”
I’m in complete agreement with Mayor Jones… as far as he goes. It is true, as Mayor Jones highlights, the Court did opine that ARRESTING individuals in the Boise case violate the constitution but the Court DID NOT authorize fines as the Mayor apparently assumes. By voting to pass the Astoria Camping Ordinance that identifies a violation as a Class B violation, Mayor Jones seems to be supportive of fines (as Councilor, he voted for the ordinance on October 15, 2018). However, United States Magistrate Judge Mark D. Clarke sees the Boise case differently than the mayor. As previously quoted, “The Eighth Amendment prohibits cruel and unusual punishment whether the punishment is designated as civil or criminal [emphasis added].” The Court explained “Violations of the Boise ordinances analyzed in Martin were misdemeanors, 920 F.3d at 603, so the Ninth Circuit at times used the word “criminal” in its analysis. However, a careful reading of Martin shows that this language was not a limitation on when the Eighth Amendment’s prohibition on cruel and unusual punishment applies [emphasis added].” 21
I do appreciate Mayor Jones statement, “Astoria is compelled to support enough beds and services for people experiencing homelessness in this community.” I’m still waiting. Countywide homeless counts during the last few years:
The Most Recent Laws Impacting Homelessness
Hopefully I’ve clearly made the point that courts are over many years one-by-one finding laws unconstitutional that in one way or another attempt to address homelessness by restricting rights. That certainly doesn’t mean local jurisdictions won’t continue enacting ordinances that in my humble opinion are unconstitutional (e.g. Astoria’s Camping 5.900 – 5.925 updated October 15, 2018). It does however mean these ordinances have the potential to be used as “clubs” against people who are homeless until courts find them unconstitutional.
The good news… some State of Oregon elected leaders are encouraging us to actually solve the problems of homelessness with what might be called a “hand up” approach instead of continuing to use fines and jails. The first two state interventions are meant to increase the housing stock (including affordable housing).
Accessory Dwelling Units
In an apparent attempt to increase housing options in Oregon, HB 2001 from the 2019 Oregon Legislative session, was signed into law and became effective on August 8, 2019. Key features of the legislation include:
- “A city with a population greater than 2,500 or a county with a population greater than 15,000 shall allow in areas within the urban growth boundary that are zoned for detached single-family dwellings the development of at least one accessory dwelling unit for each detached single-family dwelling, subject to reasonable local regulations relating to siting and design [emphasis added].”
- “’Reasonable local regulations [see above] relating to siting and design’ does not include owner-occupancy requirements of either the primary or accessory structure or requirements to construct additional off-street parking [emphasis added].”
When HB 2001 was passed I heard a city official say words to the effect of “I wish Salem would quit telling us how to run our city. We know better.”
The Astoria Planning Commission was tasked with developing proposed updates to the city’s Development Code to accommodate the requirements set forth in HB 2001. In Astoria, a resident wanting to install an ADU is caught in a “Catch-22” by the Development Code. Testimony from the December 10, 2019 meeting included [slightly edited for clarity]:
Planner Barbara Fryer: “Our code currently does not allow a manufactured home, modular home, prefabricated home that is smaller than a thousand square feet.” 
City Manager Brett Estes: “…one of the things the city council has directed the planning commission to do as a part of this amendment is to determine specifically whether or not to allow manufactured or modular homes as accessory dwelling units. They’ve asked the planning commission to have a dialogue and there are representatives in the audience tonight who are prepared to discuss this….”
Cheryl Matson: “My name is Cheryl Matson. I’m a homeowner at 5450 old highway 30. I have no neighbors. I was looking… and still looking to put an ADU on my property. I picked up a manufactured home two years ago…. I got excited when you guys passed the law that we could put on an ADU on our property so I went out and purchased a manufactured home — 450 square feet. It comes from McMinnville and they can deliver it to my property. But it comes in on wheels. Even though it will come in on wheels and they’ll place it and it’ll have a deck around it and will be wrapped and will be permanent on a platform — they then considered it [apparently the Planning Dept tried to determine whether to consider this unit as a manufactured home or as a tiny home]— if it wasn’t a manufactured home — it would be a tiny home and tiny homes couldn’t come in on wheels. So I’m kind of in that cusp of trying to get this law passed where I could have an accessory dwelling unit. Originally it was for my father-in-law and it’s now been two years and he has since passed away. But I have 13 stairs in my home and as I age up I’m hoping that this will eventually be my little mother-in-law suite….I needed to be a little bit of an income property until I get to that point. It has a little kitchenette in it. It has a bedroom on one end. It comes fully set up. I can have the same as my siding; I got bigger windows; I got upgraded it has the stud housing. I just need a seal of approval for from you guys. It is what I’m waiting for right now.”
Essentially the existing code required an “on-site, stick built” structure costing significantly more than the same dwelling built off-site. Remember rates of homelessness are strongly associated with housing prices.
Single Family Dwelling Zones
I want to make two interconnected points. First, housing prices are related to the rate of homelessness.
My second point is single-family homes, with a larger square footage and land footprint than multi-family homes, cost more.
I’m guessing rents are analogous; apartments are less expensive to rent than single-family homes. I think it’s pretty easy to argue that encouraging the development of multi-family homes will encourage the creation of affordable homes. That’s exactly the direction the State of Oregon and other jurisdictions are headed (but NOT Clatsop County cities).
According to the legislative summary of House Bill 2001 from the 2019 Oregon State Legislature’s regular session “Requires cities with population greater than 10,000… to allow duplexes in lands zoned for single-family dwellings within urban growth boundary…. Requires cities and counties to amend their comprehensive plan and land use regulations to conform with requirements or to directly apply model ordinance developed by commission…. Requires local governments to support density expectations with findings when updating regulations to accommodate housing need…. Prohibits conditioning approval of accessory dwelling unit within urban growth boundary on off-street parking availability or owner occupancy.” 
House Bill 2001 was signed into law and became effective August 8, 2019.
Oregon State Legislature — 81st Regular Session — 2021
There have been several bills related to homelessness put forth in this legislative session. Four have been enacted — signed by Governor Brown. My general takeaway — the Oregon legislature is tiring of the state being a national leader in homelessness and tiring of the general inaction in local jurisdictions. By enacting these bills the legislature is encouraging further action by cities and counties.
HB 2006 — Emergency Shelter Siting, “Camping” in Parking Lots, Grants
From the bill’s summary: “Requires local governments to allow siting of qualifying emergency shelters by qualifying entities notwithstanding land use laws and regulations. Sunsets requirement July 1, 2022.” My focus here is the shelter aspect of the bill, however, there are provisions such as “Any political subdivision may allow any public or private entity to allow overnight camping by homeless individuals living in vehicles on the property of the entity [emphasis added].” The bill was signed into law and became effect May 12, 2021.
From my perspective, this is an example of the State overriding NIMBY objections to shelters as well as encouraging local jurisdictions to update zoning laws. Clatsop County has no year-round “HUD qualifying” low-barrier shelters and we have the highest rate of homelessness in the state. At least in Astoria, siting of shelters is not considered in the Development Code and there is virtually no relevant guidance (in support of shelters) from the Comprehensive Plan.
My summary / take-away is the Oregon legislature has taken a “shot across the bow” for local jurisdictions to get in action to provide incentives and code amendments for all levels of housing, including shelters.
HB 3115 — Local Sitting, Lying, Sleeping Ordinances Must be Objectively Reasonable
While HB2006 seeks to increase the number of shelter beds, this bill seeks to avoid further punishment of those who are unable to “get a traditional roof” over their heads. For relevant background information see Sit-Lie Ordinances, Martin v. City of Boise, and Blake v. City of Grants Pass. The bill’s summary includes “Provides that local law regulating sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to public must be objectively reasonable as to time, place and manner with regards to persons experiencing homelessness.”
There are a few things that stand out in this bill. First, it has support from the League of Oregon Cities. In choosing between “carrot and stick” solutions to solving homelessness, historically cities seem to actively support “stick” approaches. However, not in this case.
And homeless advocates support the bill.
Second… the less hopeful side of me recognizes the bill requires cities to be “objectively reasonable” in local ordinances. I suspect objectively reasonable in Grants Pass is drastically different than Gresham.
Finally, I appreciate the affirmative defense aspect of the bill. According to the bill’s summary, “Creates affirmative defense to charge of violating such local law that law is not objectively reasonable. Creates cause of action for person experiencing homelessness to challenge objective reasonableness of such local law. Authorizes court to award attorney fees to prevailing plaintiff in such suit in certain circumstances.”38
The bill was signed into law on June 23, 2021.
HB 3124 — Increases Posted Notice “No Camping” Time
According to the legislative summary “Increases time that written notice must be posted before removal of homeless individuals from established camping site…. Requires written notice to state how individuals may claim personal property removed from camping site. Requires that unclaimed personal property be stored in orderly fashion…. Provides that local law that is more specific or provides greater protections to homeless individuals subject to removal from established camping site preempts contrary provisions of section….”
The bill was signed into law June 23, 2021.
HB 3026 — Waive Fee for Identification Cards for Homeless
According to the legislative summary “Directs Department of Transportation to waive fee for issuing, renewing or replacing identification card if person who is issued card is experiencing homelessness. Becomes operative January 1, 2022.” 
The bill was signed into law June 11, 2021.
The 2021 Legislative Session was scheduled from January 19th to June 27th. Two bills relating to homelessness were winding their way through the process when the session ended (so were not passed). HB 2544 – Authorizes… two-year grants to organizations that provide services to unaccompanied homeless… and HB 3004 – …additional weights [i.e. homeless students]… to distribute State School Fund moneys.
My overall “take-away” with recent State legislation is local jurisdictions would do well to aggressively and proactively address housing shortages (including shelters, transitional, and affordable) for two reasons. First, it’s the right thing to do. And second, if we do not take action now, the State will take action — in ways we may not enjoy. For example, HB 2006, signed into law during this legislative season, “trumps” local zoning for shelters. If we already had shelters in place (supported by proactive Comprehensive Plans and Development Codes) we would have adequate shelters sited where we prefer.
 See O’Brassill-Kulfan, K. (2019). Vagrants and vagabonds: Poverty and mobility in the early American republic.
 Photograph by Ben Schuman — usage rights — Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0). Downloaded from https://www.flickr.com/photos/schuminweb/10163953713.
 See Lauriello, A. D. (2016). Panhandling regulation after ‘Reed v. Town of Gilbert’. Columbia Law Review, 116(4), 1105-1142. Retrieved from https://columbialawreview.org/content/panhandling-regulation-after-reed-v-town-of-gilbert/.
 You think this is not the goal (getting the homeless out of sight)? Watch this video: https://youtu.be/nR7It7sfNDQ?t=353. “Cash” — the gentleman in the video — complies with all of the requests. I’m left with the overall sense that Cash’s behavior is not the problem (from the city’s perspective); Cash himself is the problem; he’s not one of the “normal people” referenced in the video who are allowed to use the park.
 “The claim has been investigated by Risk Management Services. The investigation indicates there is risk the City may be found liable. Therefore, in order to avoid the risk of an adverse jury award, we feel it is prudent to compromise the lawsuit at this time.”See https://efiles.portlandoregon.gov/Record/5107559/.
 The Opinion is archived at https://friendsoftheunsheltered.org/legislation/#1607388201388-53d01a1e-bc67
 See https://friendsoftheunsheltered.org/wp-content/uploads/2020-10-05-Blake-v.-City-of-Grants-Pass-Attorney-Fees.pdf. I’m assuming this award would be voided in the City prevails in its appeal.
 See https://friendsoftheunsheltered.org/2021/02/16/research-pit/ for the 2017-2019 sources of data.
 ECONorthwest (March 2019). Homelessness in Oregon: A review of trends, causes, and policy options.
 Interesting Berkely, CA is eliminating single-family zoning because of it’s “racist legacy.” See https://sf.streetsblog.org/2021/02/24/berkeleys-move-towards-eliminating-single-family-zoning/.
 See the Oregon State Legislature’s information on HB2006 at https://olis.oregonlegislature.gov/liz/2021R1/Measures/Overview/HB2006.
 See PDF page 51 in https://www.astoria.or.us/assets/dept_3/agendas/72517_APC_packet.pdf.
 The People’s Law Dictionary by Gerald and Kathleen Hill Publisher Fine Communications. See https://dictionary.law.com/Default.aspx?selected=2363.