Re: opinion in Blake v Grants Pass unhoused camping case, and implications for Portland

Lea Peace


What’s it going to take to make use of empty units for the unhoused. I’m not convinced we need to build more affordable housing if  we have lots of empty unaffordable units.  

A tax on empty, unused residential and commercial buildings? 

Lea Peace

On Jul 23, 2020, at 7:09 PM, Tim McCormick <tmccormick@...> wrote:

In US District Court, Medford, Judge Clarke has issued an opinion affirming the unconstitutionality of criminal or civil penalties for unhoused individuals sleeping or camping in public spaces, if the activity is effectively unavoidable. It affirms and in some ways extends the 2018/19 Martin v Boise ruling of the 9th Circuit. 


There are several ways I think Blake extends Martin that could have significant bearing on Portland: 

First, the Blake ruling affirms the unconstitutionality of civil violations and punitive fines in such situations, not just criminal penalties. 

Second, Blake clarifies an ambiguous point in Martin, by holding that the 8th Amendment protects not just sleeping, but "necessary minimal measures" that are "life-sustaining," ie to keep warm and dry. This could plausibly apply to 'structures', the ordinance banning which is apparently City of Portland's current basis for removing campers and campsites. (under City Code 14A.50.050 "Erecting Permanent or Temporary Structures on Public Property" 

"this Court finds that it is not enough under the Eight Amendment to simply allow sleeping in public spaces; the Eight Amendment also prohibits a City from punishing homeless people for taking necessary minimal measures to keep themselves warm and dry while sleeping when there are no alternative forms of shelter available."

Further, the Court notes (ironically, citing the Oregon League of Cities amicus brief supporting Grants Pass), "Oregon's cities are obligated to provide safe and livable communities for all residents." 

I think given the wide incidence of violent crime against the unhoused, there's a strong and now strengthened argument that 8th Amendment protection of necessary, minimal, life-sustaining self-protective measures includes those for safety of person and of crucial possessions, e.g. by having a secure enclosed space. 

In this Blake opinion, the Court invokes a doctrine less commonly heard in this field, but I think crucial: that at issue is not just what cities are disallowed from doing, but what positively they are obligated to do for all residents, to protect their "safety and welfare"; which is the justification for their state-granted "police power" to regulate land use at all.  This, incidentally, could be an argument against cities allowing informal camps where no minimum provision of safety and welfare is assured.


Thirdly, the Blake ruling explicitly presents as exemplary alternatives, Medford's Hope Village (below left) and Grant's Pass' in-development Foundry Village (below right; both created by non-profit Rogue Retreat). 

<Medford_Hope-Village1.jpg>  <Grants-Pass_Foundry-Village-plan.jpg>  

Portland is in a different federal court District than Medford/Grants Pass, so the Blake ruling is not technically binding, ie having mandatory authority, but it has persuasive authority as a ruling of a parallel jurisdiction. Also, arguably, especially so since it was written directly to clarify a ruling of the 9th Circuit, which does have binding/mandatory authority in Portland. 

More info:

Tim McCormick
Editor at HousingWiki, Organizer at Village Collaborative
Portland, Oregon 

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