HomeMy WebLinkAboutItem 01 Camping Ordinance UpdateAGENDA ITEM SUMMARY
Meeting Date:
Meeting Type:
Staff Contact/Dept.:
Staff Phone No:
Estimated Time:
11/28/2022
Work Session
Mary Bridget Smith/CAO
541-744-4061
20 Minutes
SPRINGFIELD Council Goals: Foster an Environment
CITY COUNCIL that Values Diversity and
Inclusion
ITEM TITLE: CAMPING ORDINANCE UPDATE
ACTION Review new legal issues related to City's camping ordinance and provide direction
REQUESTED: for next steps.
ISSUE The City's camping ordinance is out of compliance with HB 3115 and must either
STATEMENT: be revised or repealed by July 1, 2023.
ATTACHMENTS: Attachment 1: League of Oregon Cities' Guide to Persons Experiencing
Homelessness in Public Spaces
Attachment 2: PowerPoint Presentation
Attachment 3: HB 3115
DISCUSSION/ The current municipal code section prohibiting camping on public property
FINANCIAL conflicts with recently passed HB 3115. That bill requires that local laws
IMPACT: regulating camping must be objectively reasonable as to time, place and manner
restrictions from the perspective of persons experiencing homelessness.
Springfield, like many cities, regulates camping by prohibiting persons from
sleeping or camping on public property. Currently, prohibited camping is a
violation punishable by a fine of up to $720 (SMC Section 5.130). As the number
of persons experiencing homelessness has increased, Courts have begun to issue
decisions restricting a local government's ability to regulate or prohibit sleeping on
public property.
In 2019, the 9` Circuit issued their opinion in Martin v. City of Boise (920 F. 3d
584) which limited the City's ability to regulate camping on public property.
Martin was rooted in the 8' Amendment about cruel and unusual punishment. That
case was followed by Blake (Johnson) v. Grants Pass (50 F. 4th 787) which
expanded on Boise by introducing the concept of entitling people to keep
themselves warm and dry and discussed what meaningful access to a shelter truly
means. Those cases were then restated and codified into law by HB 3115. As a
result, the City must reconsider its camping ordinance (SMC Section 5.130) which
currently prohibits all camping on public property.
The purpose of this work session is to relay information about legal issues related to
implementing HB 3115 and a list of issues and questions for the Council to
consider as it works through this issue.
1
J
Guide to Persons
Experiencing
Homelessness in
Public Spaces
JUNE 2022
Attachment 1, Page 1 of 12
Guide to Persons Experiencing Homelessness in Public Spaces
Cities possess a significant amount of property — from parks, greenways, sidewalks, and public
buildings to both the developed and undeveloped rights of way — sizable portions of a city belong
to the city itself, and are held in trust for particular public purposes or use by residents.
Historically cities have regulated their various property holdings in a way that prohibits persons
from camping, sleeping, sitting or lying on the property. The historic regulation and
management of a city's public spaces must be reimagined in light of recent federal court
decisions and the Oregon Legislature's enactment of HB 3115, both of which direct cities to
consider their local regulations within the context of available local shelter services for those
persons experiencing homelessness.
As the homelessness crisis intensifies, and the legal parameters around how a city manages its
public property contract, cities need guidance on how they can regulate their property in a way
that respects each of its community members, complies with all legal principles, and protects its
public investments. A collective of municipal attorneys from across the state of Oregon
convened a work group to create this guide, which is intended to do two things: (1) explain the
legal principles involved in regulating public property in light of recent court decisions and
statutory enactments; and (2) provide a checklist of issues/questions cities should review before
enacting or amending any ordinances that may impact how their public property is managed.
Legal Principles Involved in Regulating Public Property
Two key federal court opinions, Martin v. Boise and Blake v. Grants Pass, have significantly
impacted the traditional manner in which cities regulate their public property. In addition to
these two pivotal cases, the Oregon Legislature enacted HB 3115 during the 2021 legislative
session as an attempt to clarify, expand, and codify some of the key holdings within the court
decisions. An additional piece of legislation, HB 3124, also impacts the manner in which cities
regulate public property in relation to its use by persons experiencing homelessness. And, as the
homelessness crisis intensifies, more legal decisions that directly impact how a city regulates its
public property when it is being used by persons experiencing homelessness are expected. Some
of these pending cases will seek to expand, limit, or clarify the decisions reached in Martin and
Blake; other pending cases seek to explain how the well-established legal principle known as
State Created Danger applies to actions taken, or not taken, by cities as they relate to persons
experiencing homelessness.
A. The Eighth Amendment to the U.S. Constitution
The Eighth Amendment to the U.S. Constitution states that excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishment inflicted. In 1962, the U.S.
Supreme Court, in Robinson v. California, established the principle that "the Eighth Amendment
prohibits the state from punishing an involuntary act or condition if it is the unavoidable
consequence of one's status or being." 370 U.S. 660 (1962).
Guide to Persons Experiencing Homelessness in Public Spaces
Attachment 1, Page 2 of 12
2
B. Martin v. Boise
In 2018, the U.S. 0 Circuit Court of Appeals, in Martin v. Boise, interpreted the Supreme
Court's decision in Robinson to mean that the Eighth Amendment to the U.S. Constitution
"prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public
property for homeless individuals who cannot obtain shelter ... because sitting, lying, and
sleeping are ... universal and unavoidable consequences of being human." The court declared
that a governmental entity cannot "criminalize conduct that is an unavoidable consequence of
being homeless — namely sitting, lying, or sleeping." 902 F3d 1031, 1048 (2018).
The 9t' Circuit clearly stated in its Martin opinion that its decision was intentionally narrow, and
that some restrictions on sitting, lying, or sleeping outside at particular times or in particular
locations, or prohibitions on obstructing the rights of way or erecting certain structures, might be
permissible. But despite the narrowness of the decision, the opinion only truly answered some of
the many questions cities are rightly asking. After Martin, municipal attorneys could advise their
clients in limited ways: some things were clear, and others were pretty murky.
One of the most commonly misunderstood aspects of the Martin decision is the belief that a city
can never prohibit a person experiencing homelessness from sitting, sleeping or lying in public
places. The Martin decision, as noted, was deliberately limited. Cities are allowed to impose
city-wide prohibitions against persons sitting, sleeping, or lying in public, provided the city has a
shelter that is accessible to the person experiencing homelessness against whom the prohibition
is being enforced. Even if a city lacks enough shelter space to accommodate the specific person
experiencing homelessness against whom the prohibition is being enforced, it is still allowed to
limit sitting, sleeping, and lying in public places through reasonable restrictions on the time,
place and manner of these acts ("where, when, and how") — although what constitutes a
reasonable time, place and manner restriction is often difficult to define.
A key to understanding Martin is recognizing that an analysis of how a city's ordinance, and its
enforcement of that ordinance, can be individualized. Pretend a city has an ordinance which
prohibits persons from sleeping in city parks if a person has nowhere else to sleep. A person
who violates that ordinance can be cited and arrested. A law enforcement officer finds 11
persons sleeping in the park, and is able to locate and confirm that 10 of said persons have access
to a shelter bed or a different location in which they can sleep. If any of those 10 persons refuses
to avail themselves of the available shelter beds, the law enforcement officer is within their
rights, under Martin, to cite and arrest the persons who refuse to leave the park. The practicality
of such an individualized assessment is not to be ignored, and cities are encouraged to consider
the ability to make such an assessment as they review their ordinances, polices, and procedures.
What is clear from the Martin decision is the following:
1. Cities cannot punish a person who is experiencing homelessness for sitting, sleeping, or
lying on public property when that person has no place else to go;
2. Cities are not required to build or provide shelters for persons experiencing
homelessness;
Guide to Persons Experiencing Homelessness in Public Spaces
Attachment 1, Page 3 of 12
3
3. Cities can continue to impose the traditional sit, sleep, and lie prohibitions and
regulations on persons who do have access to shelter; and
4. Cities are allowed to build or provide shelters for persons experiencing homelessness.
After Martin, what remains murky, and unknown is the following:
What other involuntary acts or human conditions, aside from sleeping, lying and sitting,
are considered to be an unavoidable consequence of one's status or being?
2. Which specific time, place and manner restrictions can cities impose to regulate when,
where, and how a person can sleep, lie or sit on a public property?
3. What specific prohibitions can cities impose that will bar a person who is experiencing
homelessness from obstructing the right of way?
4. What specific prohibitions can cities impose that will prevent a person who is
experiencing homelessness from erecting a structure, be it temporary or permanent, on
public property?
The city of Boise asked the United States Supreme Court to review the 91h Circuit's decision in
Martin. The Supreme Court declined to review the case, which means the opinion remains the
law in the 91h Circuit. However, as other federal circuit courts begin considering a city's ability
to enforce sitting, sleeping and camping ordinances against persons experiencing homelessness,
there is a chance that the Supreme Court may review a separate but related opinion to clarify the
Martin decision and provide clarity to the outstanding issues raised in this guide.
C. Blake v. Grants Pass
Before many of the unanswered questions in Martin could be clarified by the 9th Circuit or the
U.S. Supreme Court, an Oregon federal district court issued an opinion, Blake v. Grants Pass,
which provided some clarity, but also provided an additional layer of murkiness.
From the Blake case we also know the following:
Whether a city's prohibition is a civil or criminal violation is irrelevant. If the prohibition
punishes an unavoidable consequence of one's status as a person experiencing
homelessness, then the prohibition, regardless of its form, is unconstitutional.
2. Persons experiencing homelessness who must sleep outside are entitled to take necessary
minimal measures to keep themselves warm and dry while they are sleeping.
3. A person does not have access to shelter if:
Guide to Persons Experiencing Homelessness in Public Spaces
Attachment 1, Page 4 of 12
2
• They cannot access the shelter because of their gender, age, disability or familial
status;
• Accessing the shelter requires a person to submit themselves to religious teaching
or doctrine for which they themselves do not believe;
• They cannot access the shelter because the shelter has a durational limitation that
has been met or exceeded; or
• Accessing the shelter is prohibited because the person seeking access is under the
influence of some substance (for example alcohol or drugs) or because of their
past or criminal behavior.
But much like Martin, the Blake decision left some unanswered questions. The key unknown
after Blake, is: What constitutes a minimal measure for a person to keep themselves warm and
dry — is it access to a blanket, a tent, a fire, etc.?
And while defining the aforementioned unknown question after Blake is most certainly difficult
for cities, what cities must also keep ever present in their mind is the fact that the 91h Circuit
Court of Appeals is presently reviewing the Blake decision. When the 9th Circuit finishes its
review and issues an opinion, cities should reasonably expect the rules and parameters
established by the Oregon district court in Blake to change. What types of changes should be
expected, the severity of the changes, and when those changes will occur are questions municipal
attorneys cannot answer at this time for their clients. Given the very real fluidity surrounding the
legal issues discussed in this guide, before adopting any new policy, or revising an existing
policy, that touches on the subject matter described herein, cities are strongly encouraged to
speak with their legal advisor to ensure the policy is constitutional.
D. House Bill 3115
HB 3115 was enacted by the Oregon Legislature during its 2021 session. It is the product of a
workgroup involving the LOC and the Oregon Law Center as well as individual cities and
counties.
The bill requires that any city or county law regulating the acts of sitting, lying, sleeping or
keeping warm and dry outside on public property must be "objectively reasonable" based on the
totality of the circumstances as applied to all stakeholders, including persons experiencing
homelessness. What is objectively reasonable may look different in different communities.
The bill retains cities' ability to enact reasonable time, place and manner regulations, aiming to
preserve the ability of cities to manage public spaces effectively for the benefit of an entire
community.
HB 3115 includes a delayed implementation date of July 1, 2023, to allow local governments
time to review and update ordinances and support intentional community conversations.
Guide to Persons Experiencing Homelessness in Public Spaces 5
Attachment 1, Page 5 of 12
From a strictly legal perspective, HB 3115 did nothing more than restate the judicial decisions
found in Martin and Blake, albeit a hard deadline to comply with those judicial decisions was
imposed. The bill provided no further clarity to the judicial decisions, but it also imposed no
new requirements or restrictions.
E. House Bill 3124
Also enacted during the 2021 legislative session, HB 3124 does two things. First, it changes and
adds to existing guidance and rules for how a city is to provide notice to homeless persons that
an established campsite on public property is being closed, previously codified at ORS 203.077
et seq., now found at ORS 195.500, et seq. Second, it gives instructions on how a city is to
oversee and manage property it removes from an established campsite located on public
property. It is important to remember that HB 3124 applies to public property; it is not
applicable to private property. This means that the rules and restrictions imposed by HB 3124
are not applicable city-wide, rather they are only applicable to property classified as public.
HB 3124 does not specify, with any true certainty, what constitutes public property. There has
been significant discussion within the municipal legal field as to whether rights of way constitute
public property for the purpose of interpreting and implementing HB 3124. The general
consensus of the attorneys involved in producing this guide is that rights of way should be
considered public property for purposes of HB 3124. If an established homeless camp is located
on rights of way, it should generally be treated in the same manner as an established camp
located in a city park. However, as discussed below, depending on the dangers involved with a
specific location, exceptions to this general rule exist.
When a city seeks to remove an established camp site located on public property, it must do so
within certain parameters. Specifically, a city is required to provide 72 -hour notice of its intent
to remove the established camp site. Notices of the intention to remove the established camp site
must be posted at each entrance to the site. In the event of an exceptional emergency, or the
presence of illegal activity other than camping at the established campsite, a city may act to
remove an established camp site from public property with less than 72 -hour notice. Examples
of an exceptional emergency include: possible site contamination by hazardous materials, a
public health emergency, or immediate danger to human life or safety.
While HB 3124 specifies that the requirements contained therein apply to established camp
sites, it fails to define what constitutes an established camping site. With no clear definition of
what the word established means, guidance on when the 72 -hour notice provisions of HB 3124
apply is difficult to provide. The working group which developed this guide believes a cautious
approach to defining the word established at the local level is prudent. To that end, the LOC
recommends that if, for example, a city were to enact an ordinance which permits a person to
pitch a tent between the hours of 7 p.m. and 7 a.m., that the city also then consistently and
equitably enforce the removal of that tent by 7 a.m. each day, or as close as possible to 7 a.m.
Failing to require the tent's removal during restricted camping hours each day, may, given that
the word established is undefined, provide an argument that the tent is now an established camp
site that triggers the requirement of HB 3124.
Guide to Persons Experiencing Homelessness in Public Spaces
Attachment 1, Page 6 of 12
0
In the process of removing an established camp site, oftentimes city officials will also remove
property owned by persons who are experiencing homelessness. When removing items from
established camp sites, city officials should be aware of the following statutory requirements:
• Items with no apparent value or utility may be discarded immediately;
• Items in an unsanitary condition may be discarded immediately;
• Law enforcement officials may retain weapons, drugs, and stolen property;
• Items reasonably identified as belonging to an individual and that have apparent value or
utility must be preserved for at least 30 days so that the owner can reclaim them; and
• Items removed from established camping sites in counties other than Multnomah County
must be stored in a facility located in the same community as the camping site from
which it was removed. Items removed from established camping sites located in
Multnomah County must be stored in a facility located within six blocks of a public
transit station.
Cities are encouraged to discuss with legal counsel the extent to which these or similar
requirements may apply to any camp site, "established" or not, because of due process
protections.
F. Motor Vehicles and Recreational Vehicles
Cities need to be both thoughtful and intentional in how they define and regulate sitting,
sleeping, lying, and camping on public property. Is sleeping in a motor vehicle or a recreational
vehicle (RV) that is located on public property considered sitting, lying, sleeping, or camping on
public property under the city's ordinances and policies? This guide will not delve into the
manner in which cities can or should regulate what is commonly referred to as car or RV
camping; however, cities do need to be aware that they should consider how their ordinances and
policies relate to car and RV camping, and any legal consequences that might arise if such
regulations are combined with ordinances regulating sitting, lying, sleeping, or camping on
public property. Motor and recreational vehicles, their location on public property, their
maintenance on public property, and how they are used on or removed from public property are
heavily regulated by various state and local laws, and how those laws interact with a city's
ordinance regulating sitting, lying, sleeping, or camping on public property is an important
consideration of this process.
G. State Created Danger
In 1989, the U.S. Supreme Court, in DeShaney v. Winnebago Cnty. Dep't of Soc. Servs.,
interpreted the Fourteenth Amendment to the U.S. Constitution to impose a duty upon the
government to act when the government itself has created dangerous conditions — this
interpretation created the legal principle known as State Created Danger. 489 U.S. 189 (1989).
The 9ffi Circuit has interpreted the State Created Danger doctrine to mean that a governmental
Guide to Persons Experiencing Homelessness in Public Spaces 7
Attachment 1, Page 7 of 12
entity has a duty to act when the government actor "affirmatively places the plaintiff in danger
by acting with `deliberate indifference' to a `known or obvious danger."' LA Alliance for
Human Rights v. City of Los Angeles, 2021 WL 1546235.
The State Created Danger principle has three elements. First, the government's own actions must
have created or exposed a person to an actual, particularized danger that the person would not
have otherwise faced. Second, the danger must have been one that is known or obvious. Third,
the government must act with deliberate indifference to the danger. Id. Deliberate indifference
requires proof of three elements:
"(1) there was an objectively substantial risk of harm; (2)
the [state] was subjectively aware of facts from which an
inference could be drawn that a substantial risk of serious
harm existed; and (3) the [state] either actually drew that
inference or a reasonable official would have been
compelled to draw that inference." Id.
Municipal attorneys are closely reviewing the State Created Danger principle as it relates to the
use of public spaces by persons experiencing homelessness for three reasons. First, many cities
are choosing to respond to the homeless crisis, the legal decisions of Martin and Blake, and HB
3115, by creating managed homeless camps where unhoused persons can find shelter and
services that may open the door to many State Created Danger based claims of wrongdoing (e.g.
failure to protect from violence, overdoses, etc. within the government sanctioned camp).
Second, in California, at least one federal district court has recently ruled that cities have a duty
to act to protect homeless persons from the dangers they face by living on the streets, with the
court's opinion resting squarely on the State Created Danger principle. Third, when imposing
reasonable time, place, and manner restrictions to regulate the sitting, sleeping or lying of
persons on public rights of way, cities should consider whether their restrictions, and the
enforcement of those restrictions, trigger issues under the State Created Danger principle.
Fourth, when removing persons and their belongings from public rights of way, cities should be
mindful of whether the removal will implicate the State Created Danger principle.
In creating managed camps for persons experiencing homelessness, cities should strive to create
camps that would not reasonably expose a person living in the camp to a known or obvious
danger they would not have otherwise faced. And if there is a danger to living in the camp, a
city should not act with deliberate indifference to any known danger in allowing persons to live
in the camp.
And while the California opinion referenced above has subsequently been overturned by the 91h
Circuit Court of Appeals, at least one federal district court in California has held that a city
"acted with deliberate indifference to individuals experiencing homelessness" when the city
allowed homeless persons to "reside near overpasses, underpasses, and ramps despite the
inherent dangers — such as pollutants and contaminant." LA Alliance for Human Rights v. City of
Los Angeles, 2022 WL 2615741. The court essentially found a State Create Danger situation
when a city allowed persons experiencing homelessness to live near interstates — a living
situation it "knew" to be dangerous.
Guide to Persons Experiencing Homelessness in Public Spaces 8
Attachment 1, Page 8 of 12
Before a city official enforces a reasonable time, place, and manner restriction which regulates
the sitting, sleeping and lying of persons on public property, the official should review the
enforcement action they are about to take in in light of the State Created Danger principle. For
example, if a city has a restriction that allows persons to pitch a tent on public property between
the hours of 7 p.m. and 7 a.m., a city official requiring the person who pitched the tent to remove
it at 7:01 a.m. should be mindful of all environmental conditions present at the time their
enforcement order is made. The same thoughtful analysis should be undertaken when a city
removes a person and their belongings from the public rights of way.
How Cities Proceed
The law surrounding the use of public spaces by persons experiencing homelessness is newly
emerging, complex, and ripe for additional change. In an effort to simplify, as much as possible,
the complexity of this legal conundrum, below is an explanation of what municipal attorneys
know cities must do, must not do, and may potentially do.
A. What Cities Must Do
In light of the court decisions discussed herein, and the recent House bills enacted by the Oregon
Legislature, cities must do the following:
1. Review all ordinances and policies with your legal advisor to determine which ordinances
and policies, if any, are impacted by the court decisions or recently enacted statutes.
2. Review your city's response to the homelessness crisis with your legal advisor to ensure
the chosen response is consistent with all court decisions and statutory enactments.
If your city chooses to exclude persons experiencing homelessness from certain areas of
the city for violating a local or state law, the person must be provided the right to appeal
that expulsion order, and the order must be stayed while the appeal is pending.
3. If your city choses to remove a homeless person's established camp site, the city must
provide at least 72 -hour notice of its intent to remove the site, with notices being posted
at entry point into the camp site.
4. If a city obtains possession of items reasonably identified as belonging to an individual
and that item has apparent value or utility, the city must preserve that item for at least 30
days so that the owner can reclaim the property, and store that property in a location that
complies with state law.
B. What Cities Must Not Do
When the decisions rendered by the federal district court of Oregon and the 91h Circuit Court of
Appeals are read together, particularly in conjunction with Oregon statutes, cities must not do the
following:
Guide to Persons Experiencing Homelessness in Public Spaces
Attachment 1, Page 9 of 12
�i
1. Cities cannot punish a person who is experiencing homelessness for sitting, sleeping, or
lying on public property when that person has no place else to go.
2. Cities cannot prohibit persons experiencing homelessness from taking necessary minimal
measures to keep themselves warm and dry when they must sleep outside.
3. Cities cannot presume that a person experiencing homelessness has access to shelter if
the available shelter options are:
• Not accessible because of their gender, age, or familial status;
• Ones which requires a person to submit themselves to religious teaching or
doctrine for which they themselves do not believe;
• Not accessible because the shelter has a durational limitation that has been met or
exceeded;or
• Ones which prohibit the person from entering the shelter because the person is
under the influence of some substance (for example alcohol or drugs) or because
of their past or criminal behavior.
C. What Cities May Potentially Do
As previously noted, the recent court decisions, and those which are presently pending before the
various federal district courts and in the 91h Circuit Court of Appeals, lack clarity in many key
respects. This lack of clarity, while frustrating, also provides cities some leeway to address the
homelessness crisis, specifically with how the crisis impacts the management of public property.
1. Cities may impose reasonable time, place and manner restrictions on where persons,
including those persons experiencing homelessness, may sit, sleep, or lie. Any such
regulation imposed by a city should be carefully vetted with the city's legal advisor.
2. Cities may prohibit persons, including those persons experiencing homelessness, from
blocking rights of way. Any such regulation should be carefully reviewed by the city's
legal advisor to ensure the regulation is reasonable and narrowly tailored.
3. Cities may prohibit persons, including those persons experiencing homelessness, from
erecting either temporary or permanent structures on public property. Given that cities
are required, by Blake, to allow persons experiencing homelessness to take reasonable
precautions to remain warm and dry when sleeping outside, any such provisions
regulating the erection of structures, particularly temporary structures, should be carefully
reviewed by a legal advisor to ensure the regulation complies with all relevant court
decisions and Oregon statutes.
4. If a city chooses to remove a camp site, when the camp site is removed, cities may
discard items with no apparent value or utility, may discard items that are in an
Guide to Persons Experiencing Homelessness in Public Spaces 10
Attachment 1, Page 10 of 12
unsanitary condition, and may allow law enforcement officials to retain weapons, drugs,
and stolen property.
5. Cities may create managed camps where person experiencing homelessness can find safe
shelter and access to needed resources. In creating a managed camp, cities should work
closely with their legal advisor to ensure that in creating the camp they are not
inadvertently positioning themselves for a State Created Danger allegation.
D. What Cities Should Practically Consider
While this guide has focused exclusively on what the law permits and prohibits, cities are also
encouraged to consider the practicality of some of the actions they may wish to take. Prior to
imposing restrictions, cities should work with all impacted staff and community members to
identify if the suggested restrictions are practical to implement. Before requiring any tent
pitched in the public right of way to be removed by 8 a.m., cities should ask themselves if they
have the ability to practically enforce such a restriction — does the city have resources to ensure
all tents are removed from public property every morning 365 days a year? If a city intends to
remove property from a camp site, cities should practically ask themselves if they can store said
property in accordance with the requirements of HB 3124. Both questions are one of only
dozens of practical questions cities need to be discussing when reviewing and adopting policies
that touch on topics covered by this guide.
Conclusion
Regulating public property, as it relates to persons experiencing homelessness, in light of recent
court decisions, legislative actions, and forthcoming judicial opinions is nuanced and
complicated. It is difficult for cities to know which regulations are permissible and which are
problematic. This guide is an attempt to answer some of the most common legal issues raised by
Martin, Blake, HB 3115, HB 3124, and the State Created Danger doctrine — it does not contain
every answer to every question a city may have, nor does it provide guidance on what is in each
community's best interest. Ultimately, how a city chooses to regulate its public property,
particularly in relation to persons experiencing homelessness, is a decision each city must make
on its own. A city's decision should be made not just on the legal principles at play, but on its
own community's needs, and be done in coordination with all relevant partners. As with any
major decision, cities are advised to consult with experts on this topic, as well as best practice
models, while considering the potential range of public and private resources available for local
communities. Cities will have greater success in crafting ordinances which are not only legally
acceptable, but are accepted by their communities, if the process for creating such ordinances is
an inclusive process that involves advocates and people experiencing homelessness.
Additional Resources
The League of Oregon Cities (LOC), in preparing this guide, has obtained copies of ordinances
and policies that may be useful to cities as they consider their own next steps. Additionally,
several municipal advisors who participated in the development of this guide have expressed a
willingness to share their own experiences in regulating public rights of way, particularly as it
Guide to Persons Experiencing Homelessness in Public Spaces
Attachment 1, Page 11 of 12
11
relates to persons experiencing homelessness, with Oregon local government officials. If you
believe these additional resources may be of use to you or your city, please feel free to contact a
member of the LOC's Legal Research Department.
Recognition and Appreciation
The LOC wishes to extend its sincerest thanks to the municipal attorneys who assisted in the
development of this guide. Attorneys from across Oregon came together over several months to
vet legal theories, share best practices, and create this guide. These attorneys donated their time,
experience, and resources — seeking nothing in return. And while a core team of attorneys was
gathered to build this guide, the LOC recognizes that the team's work stands on the shoulders of
every city and county attorney in Oregon who has been working, and who will continue to work,
to assist their community in addressing the homelessness crisis. For those attorneys not
specifically named below, please know your contributions are equally recognized and respected:
• Aaron Hisel, Montoya, Hisel & Associates;
• Chad Jacobs, Beery Elsner & Hammond;
• Eric Mitton, City of Medford;
• Kirk Mylander, Citycounty Insurance Services;
• Elizabeth Oshel, City of Bend;
• Mary Winters, City of Bend; and
• Grace Wong, City of Beaverton.
Guide to Persons Experiencing Homelessness in Public Spaces
Attachment 1, Page 12 of 12
12
Camping
Ordinance
and HB 3115
Presented by: City Attorney's Office
• This work session is intended to provide
Discussion information about legal issues involved in
addressing homelessness on City property
and revising the City's camping ordinance.
Context
• This work session does not address:
• Homeless camp cleanup
• Housing
• Camping on private property
�.urrent
Camping
ordinance
'rohibits
�
amping
'ubl1C
gone
Sidewalk, street, alley, right of
way, public park, road, parking lot
Bedding, sleeping bag, stove, fire,
IIIr
tent, lean-to shack, structure
Violation - fine only
Attachment 2, Page 3 of 11
•8tn Amendment
•Martin v. Boise
•Blake v. Grants Pass (X2)
Attachment 2, Page 4 of 11
9 N criminal or civil punishment
•Can regulate - time, place and manner
•No requirement to build shelters
• True and actual access to a shelter
•Ability to stay warm and dry
Attachment 2, Page 5 of 11
• HB 3115 -restates Martin and Blake
• Any city or county law that regulates the act of sitting, lying,
sleeping or keeping warm and dry outside on public property
must be "objectively reasonable" based on the totality of the
circumstances as applied to all stakeholders including persons
experiencing homelessness.
• A person experiencing homelessness can challenge
reasonableness in circuit court; not a private right of action but
can be awarded attorney fees.
• Implement by July 1, 2 0 �111 m,,l 2, Page 6 of 11
Undecideega rationsA AMM
• What other involuntary acts or human conditions will be considered an
unavoidable consequence of one's status or being?
• What about situations where jurisdictions collaborate to provide a shelter
that serves multiple jurisdictions?
• What specific time, place and manner restrictions can cities impose to
regulate when, where, and how a person can sleep, lie or sit on public
property?
• What specific prohibitions can cities impose that will bar a person who is
experiencing homelessness from obstructing the right of way?
• What specific prohibitions can cities impose that will prevent a person who
is experiencing homelessness from erecting a structure on public property?
Attachment 2, Page 7 of 11
• A city has a duty to act when it affirmatively
places a person in danger by acting with
deliberate indifference to a known or obvious
danger.
• Elements
• City's own actions created or exposed a
person to an actual particularized danger
they would not have otherwise faced
• Danger must have been one that was known
or obvious
• The city acted with deliberate indifference to
the danger
Attachment 2, Page 8 of 11
Think about this liability when
evaluating:
• The creation of a managed camp
• The enforcement of reasonable time,
place and manner restrictions
Attachment 2, Page 9 of 11
Restrictions must be
---1
-------- Am objectively reasonable
.Oca
ro"', a
�.,amping Comply with federal and
0 i i Li,? ie state law
N ILI Is ru
In place by 7/1/2023
Attachment 2, Page 10 of 11
Conclusion
• This area of the law is
developing
• Focus on jurisdiction specific
solutions and 'show work' to
avoid liability
81st OREGON LEGISLATIVE ASSEMBLY --2021 Regular Session
Enrolled
House Bill 3115
Sponsored by Representative KOTEK; Representatives DEXTER, MARSH, MCLAIN, POWER,
REYNOLDS, WILDE, Senators DEMBROW, MANNING JR, RILEY
CHAPTER.................................................
AN ACT
Relating to the regulation of public property with respect to persons experiencing homelessness; and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. (1) As used in this section:
(a) "City or county law" does not include policies developed pursuant to ORS 203.077 or
203.079.
(b)(A) "Keeping warm and dry" means using measures necessary for an individual to
survive outdoors given the environmental conditions.
(B) "Keeping warm and dry" does not include using any measure that involves fire or
flame.
(c) "Public property" has the meaning given that term in ORS 131.705.
(2) 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.
(3) It is an affirmative defense to a charge of violating a city or county law described in
subsection (2) of this section that the law is not objectively reasonable.
(4) A person experiencing homelessness may bring suit for injunctive or declaratory relief
to challenge the objective reasonableness of a city or county law described in subsection (2)
of this section. The action must be brought in the circuit court of the county that enacted
the law or of the county in which the city that enacted the law is located.
(5) For purposes of subsections (2) and (3) of this section, reasonableness shall be deter-
mined based on the totality of the circumstances, including, but not limited to, the impact
of the law on persons experiencing homelessness.
(6) In any suit brought pursuant to subsection (4) of this section, the court, in its dis-
cretion, may award reasonable attorney fees to a prevailing plaintiff if the plaintiff:
(a) Was not seeking to vindicate an interest unique to the plaintiff; and
(b) At least 90 days before the action was filed, provided written notice to the governing
body of the city or county that enacted the law being challenged of an intent to bring the
action and the notice provided the governing body with actual notice of the basis upon which
the plaintiff intends to challenge the law.
(7) Nothing in this section creates a private right of action for monetary damages for any
person.
SECTION 2. Section 1 of this 2021 Act becomes operative on July 1, 2023.
Enrolled House Bill 3115 (HB 3115 -INTRO) Page 1
Attachment 3, Page 1 of 2
SECTION 3. This 2021 Act being necessary for the immediate preservation of the public
peace, health and safety, an emergency is declared to exist, and this 2021 Act takes effect
on its passage.
Passed by House April 15, 2021
..................................................................................
Timothy G. Sekerak, Chief Clerk of House
..................................................................................
Tina Kotek, Speaker of House
Passed by Senate June 9, 2021
..................................................................................
Peter Courtney, President of Senate
Enrolled House Bill 3115 (HB 3115 -INTRO)
Received by Governor:
........................ M., ......................................................... 1 2021
Approved:
........................ M., ......................................................... 1 2021
................................................................................
Kate Brown, Governor
Filed in Office of Secretary of State:
........................ M., ......................................................... 1 2021
................................................................................
Shemia Fagan, Secretary of State
Attachment 3, Page 2 of 2
Page 2