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On September 28, the U.S. Ninth Circuit Court of Appeals affirmed Johnson v. Grants Pass, a class action matter addressing public camping. The court upheld the U.S. District Court’s prior ruling that persons experiencing homelessness are entitled to take necessary minimal measures to keep themselves warm and dry while sleeping outside. The Ninth Circuit opined that cities violate the Eighth Amendment if they punish a person for the mere act of sleeping outside, or for sleeping in their vehicles at night when there is no other place in the city for them to go.
As a result of this ruling, this decision expands the application of Martin v. Boise —the pivotal case impacting cities’ ability to regulate public camping. The court noted that the decision, in this case, is narrow and that “it is ‘unconstitutional to [punish] simply sleeping somewhere in public if one has nowhere else to do so.’” It goes on to note that class actions in these types of cases are permissible. This opinion, in most respects, affirmed what was already known from both the previous Martin and Johnson cases. However, it failed to provide much-anticipated clarification on several issues, such as what constitutes “necessary minimal measures” to keep warm and dry. The City has requested an En Banc at the Ninth Circuit Court, another step in the lawsuit process before it may be appealed to the United States Supreme Court.
In 1989, the U.S. Supreme Court, in DeShaney v. Winnebago County. Department of Soc. Servs., interpreted the Fourteenth Amendment to the U.S. Constitution to impose a duty upon the government to act when the government itself has created dangerous conditions – this interpretation created the legal principle known as State Created Danger. The 9th Circuit has interpreted the State Created Danger doctrine to mean that a governmental entity has a duty to act when the government actor “affirmatively places the plaintiff in danger by acting with ‘deliberate indifference’ to a ‘known or obvious danger.’”
The State Created Danger principle has three elements. First, the government’s own actions must have created or exposed a person to an actual, particularized danger that the person would not have otherwise faced. Second, the danger must have been one that is known or obvious. Third, the government must act with deliberate indifference to the danger.
Municipal attorneys are closely reviewing the State Created Danger principle as it relates to the use of public spaces by persons experiencing homelessness. Cities choosing to respond to the homeless crisis by creating managed homeless camps, where unhoused persons can find shelter and services, may open the door to State Created Danger based claims of wrongdoing (e.g., failure to protect from violence, overdoses, etc. within the government sanctioned camp and/or designated areas).
Sanctioning or designating a camp puts additional liability and welfare responsibilities on the municipality. When a government sanctioned camp/area is created, cities should strive to create an environment that would not reasonably expose a person living in the camp to a known or obvious danger they would not have otherwise faced. And if there is a danger to living in the camp, a city should not act with deliberate indifference to any known danger in allowing persons to live in the camp.
The injunction allows people to rest in a park, however it does not allow people to break the law/do illegal activities such as littering and other infractions. The City does regular patrols of the parks to help encourage proper park usage which includes notices on campsites left up after the resting period which then triggers the 72-hour state notice requirement.
Please continue to report any illegal activity to the Police Department. You can report illegal activity if it is an emergency by dialing 911. If it is a non-emergency, please call 541-450-6260. You can also report activity online at: https://www.grantspassoregon.gov/556/Police-Online-Reporting
State Law: Requires 72-hour notice before a campsite/vehicle utilized for resting can be removed.
House Bill 3115: Any city or county law that regulates the acts of sitting, lying, sleeping or keeping warm and dry outside on public property must be “objectively reasonable” based on the totality of the circumstances as applied to all stakeholders, including persons experiencing homelessness.
House Bill 3124:
Martin vs. Boise is a 2018 decision by the U.S. Court of Appeals for the Ninth Circuit in response to a 2009 lawsuit by six homeless plaintiffs against the city of Boise, Idaho regarding the city’s anti-camping ordinance. The ruling held that cities cannot enforce anti-camping ordinances if they do not have enough homeless shelter beds available for their homeless population. It did not necessarily mean a city cannot enforce any restrictions on camping in public spaces.
There are four things that municipal attorneys feel confident in saying regarding Martin:
1. Cities cannot criminally punish a person who is experiencing homelessness from sitting, sleeping, or lying on public property when that person has no place else to go.
2. Cities are not required to build or provide shelters for persons experiencing homelessness.
3. Cities can continue to impose reasonable time, place, and manner restrictions – even on people who are homeless, have a place to find shelter, and don’t wish to use that shelter.
4. Limitation to city only – indicates regional cooperative not permitted. For Cities to get credit for services, they must be in the jurisdiction of the municipality.
When it comes to regulating city public spaces, we have three areas of the law we need to consider: federal law, state law, and local law – all three work together – and all three must work together to find solutions to the problems we are addressing.
Reinhart Volunteer Park is not covered by the federal injunction, and camping there is prohibited.