FILE: Pedestrians walk along the Vera Katz Eastbank Esplanade in Portland, March 26, 2024.
Kristyna Wentz-Graff / OPB
Days after the U.S. Supreme Court granted cities the right to penalize people for living outside, Portlanders are left wondering: What does this mean for Oregon’s largest city?
The answer was clear in an email from the city’s government relations office Monday: “The decision has little or no impact to Portland.”
According to the city’s legislative team, Portland remains hamstrung by a state law meant to enshrine some of the protections overturned by the nation’s top court. That means that most city leaders are more focused on lobbying the state to adjust this law to make it easier to regulate where homeless Portlanders can rest. Some want to do away with the law completely. Other elected officials and homeless advocates, meanwhile, say the state law already grants the city the tools it needs to enforce basic anti-camping laws.
“We have the tools, we certainly have the money,” said County Commissioner Sharon Meieran. “We need to stop making excuses.”
The U.S. Supreme Court ruled that an anti-camping law in Grants Pass did not violate constitutional protections against cruel and unusual punishment — overturning lower-court rulings that had put limits on how cities can regulate homeless camping.
House Bill 3115, introduced in 2021 by Gov. Tina Kotek when she served as House speaker, was meant to act as a stopgap measure if the court rulings were upended. It requires that, if a city wants to regulate where people sit and lie in public, those regulations must be “objectively reasonable.”
The city tested the boundaries of that law last year, when it introduced a ban on camping on public property during daytime hours. That policy was immediately hit with a lawsuit, where several unhoused Portlanders argued that the ban was not objectively reasonable. At the time, a judge prohibited the city from enforcing this policy until that legal fight concluded. Not wanting to wait, Portland instead repealed the policy and replaced it with one it believed would pass legal muster.
That law allows people experiencing homelessness to camp on public property if no shelter beds are available, which is often the case in Multnomah County. But it limits what people can do while sleeping outside. For instance, the policy prohibits people from using a propane heater, digging into the ground, starting a fire, selling bicycles or car parts, or blocking access to private property while camping.
People who violate these rules can be fined up to $100 or be sentenced to up to seven days in jail. People will face the same penalties if an outreach worker with the city informs them that shelter space is available, but they refuse to pack up their camp.
This policy, which the city began enforcing this week, has not faced any legal challenges. Mayor Ted Wheeler has characterized the policy as a baseline that can be strengthened over time, if needed. But he believes that can’t happen without amending HB 3115
“As it currently exists, the ‘objectively reasonable’ standard in state law does not provide local governments with sufficient guidance,” said Cody Bowman, a spokesperson for Wheeler’s office. “Mayor Wheeler asks that the Legislature either specifically define the meaning of ‘objectively reasonable’ used in the statute to help cities like Portland comply with the law, or alternatively replace the general ‘objectively reasonable’ standard with clear and specific statewide requirements.”
Wheeler’s office plans on sending a formal request to the state Legislature in the coming weeks.
City Commissioner Rene Gonzalez, who is running for mayor, said he’d be open to repealing HB 3115 entirely.
“Blue cities have struggled in particular with the uncertainty of when and how local judges will use HB 3115 to interfere with localities addressing encampments,” wrote Gonzalez in an email to OPB, referencing the court-ordered hold on Portland’s initial camping ban last year.
Gonzalez said he is also considering making changes to the city’s “watered down” camping policy to make it “clearer and more easily administered.” He didn’t explain what those changes could entail.
The state law’s seemingly vague phrasing came largely at the request of cities, who were seeking flexibility for local camping rules. This includes Portland. In testimony submitted to the Legislature in 2021, City Commissioner Dan Ryan applauded the bill for creating a “framework for cities and counties to develop and update local ordinances with policies on public space management.”
But Portland’s support has since soured.
“State law continues to control and limit what Oregon cities can and can’t do,” wrote Sam Chase, head of Portland’s Office of Government Relations, in an email to OPB. “We hope the legislature will see this opportunity to consider the tools cities truly need to manage public camping, provide sufficient shelter, and keep our streets safe and clean.”
State lawmakers have already signaled their bipartisan interest in taking up changes to HB 3115 when the Legislature reconvenes next year.
Not all local elected officials believe the state law limits Portland’s ability to address unsheltered homelessness.
In a statement, City Commissioner Carmen Rubio said she believes the city can still effectively limit public camping while focusing on the root causes of homelessness
“We must continue to think big and keep stepping up housing production and increasing access to services for those with mental illness and substance abuse disorders,” Rubio, who is also running for mayor, said. “We can do both — be compassionate and hold the line when it comes to those very few cases of people who consciously refuse to abide by reasonable restrictions.”
County Commissioner Meieran, who is leaving the county board in December due to term limits, went further. Meieran said she thinks the city and county are using the state law as an excuse.
“The city and county have abdicated their responsibility to meaningfully address unsheltered homelessness for years,” Meieran said. “They already have the tools they need to do so.”
Meieran pointed to the hundreds of millions of dollars Multnomah County has received annually through the supportive housing services tax, which is reserved for programs that help transition people experiencing homelessness into stable housing. With those funds, she said, local governments have the ability to open more shelters and invest in more support services — tools that can decrease the city’s population of people living on the streets.
“We need to be meeting the needs of people living outside and their housed neighbors,” she said. “We need more places for people to go. Jail is not that place. Acting like that is the answer is absurd.”
Multnomah County Chair Jessica Vega Pederson declined to comment on whether her office will lobby the state for any changes to HB 3115. Meieran said it would be a waste of money to pay lobbyists to change the state’s public camping law, and that the money should instead be spent on shelter and housing.
Homeless advocacy organizations agree. Kat Mahoney, director of Sisters of the Road, said the state law offers a good “middle ground” to cities wanting to regulate public camping.
“I can see why folks are so fed up and tired,” Mahoney said. “We all want cleaner streets, we all would love to see less tents and garbage, I get that. But at the end of the day we have to figure out how to permanently house people.”
Mahoney said the city’s own anti-camping policy has stoked fear and confusion among homeless Portlanders she’s interacted with.
“A lot of them are scared because the options that are available like congregate shelters, or going to some of the smaller pod villages don’t work for them,” she said. That could be because people may be coping with trauma that makes living in a confined mass shelter anxiety-inducing, or that their criminal record may disqualify them from a shelter, among other barriers, Mahoney said.
According to Wheeler, this is addressed in the city’s policy. The law says people will only be penalized if they refuse “reasonable alternative shelter.” Wheeler has previously said this undefined term is meant to address situations in which people don’t feel like the shelter space the city offers them is safe or accessible. To Mahoney, it’s too vague.
Mahoney doesn’t see the Supreme Court ruling immediately impacting Portlanders living outside, despite the perceived gravity of the case. But she is prepared for homeless camping policies to play a large role in the city’s November elections, where all council seats are up for grabs.
“I think this topic is going to be weaponized on both sides,” Mahoney said. “It’s either people calling for heavy policing or to stop the sweeps. I’d love to see a middle ground. But it’s too divisive.”
The next City Council and mayor will be responsible for setting the city’s legislative priorities for the coming legislative session.
“I would just hope that they are all focused on housing,” Mahoney said. “None of these solutions — jail, tickets, whatever — actually solve homelessness.”