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

Tim McCormick

To: PDX Shelter Forum ( 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". 
Screen Shot 2020-08-11 at 6.54.55 PM.png 
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."

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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:

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or, as restated in Blake v Grants Pass ruling: 

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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: 

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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. 

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

On Fri, Jul 24, 2020 at 3:16 PM Houseless First via <> wrote:
at Village Collaborative, longtime homelessness activist Mike O'Callaghan (aka Mayor Mike) noted another case challenging Portland's camping ban: his own one O'Callaghan v City of Portland, originally filed in 2012.

It was eventually dismissed in 2018 but along the way won a 9th Circuit Court of Appeals ruling upholding his claim to appeal on 8th Amendment grounds if the case were widened to represent unhoused Portlanders generally rather than just him.

Mike filed suit after officials repeatedly dismantled and confiscated his self-built dwellings on public land underneath the Ross Island Bridge. 


more info about this case: 

On Fri, Jul 24, 2020 at 9:34 AM Keliferous Goodwoman <kellygoodman65@...> wrote:
This is hopeful news no?, thanks for the info!

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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