In May, the Portland City Council approved an ordinance that would allow homeless people who camp on public property and reject offers of shelter to be fined up to $100 or sentenced to up to seven days in jail. That ordinance went into effect at the beginning of July, but was put on hold because of extreme heat. At the same time, the U.S. Supreme Court ruled that cities have the right to penalize people for living outside. Then a few weeks ago Portland police made their first arrest under the new rule, but county deputies at the Multnomah County Detention Center refused to process the man. Portland Mayor Ted Wheeler joins us to talk about how the city is addressing unsanctioned camping.
Note: The following transcript was created by a computer and edited by a volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. In May, the Portland City Council approved a new anti-camping ordinance. It says that people who camp on public property and reject offers of shelter can be fined up to $100 or sentenced to up to seven days in jail. But last month, when Portland police made their first arrest under this new ordinance, deputies at the Multnomah County Detention Center refused to process him. Portland Mayor Ted Wheeler joins us now to talk about all of this and more. Mayor Wheeler, welcome back.
Ted Wheeler: Thanks, Dave. I appreciate it.
Miller: I want to start first with the Supreme Court, which threw the issue of policing homelessness back to cities and states in its Grants Pass decision. Some states don’t have statewide policies, but Oregon does. As of a couple of years ago, House Bill 3115 says that restrictions on public camping have to be quote, “objectively reasonable.” You’ve said that you want more clarity about what that phrase, what those words mean. So what do you see as the big question marks?
Wheeler: Great. Thank you for the question because it’s an important one. And it’s one that we’re spending a lot of time here at City Hall, and with our county partners and our state partners reflecting upon. So, first of all, 3115 codified Martin v. Boise. And 3115 – which by the way, just as an interesting point of fact, was championed by then House Speaker, now Governor Tina Kotek – sought to make it such that if jurisdictions like Portland wanted to enforce camping restrictions, then we had to state publicly what the standards were. In other words, we had to have objectively reasonable standards.
We put forward an ordinance. That ordinance we believed was reasonable. It identified specific behaviors that we thought were self-evident: no gas heaters or fires, no tents blocking building entries or exits, no piles of garbage, no damage to natural areas or other sensitive environmental areas and the like. Nonetheless, we were sued and a local judge enjoined us, meaning the judge said we could no longer enforce that ordinance.
So we came up with a second ordinance, which is the one that we have today. And the goals are simplest, to maintain public rights of way and protect environmental areas, connect people with services so they can get off and stay off the streets. And for that very, very small population of people who repeatedly refuse those services or continue to violate the law, there are potential sanctions, as you mentioned.
Miller: But what do you see as the question marks here? I mean, is it that you definitively know that there are things that you want to do that you can’t do or you’re unclear about your authority?
Wheeler: So what is unclear is the definition of the term “objectively reasonable.” The bill, 3115, did not define that term and the courts refused to clarify why they thought our ordinance was not objectively reasonable when they enjoined us. So what we’ve asked our legislative colleagues for is clarification, in the next session, about what specifically do they mean when they’re talking about objectively reasonable? If it’s not to limit fires, or to block exits, or to prevent public health or environmental damage, then what is it that they’re referring to?
Miller: I should say just so listeners … you know this, but the governor has been pretty clear that she doesn’t see a need right now to do that. And there are some lawmakers who have talked about maybe being open to revisiting this bill, but it doesn’t seem like there’s a groundswell. So far, I haven’t seen a real appetite on the part of lawmakers to revisit this in the coming session. We’ll see. Anything could happen in 2025. You said that this law codifies the Martin v. Boise decision. But that actually has been an open question to me.
So one of the big things the U.S. Supreme Court did in its Grants Pass case was to overturn that Boise decision, which among other things said that you couldn’t criminalize public camping if there were no available shelter options. As I read that, the very short Oregon law that we’re talking about here, I don’t think it says anything about available shelter space or offers of shelter, but Portland’s ordinance that you passed in May, it does.
Wheeler: Yes.
Miller: Is it the case now that Portland’s ordinance is less restrictive than what would be allowed under state law?
Wheeler: The answer is potentially … let me explain. I don’t want to get into an argument over legal minutia because I’m not an attorney. But let me explain why we have this balance built into our ordinance. As municipal officials, my colleagues and I on the city council have to balance competing interests. We have to protect our housed neighbors. We have to protect our unhoused neighbors. And so we’re trying to find the right balance.
When it comes to this particular law that you’re talking about, our camping law, we’re balancing carrots with sticks. We believe we’re providing humane alternatives to help people connect to services, to get off the streets, whether it’s housing, shelter, [or] some of the things that we do around connection to service, navigation, hygiene services, job training. We provide those compassionate alternatives because we want to help people. We’re not trying to jail them.
We’re trying to get them connected to services and off the streets on one hand. On the other, when we have individuals who year after year refuse the carrots, refuse to follow the laws, endanger themselves, endanger the public at large, then we need to have the stick and that’s also built into the ordinance. So our first goal is to connect people to social workers, connect them to help, get them into our task sites, so they are navigated to tailored services themselves and get them into housing. That’s our first goal. But for those who just say, heck no, I’m not playing, I’m not going to abide by the rules, I don’t care about building fires in neighborhoods, I don’t care about sensitive environmental areas, we need to have this stick. And that’s what our local ordinance attempted to do.
Miller: As the mayor and the commissioner of the Police Bureau, where does enforcing this ordinance sit right now in the bureau’s priorities?
Wheeler: So to be clear, we are not attempting again to prioritize law enforcement. I’m gonna give you an example – when a camp is called in, there is a team that is sent out of Portland employees who actually go out and objectively evaluate the campsite. They fill out a form which measures certain criteria about the camp, around safety, around environmental issues, around public health issues, around other types of issues. And if it makes it into the top threshold, that camp can be referred.
But I want to give you an example – just in the month of July, our city’s impact reduction program performed almost 4,000 site assessments. Of the 4,000, nine were referred to law enforcement. Five of the individuals either accepted our shelter offer or moved. One was arrested and three were cited, and then their sites were cleared. So it is a very, very small fraction that actually ends up interacting with the criminal justice system. The vast majority work with our social workers, they get into shelter, they get into services or they move on. And that’s what we’re seeking to do here.
Miller: Do you think that though, that ratio … so just to be clear, 4,000 site visits in one month …
Wheeler: Site assessments.
Miller: Site assessments. OK.
Wheeler: Just in the month of July. And of those site assessments, a grand total of … as of yesterday, one person was arrested, three were cited and their sites cleaned. On the other side, not part of this program, our city outreach workers approached 74 people just last week with offers of shelter.
So what I want the public to understand from this is this is not a heavy handed approach. This is an approach that is based on trying to get people connected to services, help them get off the streets. But for that very, very small population of people who are service resistant, who don’t want to abide by the rules, who put themselves and other Portlanders in danger, we now have a clear stick – and we will use it.
Miller: If we’re going to focus on the arrest as the most dramatic version of the stick, as many folks call it – carrot and stick – do you think that ratio [of] 4,000 to 1 is reflected at all of the newness of this ordinance? Or do you think that something like that is something we could expect in the months and years to come?
Wheeler: So in the last several years that we have been working on city design outreach, the work we’ve done around the Safe Rest Villages, the work we’ve done around the task sites, the work we’ve done pairing our police officers with social workers and outreach workers, what we have found is the vast majority of people who identify as homeless do not want to have interactions with law enforcement. They would much rather either comport by the rules or seek assistance through our outreach teams than be involved with law enforcement.
So I think going forward, you’re still going to continue to see very, very few people who have interactions with the criminal justice system. But I am equally determined that we maintain those enforcement mechanisms as an added incentive to get people out of dangerous situations, not only for themselves but for Portlanders at large. And I’ll give you a very specific example. You may recall that on July 26th, a gentleman by the name of Alasdair Macdonald was arrested. He’s been camping for over five years in Northeast Portland, by his own admission to the press. He has been approached many, many times with offers of housing, of shelter, of connection to services and he has repeatedly rejected those offers.
Meanwhile, he also has a large stash of flammable liquids, propane, gasoline and whatnot, very close to houses in Northeast Portland that house families with children. He is a threat to himself and he is a threat to the neighbors as long as he engages in those activities. And we offered him, carrot after carrot after carrot, and he said, “No, arrest me.” And so we did. I was hopeful that he was on his way to improving his circumstances. Unfortunately, when our officers made the arrest and took him to the county jail, the jail refused to book him.
Miller: I want to turn to this now.
Wheeler: Sure.
Miller: So folks understand, that booking process – and correct me if I’m wrong here – it involves collecting personal information from a suspect, taking their fingerprints and mugshot, effectively creating a record of their arrest in the county’s criminal justice system.
The sheriff, Nicole Morrisey O’Donnell has said that she does not want to do this, that she doesn’t want to book people in the jail, to process them in this way for this particular ordinance infraction. So what does it mean if that piece of the criminal justice system’s wheel-turning doesn’t happen?
Wheeler: Well, this is an important part of the enforcement mechanism. And frankly, it is the part of the mechanism that, if I may be so bold, creates the most anxiety for people who do not want to change their ways. And I’m gonna tell you the rest of the story because there’s more to this story. Mr. McDonald was not booked. He was released and just a couple of days later, according to police records, he was involved with a serious altercation. In other words, a fight. He was getting into it with somebody else. The neighbors called the police. And here he is now again, potentially involved with the criminal justice system. Now, I don’t think the individual wanted to file charges, but we missed an opportunity to protect him from more significant issues and we missed a clear opportunity to protect the public.
Miller: But I’m a little confused about the connection that you’re drawing here because my understanding was what didn’t happen, what the sheriff prevented from happening, was a booking process. But that’s different than pretrial detention, right? I mean this individual, he was still going to have to face some kind of court appearance at some point where a judge would decide whether or not he could spend up to seven days in county lockup?
Wheeler: Yeah. And again, I don’t want to get too far into the details, but I will explain this. So we have continued our enforcement mechanism and the way we’ve done it is basically, we’ve created a shadow. I use the term booking, not in the official sense, but we take people to the precinct, we hold them until we have all of the paperwork and all of the work done that we are allowed to do. But it is not the same as being booked into the jail by the county sheriff.
I did meet with the sheriff last week. We talked through what were some of our potential differences here. I do want the public to know, I think we are moving forward together. And in the very near term, we will have a path that is unified and that is my objective here.
Miller: That’s a little bit surprising given what she said in a statement. She said this: “As the elected official charged with managing the jail, I believe we need to utilize the correction system as a place for people who pose a genuine danger to the public. And that does not include individuals whose only offense is living unsheltered. Arresting …”
Wheeler: That is not his only offense.
Miller: Wait, wait. This is what she said and …
Wheeler: I understand that, but here’s my point …
Miller: But let me just finish. Let me finish what she said, because …
Wheeler: Sure.
Miller: … I am curious about the reckoning that the two of you had and the way you have come to some kind of agreement. She also said, “Arresting and booking our way out of the housing crisis is not a constructive solution.”
So that was her statement. It was not necessarily about any one person. That was her overall philosophy, which is both a kind of philosophical approach to this issue and, I think, a resource or a logistical one as well. You’re saying that since then, the two of you have come up to some kind of agreement?
Wheeler: I wouldn’t say we’ve come to an agreement. I would say that the sheriff asked us to provide additional data, the kind of data that I’m providing to you and your listeners today, that I hope will convince her that this is not a heavy handed approach.
And Dave, I have to take a moment and object to the language that we are in some way criminalizing people for being homeless. That is 100% false. We are criminalizing behaviors. And to suggest that somebody stacking up propane canisters next to an occupied home, or blocking critical exits, or creating environmental or public health issues is not a problem, I think eliminates the reality that we at the city level … we’re in the middle of all of this. We’re at the street level, we have to balance these interests. We want to be compassionate and we have been compassionate in our approach. But we also have an affirmative obligation to maintain public safety, public health, maintain right of ways. In fact, we’re under a separate settlement agreement with the disability community to maintain egress on our right of ways and we want to protect the environment.
So it’s not for being homeless that they are being sanctioned. It’s for these other rule offenses which do pose a real material threat to the public and frankly to homeless individuals as well.
Miller: There’s so much more to get to and we have six minutes left. Let me squeeze this in.
Wheeler: Sure.
Miller: Another big thing that’s on the horizon now, statewide, is starting September 1st, a new criminal charge for drug possession is going to go into effect. This is obviously the recriminalization after Measure 110. Is the Portland area ready?
Wheeler: So the Portland area does not have a fully baked solution, but the process is underway. And as you know, the county … the one sentence intro for people who may not follow this, the legislature through House Bill 400, to recriminalized small amounts of drugs. If you are caught, you have two choices. You can go to what’s called deflection, or you can be cited or arrested for possession.
The deflection piece is what the county is working on right now. They hope to have that up and operational soon. My personal view is deflection without treatment is only a half approach. We need more treatment beds. We need places that people can go when they’re ready for that treatment. But I think it’s good we’re getting the doors open. The first step will be done in accordance with the timeline required by House Bill 4002, which is mid-September. My colleagues and I on the city council are getting a full work session on this on August 27th. I understand the county has hired a topnotch group of folks from Baltimore to run that deflection facility. They’ve apparently been doing this successfully for 50 years and have a great reputation. But we also need to keep pushing for the sobering piece of this. The treatment piece of this needs to be there for this to be successful in the long-term.
Miller: For people who haven’t been paying attention, you’ve embarked on a kind of, I don’t know, I think of it as a soft launch of the new form of city government in Portland. On July 1st, in preparation for the official changes in 2025, you took over control of all the bureaus.
Wheeler: Yeah.
Miller: How has that been going so far? You called it a kind of “test and refine approach” for the new government’s governance system. The short version of the short question is, what have you already learned from this in just a month and a week?
Wheeler: Well, I don’t say this very often, Dave: it’s going better than I expected. There’s three goals that we set at the beginning of this process. The first was to create a unified executive branch of government underneath an interim city administrator; to also create an effective legislative branch that, as much as possible, mirrors the new form of government; focus on the city’s four priorities [which are] homelessness, public safety, livability and economic recovery. And between now and January, our third goal is to also find efficiencies and improvements in the way that we conduct government.
In each of those three areas, we have succeeded. We already have an executive branch up and operating. I took all the bureaus back. I have delegated a tremendous amount of authority to the city administrator and the deputy city administrators. We are remaining focused on our four priorities, per the discussion you and I just had, for example, around homelessness. But we’re also looking to continue our efforts around gun violence and improvements in livability and the economy.
And last but not least, we’ve already seen some wins around increased efficiency and improvements in government. Just in the few months that we’ve been operating this, we’ve seen improvements around emergency management. We’ve seen improvements around livability. We’ve launched our Portland Solutions program citywide.
So things are going, from my perspective, very well. And I believe that on January 1st, 2025, we will have no problems transferring this government to the next mayor and the next city council. It will be up and operational.
Miller: I’m gonna ask you a question about something that was just in the news yesterday. The Oregonian broke the story that Commissioner Rene Gonzalez spent $6,400 in taxpayer money to hire a company to suggest edits to his personal Wikipedia page. Is this an appropriate use of public money?
Wheeler: I’m not going to comment on that. There’s a lot of stories about government spending and I’m just not going to get dragged into any of it.
Miller: Is that something you would do?
Wheeler: I don’t actually like social media. I very rarely look at social media and I don’t believe I’ve ever visited my Wikipedia page. And mentally, I’m better for it.
Miller: Briefly, Nike and Intel – huge players in the Portland area economy – they’re both struggling in terms of sales and employment. Do you think that their struggles could have an effect on the city? Is this something that worries you?
Wheeler: It worries me tremendously. We have put a lot of eggs in a very small basket with Nike and Intel, and our state’s economy would definitely be significantly negatively impacted if either or both of those companies had a significant stumble. And over the long-term, one has to assume that other players will enter their markets. For example,
Nike has to deal with On and other upcoming competitors.
With regard to Intel, the chip market is very competitive, very complex, very capital intensive. And so we need to continue to diversify the economy. And as I tell people often, Portland is one of the largest jurisdictions, largest cities in America that has no Fortune 500 companies based within its city limits. Additionally, a lot of cities, modern cities, are benefiting from their university infrastructure.
Miller: Mayor Wheeler, I hate to say this, but we’re out of time. Mayor Wheeler, sorry about this, but thanks very much for joining us.
Wheeler: Thanks. Yep. Bye.
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