ABA Journal

In 2013, the small Oregon city of Grants Pass debated how to deal with what public officials and others perceived to be a sharp increase in vagrancy and homelessness.

The community of more than 38,000 in southern Oregon had an unhoused population of at least 600 people who slept in cars, tents or were exposed to the elements around downtown and city parks.

Many strategies were discussed at a community forum, including buying one-way bus tickets out of town for homeless residents. But many of those people were “returned to Grants Pass with a request from the other location to not send them there,” meeting minutes say.

One city council member then proposed, according to the minutes, “mak[ing] it uncomfortable enough for [homeless people] in our city so they will want to move on down the road.”

The city began aggressive enforcement of a series of ordinances that bar “camping” on public property, which covered any bedding or blankets and any place where a person rested or slept, including tents and vehicles. Each violation was subject to a $295 fine, and two citations would subject violators to an exclusion order that made them guilty of criminal trespass if they remained on public property.

“People were being awakened in the middle of the night and being told there is nowhere in the city they were allowed to be,” says Edward Johnson, director of litigation for the Oregon Law Center. “They were getting the tickets, and then they were getting arrested for criminal trespass and going to jail.”

The statewide advocacy group helped organize a lawsuit challenging the city’s aggressive enforcement as punishing and criminalizing the status of homelessness in violation of the Eighth Amendment’s ban on cruel and unusual punishments.

They won in federal district court and had a significant, though scaled back, victory in the 9th U.S. Circuit Court of Appeals. The San Francisco-based appeals court in 2018 had issued a major ruling in a case, Martin v. City of Boise, holding that the government cannot punish homeless people for resting or sleeping outside when “they have no access to shelter.”

“As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter,” the 9th Circuit said in Martin.

In the Grants Pass case, the 9th Circuit extended its decision in the Boise case, which involved criminal violations, to include civil citations. It also upheld the certification of a class of plaintiffs.

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