IN THE CIRCUIT COURT FOR THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
STATE OF OREGON
NORMAN D. WICKS, SR. and
NORMAN D. WICKS, JR.
Case No. Z711742 & Z711743
OPINION AND ORDER GRANTING DEFENDENTS’ MOTION
TO HOLD PORTLAND’S CAMPNG BAN UNCONSTITUTIONAL
This case came before the Court on June 14, 2000. Defendants, Norman D. Wicks, Sr. and Norman D. Wicks, Jr. were cited for violation of the City’s anti-camping ordinance, Portland City Code, Tile 14, 14.08.150, on February 10, 2000. Defendants argue that enforcement of the ordinance against the homeless constitutes cruel and unusual punishment, violates the equal protection clause of the 14th Amendment, and impedes their right to travel.
A resident in a NE Portland neighborhood called the police to complain about a vehicle that had been parked on a public street, in various locations, on and off for a number of days. The police arrived at the location and contacted defendants, who were located in the camper portion of their vehicle. Defendants had bedding, a stove and cooking utensils in the camper. The police did not inquire as to how long the defendants had been parked at that location. Defendants testified that they had been conducting business during the day and had been parked in that location only for an hour or so. Defendants do admit to parking in various locations in that area each evening and then leaving in the mornings to run their computer parts recycling business.
Defendants had maintained a place to live until sometime in 1995, when they were evicted from their home by a new owner. Norman Wicks, Sr. receives Supplemental Security Income each month due to a disability, having been diagnosed as suffering from Post Traumatic Stress Disorder (PTSD). Norman Wicks, Jr. earn money running the computer business out of his truck. The two have been unable to obtain permanent housing and have been living out of their truck off an on since 1995. Defendants have had difficulty in locating permanent housing due to substantial costs involved in moving into a new residence, especially given their low income, and difficult locating Section 8 housing due to Mr. Wicks, Sr.’s past felony conviction.
Expert testimony was offered regarding the general shortage of beds available to the homeless and the weather conditions at that time in February.
APPLICATION OF THE ORDINANCE
PCC 14.08.250 provides:
The ordinance has been interpreted to include the added requirement that the defendant has "exhibited" a ‘purpose of maintaining a temporary place to live.’" City of Portland v. Johnson, 59 Or App 647, 651 P2d 1384 rev den 294 Or 492 (1983). This requirement is said to "modify and limit the definition of ‘campsite’ and ‘camping.’" Id.
Despite common understanding of what constitutes a campsite, nevertheless under the ordinance Defendants’ truck is a campsite by definition. This is so because defendants store all of their belongings in the truck and they have nowhere else to reside. The fact that defendants are homeless necessitates that they carry their property with them at all times, including that needed to conduct essential daily living requirements. This includes bedding materials and utensils to prepare meals. Anytime defendants remain in their vehicle, they are located in a campsite. If they have nowhere else to reside, they are necessarily in violation of the city.
ENFORCEMENT OF THE ORDINANCE CONSTITUTES
CRUEL AND UNUSUAL PUNISHMENT
The ordinance is unconstitutional as applied to the homeless under both Article I Section 16 of the Oregon Constitution and 8th Amendment of the United States Constitution.
A state may nor punish a person merely for status. Robinson v Sate of California, 370 U.S. 660 (1962). In Robinson, the state of California made it a criminal offense to be addicted to narcotics. The Court held that it was cruel and unusual punishment in violation of the Fourteenth Amendment to punish a person based on his/her status as a narcotic addict. Id. Defendants argue that Portland’s ordinance similarly punishes the status of being homeless. The City argues that being homeless is a condition, not a status. The City also contends that "’homelessness’ is not a status like age and gender." Brief of Amicus – City of Portland at 15. One must not confuse immutable characteristics such as age and gender, which may be considered a suspect classification, with status, which the Supreme Court has held to include such circumstances as drug addiction.
Status was clarified in Powell v State of Texas, 392 U.S. 514 (1968). In Powell, the defendant was convicted of being in violation of a statue making it a crime to be intoxicated in a public place. The defendant argued that he was being punished for his status of being a chronic alcoholic, claiming this was impermissible under Robinson. The Court upheld the statute stating that the defendant was convicted for his status as an alcoholic, but rather for this conduct after drinking – being in public. The Court found "[t]he State of Texas thus has not sought to punish a mere status, as California did in Robinson; nor has it attempted to regulate appellant’s behavior in the privacy of his own home." Id. At 532.
The court is influence by Justice White’s concurrence, where he discussed that his opinion may have been different had the defendant been homeless. "The facts remains that some chronic alcoholics must drink and must drink somewhere. Although many chronics have homes, many others do not. . . For some of these alcoholics I would think a showing could be made that resisting drunkenness is impossible and that avoiding public places when intoxicated is also impossible. As applied to them this statute is in effect a law which bans a single act for which they may not be convicted under the Eighth Amendment – the act of getting drunk." Id. At 551.
In Oregon, it as held that dangerous offender statute permissibly enhanced the sentence of the defendant who had been diagnosed with a severe personality disorder. State v. Caughey, 89 Or App 605 (1988). The court held the defendant was not being punished for his status of having a personality disorder, but rather "[i]t merely reflects the legislative recognition that a person who has a severe personality disorder that causes him to commit dangerous crimes is less amenable to rehabilitation." Id. At 607.
In the light of both Oregon and federal law, the court must determine if PCC 14.08.250 is punishing defendants for their status of being homeless, or for their conduct, distinguishable from the fact that they are homeless.
The court finds it is impossible to separate the fact of being homeless from the necessary ‘acts; that go with it, such as sleeping. The act of sleeping or eating in a shelter away from the elements, cannot be considered intentional, avoidable conduct. This conduct is ordinary activity required to sustain life. Due to the fact that they are homeless, persons seek out shelter to perform these daily routines. Yet the City considers this location to be a campsite if the homeless person maintains any bedding. The homeless are being punished for behavior indistinguishable from the mere fact that they are homeless. Therefore, those without homes are being punished for the status of being homeless.
There is a distinction between those homeless who have a place to maintain their possessions, such as a vehicle or a leant-to, and those homeless less fortunate who carry their bedding materials with them and choose a different spot to sleep on any given night. The court does not believe those particular homeless individuals could be found in violation of this ordinance due to the added requirement of "exhibiting a "purpose of maintaining a temporary place to live.’"
The set of circumstances before us can distinguish from Powell and Caughey. In Powell, the defendant was not punished for being a chronic alcoholic, but rather for choosing to place himself in public setting after becoming intoxicated. In Caughey, the defendant was found to be dangerous and less amenable to rehabilitation. Here, defendants were merely found to be in possession of bedding material in an area where they intend to sleep – a basic requirement of sustaining life.
The City argues that status is something one has not control over. After discussing Pottinger, the City footnotes the proposition that homelessness may derive from voluntary acts, suggesting that the person has put himself in the position of being homeless and therefor cannot claim it to be a status. This court does not accept the notion that the life decisions of an individual, albeit seemingly voluntary decisions, necessarily deprive that person of that status of being homeless.
Consider Robinson, where it was held that a person may not be punished for the status of being a drug addict. Although the Court in Robinson did discuss possible circumstances when drug addiction could be involuntary, such as a newborn addicted from the time of birth and a patient using medically prescribed narcotics, Id. At 667 n.9, it is clear that many addicts become addicted to narcotics by making voluntary decisions at the beginning of the addiction. The fact Robinson once chose to pick up a needle did not foreclose him for attacking a statute unfairly punishing him for the arguably inevitable result down the road – that he is now an addict.
ENFORCEMENT OF THE ORDINANCE VIOLATES EQUAL PROTECTION AND
IMPEDES THE HOMELESS’ CONSTITUTIONAL RIGHT TO TRAVEL
Equal protection requires that those individuals similarly situated are treated alike. City of Cleburne v Cleburne Living Center, 473 U.S. 432, 439 (1985). The rational basis test is applied when considering laws under equal protection analysis. However, when a suspect class is involved, or there is an infringement of fundamental right, strict scrutiny is the proper test to be applied. Id. At 440.
The right to travel has long been considered a fundamental constitutional right. Attorney General of New York v. Soto-Lopez et al., 476 U.S. 898 (1986). Oregon extends this right to include intrastate travel in addition in interstate travel. Josephine County School District No & v. Oregon School Activities Association, 15 Or. App. 185, 515 P.2d 431 (1973). It is not uncommon for the infringement on the right to travel to be an indirect impairment of the right. "Out right-to-migrate cases have principally involved . . . [an] indirect manner of burdening the right." Soto-Lopez at 903.
PCC 14.08.250 effectively restricts the homeless’ right to travel. The homeless carry their belonging with them, or store them in a location to which they have access. Those belongings necessarily include tools required to participate in the basic necessities of life – bedding for sleeping and a stove for food preparation. If a homeless person is travelling through our city, or travelling within our city looking for work and a permanent place to reside, he is not allowed to remain in his vehicle or lean-to without being in violation of the ordinance. By denying defendants the ability to partake in simple necessities of life, the ordinance restricts their freedom of movement. Homeless choosing to travel through our city are not allowed to stop without being in violation. Those homeless who are trying to make a life in the city are in constant violation.
The fact that a number of homeless in our city are in the midst of traveling was recognized at the hearings regarding passage of the ordinance. "We have found in surveying those who are involved in the camping out, that the majority of them, the preponderance of them are in transit thought the City of Portland to somewhere else, or newly arrived here." Deputy Chief Gary Haines of the Portland Police Bureau, Minutes of May 28, 1981, Reel 4579, p. 830-831.
The court has found that the ordinance burdens the homeless’ fundamental right to travel. The court must now consider whether the ordinance is necessary to further compelling state interest. In Johnson, the court cites language from the preamble of the ordinance regarding its purpose. "The Council finds . . .[t]hat such persons [remaining at campsites], by such actions are creating unsafe and unsanitary living situation which pose a threat to the peace, health and safety of themselves and other citizens of the City." Johnson at 650.
Although protecting the health and safety of the citizens of this city may very well be compelling, there are less restrictive means to address the problem. The Wicks found themselves living out of their car due to their inability to find adequate and affordable housing. Rather than slapping a homeless person with a citation for maintaining life in public place, the city could first explore avenues of providing sufficient housing for all individuals. Adequate services should also be in place to help individuals find housing and jobs. Expert testimony was offered at trial regarding the insufficient number of bends available to the homeless, particularly during winter months. The safety and cleanliness of some shelters were also considered. "[E]ven where there is available space in a shelter, it may not be a viable alternative ‘if as is likely, the shelter is dangerous, drug infested, crime-ridden, or especially unsanitary . . . Giving one the option of sleeping in a space where one’s health and possessions are seriously endangered provides no more choice than does the option of arrest and prosecution.’" Pottinger at 1580.
There are a great number of alternatives regarding housing, job training, mental health services, etc. that should be put in place to both minimize the effect of homelessness, and eliminate homelessness altogether, before our City resorts to arresting individuals for sleeping and eating in the only locations available to them.
Individuals without a home must carry what belongings are necessary to survive, such as bedding and food, with them at all times, or store them in place to which they have access. The place where these belongings are kept is by law deemed to be a campsite. Every time a homeless person remains at that location, he is in violation. Those who carry their belongings on their person and move about day today, however, are not in violation; they have not exhibited required intent of ‘maintaining a temporary place to live.’
The anti-camping city ordinance is unconstitutional as applied to homeless in violation of the 8th Amendment of the United States Constitution and Article I Section 16 of the Oregon Constitution. Those without homes impermissibly punished for the status of being homeless. Performing such life sustaining acts as sleeping with bedding is a necessary action for someone without a home. This act of sleeping is not conduct that can be separated from the individual’s status of being homeless. Portland’s anti-camping ordinance punishes the status of being homeless.
The ordinance also violates equal protection and the fundamental right to travel. By denying homeless the opportunity to posses their belongings with them while traveling throughout the city, they are being denied the basic necessities required for daily living. This infringes on the homeless’ ability to travel freely. Restrictions on a fundamental right must be necessary to further a compelling purpose to comport with the Constitution. Although the City’s purpose may very well be compelling, i.e. to protect the safety and welfare of all its citizens, there are less intrusive means available to achieve the same purpose. Therefor the ordinance violates the homeless’ equal protection and constitutional right to travel.
The ordinance is hereby found unconstitutional and defendants are found to be not guilty.
Dated this 27th day of September, 2000.
Honorable Stephen L. Gallagher, Jr.