[Hpn] Homeless Camping Ban UNCONSTITUTIONAL, Judge Declares - Portland OR USA fw Judge Declares - Portland OR USA fw

Tom Boland wgcp@earthlink.net
Thu, 28 Sep 2000 23:05:38 -0700 (PDT)

Do laws where you live ban homeless from camping or living in vehicles?
Are such laws constitutional under state, federal and international law?

FWD  The Oregonian - Thursday, September 28, 2000


     A judge declares Portland's law unconstitutional,
     calling it cruel and unusual punishment and a
     violation of the right to travel

     By Michelle Roberts of The Oregonian staff

	A Multnomah County Circuit Court judge declared Portland's
anti-camping ordinance unconstitutional Wednesday, saying it "punishes the
status of being homeless."

	Judge Stephen L. Gallagher Jr. determined that the city's
19-year-old anti-camping law constitutes cruel and unusual punishment and
violates a homeless person's fundamental right to travel.

	"There are a great number of alternatives regarding housing, job
training, mental health services . . . that should be put into place . . .
before our city resorts to arresting individuals for sleeping and eating in
the only locations available to them," Gallagher wrote.

	Wednesday's ruling grew out of an anti-camping citation issued to a
homeless man and his son Feb. 10. Their lawyer argued that the ordinance
was unconstitutional under state and federal law and that the ticket should
be dismissed.

	The city in 1981 adopted the ordinance that permits police to evict
people from outdoor campsites where they sleep and store belongings. The
city has successfully defended the ordinance in other court challenges.

	But Gallagher was the first judge to rule on the ordinance's
constitutionality when he found that it criminalizes homelessness.

	"Performing such life-sustaining acts as sleeping with bedding is
necessary action for someone without a home," Gallagher wrote. "This act of
sleeping is not conduct that can be separated from the fact of the
individual's status of being homeless."

	Gallagher also said the ordinance unfairly distinguishes between
homeless people who have a place to keep their possessions, such as a
vehicle or a lean-to, and those who carry their bedding with them and
choose a different spot to sleep every night.

	Those who carry their belongings on their backs, Gallagher said,
can't be found in violation of the ordinance because it requires the
homeless to "exhibit a purpose of maintaining a temporary place to live."

	Gallagher said the ordinance also burdens homeless people's equal
protection and fundamental right to travel.

	"By denying (them) the opportunity to possess their belongings with
them while traveling throughout the city, they are being denied the basic
necessities required for daily living," Gallagher wrote. "This infringes on
(their) ability to travel freely." Those who favor the anti-camping
ordinance usually say the camps are unsightly and unsanitary and sometimes
are havens for people involved in illegal activity. Those who oppose the
ordinance argue there isn't enough shelter space for all the homeless in
the city, even though officials have made it a priority.

	Portland Mayor Vera Katz said Wednesday she hopes the city will
appeal Gallagher's ruling.

	"I can't see spending millions of dollars to make sure the homeless
are housed and at the same time see them camp in our streets," Katz said,
referring to the Portland/Multnomah County Shelter Reconfiguration Plan.
"Our preference is to see the homeless have roofs over their heads."

	But some say that isn't always possible.

	Norman D. Wicks Sr., 56, and Norman D. Wicks Jr., 23, who for the
past five years have lived in their 1976 Chevy pickup with a camper in the
bed, were approached by police after a Northeast Portland resident called
to complain that their vehicle had been parked on the street on and off for
several days.

	A police officer approached their truck, gave them a ticket and
told them to leave.

	The elder Wicks receives Supplemental Security Income benefits, and
his son earns money running a computer parts recycling business out of the
back of their truck, which also holds all their possessions. The pair told
the court they also have trouble getting housing because of the elder
Wicks' seven felony convictions for burglary, theft and criminal mischief.

	According to the Wickses' lawyer, Julie Stevens, a staff attorney
for Legal Aid Services of Oregon, a nonprofit organization that provides
civil legal assistance for low-income people, the father and son couldn't
have found shelter care that cold night in February if they'd tried.

	"We're talking about a 28-degree night in February and a father and
son who had nowhere to go but their truck," Stevens said, adding that a
homeless advocate testified that all the shelters in Portland were full
that night. "The judge ruled they were punished because they were homeless,
and for no other reason."

	Since the Wickses appeared before Gallagher in June, they have
gotten several other camping tickets, Stevens said. Those cases, and those
of other homeless people, have been held pending Gallagher's decision.

	"I would certainly hope all these tickets would be immediately
thrown out," Stevens said Wednesday.

	Attorneys for the city could not be reached for comment Wednesday,
but Stevens said they are expected to appeal the ruling.

	During the Wickses' case, the city argued that homelessness is not
a status but a condition that comes from voluntary acts.

	Gallagher, however, disagreed that homelessness must be defined
either as a status or a condition. "That appears to be a matter of
semantics," Gallagher wrote. "Rather, the court must determine if it is the
status or the conduct that is being punished."

	The Wickses still live in their truck, Stevens said. But a homeless
advocate who testified at their trial recently found them a home. They are
expected to move in next month, Stevens said.


**In accordance with Title 17 U.S.C. section 107, this material is
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