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Grants Pass has joined Boise in eliciting a precedent-setting court ruling that could alter how cities nationwide cite and fine people living outside.
A federal judge decided on July 22 that the Southern Oregon city of 37,500 violated its homeless residents’ Eighth Amendment rights by excluding them from parks without due process and citing them for sleeping outside. The ruling builds on 2018′s landmark 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.
Grants Pass City Attorney Mark Bartholomew said the city plans to appeal the decision.
Last year, the U.S. Supreme Court refused to hear the Martin case, forcing cities around the country to rethink how their policies and law enforcement officials deal with growing homeless populations.
In Grants Pass, homeless people have been showing up for years to the Oregon Law Center office with complaints that their ability to rest was made impossible by local ordinances.
Debra Blake was one of them. She lost her job and then her housing about 10 years ago and has been homeless in Grants Pass since. At 7:30 a.m. Sept. 11, 2019, Blake was lying in her sleeping bag in Riverside Park when she was cited for illegal camping and prohibited conduct. Later that morning, the same officer gave her a ticket for criminal trespass on city property.
Blake wasn’t arrested, but the two tickets still came with fines that reached $885. She was also excluded from the parks.
She appealed and two weeks later won, but she received no explanation why.
Blake owes Grants Pass $5,000 in stacked up fines and fees related to being homeless.
She is one of several people who joined the case, many with similar debts.
U.S. Magistrate Judge Mark D. Clarke wrote a stinging rebuke of the way Grants Pass fines people living outside.
“Let us not forget that homeless individuals are citizens just as much as those fortunate enough to have a secure living space,” he said.
Clarke’s opinion will likely have ramifications far beyond Grants Pass.
Many cities and counties were shaken by the Boise example, which has been widely interpreted as saying that it is unconstitutional to arrest people for what are called “sit-lie laws” — resting and sleeping in public — if the jurisdiction does not provide adequate shelter or affordable housing.
Clarke’s ruling extends that prohibition to the fines and fees that make being homeless difficult.
Many places have ordinances similar to Grants Pass’s with fees for living outside.
Clarke pointed out in his opinion that such citations often require a court appearance, which homeless people often either don’t know about because they don’t have an address to receive mail from the court, or do not have the means or will to show up for.
That results in failure to appear warrants that end in arrest the next time the person comes into contact with law enforcement — an inevitability for many homeless people.
“Quality of life laws, even civil citations, contribute to a cycle of incarceration and recidivism,” Clarke wrote.
His ruling also left the door open for more court challenges to cities’ treatment of unhoused individuals.
The Boise case was based in part on the Eighth Amendment — that arresting homeless people for simply being homeless is cruel and unusual punishment.
But Clarke went farther in the Grants Pass case, saying that the city’s policies amount to excessive fines for doing something that all humans must do — sleeping, staying dry, staying warm, sitting down — only applied to a small group of humans.
“Those activities are just unavoidable and tied up in the status of being unhoused,” said Ed Johnson, head of the Oregon Law Center.
Johnson said that the decision still leaves room for cities and counties to regulate how and where people camp.
“I hope what cities take from it they have a wide range of tools at their disposal, but the tools are not punishing people in their community who have no choice but to be living outside,” Johnson said.
The National Law Center on Homelessness and Poverty joined the Oregon Law Center in taking Grants Pass to court. Tristia Bauman, senior attorney, said she hopes the Boise and Grants Pass cases push cities to rethink how they invest in homelessness now that both criminal and civil punishments can be unconstitutional, if broadly applied.
“The nature of the punishment is somewhat inconsequential,” Bauman said. “At the time of enforcement, the message is the same: You are engaged in some kind of law violation because you are living in public because you have no option but to do so.”
Grants Pass created its system of fines as part of a strategy to make it difficult to be homeless there. According to court documents, top city officials hoped that the stringent rules would encourage people to leave the city, even if they grew up there.
About 70% to 80% of homeless people in Grants Pass are from the area, according to court documents.
However, Clarke said that a jurisdiction doesn’t have to intentionally dissuade homeless people from staying there to violate the Eighth Amendment.
“Arresting the homeless is almost never an adequate solution because, apart from the constitutional impediments, it is expensive, not rehabilitating, often a waste of limited public resources
, and does nothing to serve those homeless individuals who suffer from mental illness and substance abuse addiction,” Clarke said.