It is unconstitutional to fine people experiencing homelessness for "engaging in unavoidable human acts" if they have nowhere else to go, according to a recent ruling in a federal lawsuit out of Grants Pass.
In the opinion issued by Oregon Magistrate Judge Mark Clarke on July 22, he wrote, "Arresting the homeless is almost never an adequate solution because, apart from the constitutional impediments, it is expensive, not rehabilitating, often a waste of limited public resources, and does nothing to serve those homeless individuals who suffer from mental illness and substance abuse addiction."
The ruling is only binding in Grants Pass, but it gives cities and lawyers guidance and case law on what cannot be punished, said Ed Johnson, director of litigation at the Oregon Law Center, which represented the plaintiffs in the lawsuit. "Right now, it's the best evidence of what the law is," Johnson said.
According to court documents, there is almost no affordable housing in Grants Pass, and the city also has no homeless shelters for any of its estimated 600 unhoused residents. But the city of Grants Pass enacted ordinances that made it a civil violation to camp or sleep on streets, sidewalks or alleys, and banned camping in parks.
Sleeping on the sidewalk could result in a $75 fine, and camping carried a mandatory fine of $295, according to court documents.
Three people who experienced homelessness while living in Grants Pass formed the class action case, Blake v. City of Grants Pass, in 2019. They sued the city in Medford's U.S. District Court of Oregon.
The case clarifies precedent set in Martin v. City of Boise. The 9th Circuit Court of Appeals stated in that decision that punishing people experiencing homelessness for sleeping outside when there are not enough shelter beds to shelter every unhoused person in the area violates the Eighth Amendment right against cruel and unusual punishment.
"What the courts are saying is you can't not have enough shelter and then punish the victims of our failed housing policy," Johnson said.
The U.S. Supreme Court let the Martin v. City of Boise decision stand in November 2019. That means the decision is binding in the 9th Circuit Court of Appeal jurisdiction, which covers nine states and two territories, including Oregon, California and Washington. Over a third of people experiencing homelessness in the United States reside in the 9th Circuit's jurisdiction.
The city of Grants Pass argued that Martin v. City of Boise precedent does not apply to civil violations. But Clarke wrote that the constitutional right against cruel and unusual punishment does not draw distinctions. "Even though Grants Pass labels the ordinances as violations, offenders of these violations are still subject to punishment," Clarke wrote.
The city of Grants Pass will appeal, said Gerald Warren, who represents the city in the suit. He declined to comment further.
The National Homelessness Law Center represented the plaintiffs in Martin v. City of Boise, and it filed a "friends of the court" brief in support of the plaintiffs in Blake v. City of Grants Pass.
Senior Attorney Tristia Bauman said that some cities reacted to Martin v. City of Boise's precedent by using other criminal ordinances or using civil violations to get around it.
"To our minds, one of the most important things about this Blake v. Grants Pass decision is it clarifies that the Eighth Amendment and (the Martin case) prohibit punishment for universal and unavoidable resting activities performed by people who are involuntarily in public space," Bauman said.
Neither this decision or the Martin v. City of Boise decision require that cities provide shelter options or give people a right to camp.
But the order also states that anti-sleeping laws aren't the only ones that may violate the Eighth Amendment. Johnson said this is one of the other key parts of the opinion.
"Unavoidable human activities are just that — anything that we all have to do because we're human beings," Johnson said. "It includes trying to stay alive by staying warm and staying dry, and not just the physical act of sleeping."
Judge Clarke gave some guidance on some minimal steps people who experience homelessness should be allowed to do to keep themselves warm and dry, and recommended that the city of Grants Pass look into other options besides police to respond to homelessness and mental health issues. He pointed to Eugene's first responder alternative CAHOOTS and Medford's transitional tiny house shelter Hope Village as examples.
Johnson said that looking for alternative models to dealing with issues in unhoused communities is part of a humane response to the problem. "There are a lot of other voices right now that seem to be almost unanimous in believing that the police are not the best entity to be first line responders to unhoused communities," Johnson said.
Bauman pointed out that homelessness disproportionately affects Black people and other people of color in the United States — nearly 40% of people experiencing homelessness are Black, despite making up only around 13% of the U.S. population.
"It's unhoused Black and brown people who are at the greatest risk of being punished for homelessness, which Black and brown people are at the greatest risk of experiencing," Bauman said.
As the case moves forward to appeals court, it could set precedent in the future. But Bauman said she cannot predict what that will mean. "What we hope for is that governments will look to other tools that it has to effectively address homelessness," Bauman.
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