Court upholds homeless right to sleep outside in Oregon case

A man sitting with a backpack against a wall by a men's outdoor restroom, reaching up to receive something from another man

Sept. 28, 2022 6:21 PM PT

About a decade after losing her job and becoming homeless in the small city of Grants Pass, Ore., Debra Blake joined two other homeless residents in suing the city over a set of local ordinances that, in their view, criminalized the act of sleeping outside.

Blake and her co-plaintiffs argued that there were no shelters where they could stay in the city of 38,000, that they had no place else to go, and that the city’s anti-camping and anti-sleeping ordinances represented “cruel and unusual punishment” in violation of their constitutional rights.

Among other things, the ordinances banned the use of rudimentary items such as blankets and cardboard boxes for protection against the weather.

“Over the past eight to ten years I have met dozens, if not hundreds, of homeless people in Grants Pass,” Blake wrote in a court declaration in 2019, when she was 60. “They have all had similar experiences with the Grants Pass police awaking them, moving them along, ticketing them, fining them, arresting them and/or criminally prosecuting them for living outside.”

In a decision sure to reverberate in bigger cities such as Los Angeles, a three-judge panel of the U.S. 9th Circuit Court of Appeals issued a ruling Wednesday that largely sided with Blake and her co-plaintiffs, rejecting central tenets of the Grants Pass ordinances as unconstitutional and upholding part of a lower court’s decision blocking them from being enforced.

Grants Pass City Atty. Augustus Ogu declined to immediately comment on Wednesday, saying he was still reading the decision.

The city hadn’t disputed that it did not have enough shelter beds for all of its unhoused residents.

Ed Johnson, director of litigation at the Oregon Law Center, which helped represent the plaintiffs in the case, applauded the ruling.

“Today’s decision is consistent with well-established precedent that it is unconstitutionally cruel to punish homeless people for unavoidable acts of survival,” he said. “We are pleased with the outcome, but not surprised.”

Homeless rights advocates said the ruling further affirmed — and in some ways expanded upon — protections for unhoused people forced to sleep outside across the country, including in major cities with large homeless populations such as L.A.

“Anytime the 9th Circuit passes down a ruling about what cities can and cannot do in relation to the criminalization of homelessness, it’s going to have an impact in Southern California,” said Shayla Myers, a senior attorney at the Legal Aid Foundation of Los Angeles and co-lead counsel in an ongoing lawsuit over L.A.’s practice of destroying the property
of unhoused people during cleanups and sweeps.

“What the court is doing is saying, quite simply, this is a basic constitutional principle,” Myers said. “You can’t punish people for sleeping on the sidewalk, and you can’t find loopholes to punish people.”

In its 2-1 decision, the appellate court — which covers a huge swath of the West, including California — reiterated its 2018 decision in the major homelessness case Martin vs. City of Boise. In that case, it ruled that the 8th Amendment “prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.”

But the court went a bit further this time.

“Our decision reaches beyond Martin slightly,” Judge Roslyn O. Silver of the U.S. District Court of Arizona, a visiting judge on the appellate panel, wrote for the majority.

Among other findings, the court said that the Martin decision’s protection of unhoused people’s right to sleep outdoors when they have nowhere else to go “includes sleeping with rudimentary forms of protection from the elements.”

During the litigation, the city of Grants Pass had revised its anti-camping ordinance to allow homeless people to sleep in city parks, but continued to ban them from using sleeping bags or other bedding materials. The city argued the change brought its ordinance into compliance with the Martin decision.

The court disagreed in its ruling Wednesday.

“The only plausible reading of Martin is that it applies to the act of ‘sleeping’ in public, including articles necessary to facilitate sleep,” Silver wrote.

The court also rejected the city’s claim that its ordinances did not run afoul of the Martin decision — or the Constitution’s cruel and unusual punishment clause — because they relied on civil citations for enforcement before resorting to criminal sanctions.

The ordinances subjected unhoused people to civil fines of up to several hundred dollars per violation, and people found in violation of the ordinances multiple times could be barred from all city property. Once barred, a person returning to city property was subject to criminal prosecution for trespassing.

The court ruled that it was a clear violation of the Martin ruling to subject unhoused people who have nowhere else to go to criminal trespassing charges just for being outside and trying to keep warm, whether civil citations came first or not.

“Imposing a few extra steps before criminalizing the very acts Martin explicitly says cannot be criminalized does not cure the anti-camping ordinances’ Eighth Amendment infirmity,” Silver wrote.

The appellate court’s decision upheld in part an injunction against the enforcement of the city’s anti-camping ordinances that had been issued by a lower district court.

The ruling told the lower court to “narrow” its injunction to recognize a “limited right” to protection against the elements, which it suggested did not include the use of stoves and fires or the building of structures — things the anti-camping ordinance had also barred.

Blake, the lead plaintiff, has since died. The appellate court said the lower court would have to reconsider other claims relevant to harms she had suffered, possibly by finding a substitute plaintiff who had suffered similarly.

Silver was joined in the majority opinion by 9th Circuit Court Judge Ronald M. Gould. Both were appointed by President Clinton.

In dissent, 9th Circuit Court Judge Daniel P. Collins, who was appointed by President Trump, said the majority’s decision was “egregiously wrong.”

Collins — who also called the Martin decision “deeply flawed” but acknowledged he was bound by it — wrote that the ruling Wednesday misunderstood Martin, misapplied it, and “effectively requires the City of Grants Pass to allow all but one of its public parks to be used as homeless encampments.”

It was unclear Wednesday whether the ruling would be appealed.

After the 9th Circuit’s ruling in the Martin case, city officials in California and other Western states challenged it, arguing it undercut their authority to regulate encampments on sidewalks. The U.S. Supreme Court, however, refused to take up the case.

Advocates in L.A. said they hoped Wednesday’s ruling would give local leaders pause about enforcing similar laws that displace unhoused people.

“Hopefully it sends a different message to cities and counties around how houseless people can get organized legally to fight back against the criminalization of houselessness and the removal of property,” said Pete White, founder of Los Angeles Community Action Network.

But, White said, he worries that L.A. and other cities will simply recalibrate their laws to evade the ruling, just as they have with past court decisions that landed on the side of the unhoused.

Carl Sanchez, a 64-year-old man in the L.A. area, had similar concerns.

Earlier this year, when Sanchez found out the city was going to clear an encampment where he was living in San Pedro, he put up signs on his tent that mentioned the Martin decision, which he believed should have protected him. Shelters at the time were full or felt unsafe, he said, and he had nowhere else to go.

But the signs didn’t help, he said. When he refused to leave, he was arrested and booked into jail, and when he got out, his tent, clothes and medication for high blood pressure were all gone, and he slept in the cold for three days.

He has since relocated to Riverside, he said.

“I’m staying in a secluded area surrounded by bushes and trees,” he said. “All I have to worry about is the coyotes and bobcats.”