Re: opinion in Blake v Grants Pass unhoused camping case, and implications for Portland
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To: PDX Shelter Forum (pdxshelterforum.org)
Bcc: The Oregonian - Public Editor; Maxine Bernstein (Federal courts & law-enforcement reporter); Molly Harbarger (reporter).
There was article today from The Oregonian / Molly Harbarger on the Blake v City of Grants Pass ruling (three weeks after we and Street Roots covered it): "Cities cannot fine homeless people for living outside, U.S. judge rules in Grants Pass case." 11 August 2020.
The article, & headline & tweet, I think crucially misrepresent this & the earlier Martin v Boise ruling; also the article plainly gives the view of and quotes sources from only one side in the case, and it provides no links to public versions of the actual rulings. Finally in my opinion the article misses perhaps the most significant part of ruling: an asserted constitutional right to "necessary minimal measures" to self-shelter. This note discusses issues with the article, and more importantly, how a more accurate interpretation and the Blake ruling itself support key ideas of PDX Shelter Forum vs current practices. What The Oregonian gets wrong:
Headline and tweet text: "Cities cannot fine homeless people for living outside, U.S. judge rules in Grants Pass case".
or in article: "Martin v. City of Boise case that said cities cannot make it illegal to sleep or rest outside without providing people with sufficient indoor alternatives."
Neither Martin v Boise (1st below) nor Blake v GrantsPass (2nd below) say cities can't ban or fine unhoused people for living outside, or without providing indoor alternatives. Both say cities can limit where, i.e. can ban in places if alternative space is available. Space does not have to be shelter or affordable housing, it just needs to be some alternative place the person could be, so that sleeping/camping in the banned area is not reasonably unavoidable. This follows logically from the 8th Amendment basis of argument, that only criminalization of unavoidable conduct or status is unconstitutional. Here's from Martin v Boise majority opinion:
or, as restated in Blake v Grants Pass ruling:
Harbarger is, consciously or not, promoting an interpretation that is offered publicly by many homelessness advocacy groups, particularly the National Homelessness Law Center (NHLC, until recently the NLCHP) but which doesn't stand up to close legal scrutiny, as even the founder of the NLCHP, Maria Foscarinis, admitted. Or see analysis in "Hiding Homelessness" by Sara Rankin of Seattle University's Homeless Rights Advocacy Project, an expert on this topic.
Cities all over the country, having studied Martin v Boise, have concluded they are not enjoined against all arresting, banning, or fining people for sleeping/camping in public, because the rulings affirm various admissible reasons to do so, and/or because the city's ordinances do not apply to all public areas.
Why does misinterpretation of this matter? Because for years it has, I'd say, widely encouraged homelessness advocates in a strategy of opposing all prohibition or removal of public camps, with the idea that there is a good constitutional argument for this. That goal, however, seems to be unacceptable to most local governments and, I'd say, many publics, and it doesn't consider local governments' state-granted "police power", responsibility, and liability to ensure all residents' "safety and welfare" (including the unhoused's; as the Blake v Grants Pass ruling notes). It's at odds with commonplace and commonsensical practices of regulating location and manner of activities in public space (where and what you can drive, for example). It's been rejected by a long line of rulings such as Martin and Blake. It's led to an ongoing impasse where advocacy is focused on a goal that most local governments are unlikely to accept and don't see a legal obligation to.
I would suggest, rather than this costly and inhumane impasse which leaves so many unsheltered and criminalized, we'd be better off building on the logic of Martin, Blake, etc rulings, and developing policies to assure all residents places to live with at least "minimum core" dwelling rights. This I believe is the fundamental point of PDX Shelter Forum: that, rather than just gradually adding costly, regulated-affordable new housing to serve a fraction of need, we should and fairly easily could, far sooner, also "raise the floor" for and bring the neediest up off the streets, achieve minimum living standards for all, to start with.
This is an alternative and pragmatic form of "right to housing"-based advocacy, seeking progress via achievable "minimum core" rights for all rather than just an aspirational rights argument, and asserting positive rights rather than just "right to remain" defensive rights.
This angle is where the I think Blake v Grants Pass ruling may be most significant, because it extends Martin to assert (on constitutional grounds) a right to "taking necessary minimal measures" to stay warm, dry, and (I'd say implicitly) safe when self-sheltering by necessity in public:
I think the persuasive precedent of this adjacent Federal District Court suggests an approach for Portland: as part of a new "right to dwell" regime of citywide safe dwelling areas / villages, define minimal dwelling measures and rights assured to even the neediest. We can well afford to extend such basic human rights to all among us, and we incur deep civic, financial, and ethical damages now by failing to do so.
On Fri, Jul 24, 2020 at 3:16 PM Houseless First via groups.io <email@example.com> wrote: