City Council Strikes Down Gonzalez’s ‘Inhumane’ Suggestion for Blanket Ban on Public Camping

While no decision has been made on Mayor Ted Wheeler’s proposed ordinance, the council rejected a more punitive alternative Commissioner Rene Gonzalez presented last week – one that, as originally drafted, would have allowed for jail time and fines against the homeless.

The vote capped a series of procedural missteps by the freshman commissioner. During public comment prior to the vote, some took Gonzalez to task for filing a substantially changed draft of his proposal just two hours before the council meeting and public comment. During council discussion, Mayor Ted Wheeler expressed surprise at the updated document and asked for a printed copy.

“Failing to give members of the public or even council itself the necessary time to review this proposal undermines transparency and accountability, and does a disservice to council members and Portlanders,” Amanda Lamb, a civil rights attorney with the Oregon Justice Resource Center, said.

Gonzalez had put his solution to public camping in competition with Wheeler’s. Gonzalez’s initial draft would have punished violators with six months in jail or a $500 fine, pending a Supreme Court decision expected later this summer. The last-minute revision to his proposal did away with jail time but increased the potential fine to $1,000.

Gonzalez’s proposed ordinance would have also given the mayor and, starting next year, the city administrator complete oversight of camping bans, bypassing councilmembers.

Gonzalez is running for mayor, as are his council colleagues Mingus Mapps and Carmen Rubio.

A Focus on SCOTUS?

Portland’s previous camping ban was not in compliance with House Bill 3115, which was passed last year to restrict city enforcement of how the homeless exist in public spaces. The city council put forth amendments to the ban last summer, but a county circuit court judge issued a temporary injunction against the new daytime camping ban when it was challenged by the Oregon Law Center.

Meanwhile, the U.S. Supreme Court is considering the city of Grants Pass’s challenge to state camping ban restrictions. Gonzalez’s proposal was structured in such a way as to allow for harsher penalties should the court side with Grants Pass.

“Encampments are bringing too much chaos to the city of Portland, too much violence, too much self-destruction, too much harm to our natural areas,” Gonzalez said Wednesday. “A number of forces have eroded our ability to protect the city with this code: lawsuits, including locally and across the 9th Circuit, including Martin vs. Boise… state legislation, specifically HB 3115, but also, at times, a lack of political commitment to address encampments.”

He accused Wheeler’s office of having “no appetite for collaboration or refinement” when drafting the ordinance currently under injunction. In outlining his objections to Wheeler’s current proposal, Gonzalez took issue with some of the points critics had said softened Wheeler’s proposal by comparison.

In Wheeler’s proposed ordinance, camping in public spaces is prohibited for those who already have “reasonable shelter” or who have declined an offer for reasonable shelter. The ordinance encourages diversion tactics in lieu of criminal charges, although it does allow for punishment of up to seven days in jail or a fine of up to $100.

“They’re aspects that make the code more difficult to enforce, including a hard-to-prove knowing requirement and the diversion requirements that will make enforcement more difficult,” Gonzalez said, objecting to “a requirement that we ascertain availability of shelter before enforcing” camping bans.

Racial Implications

A major criticism of camping bans is that they punish houseless individuals who have no other place to go, at a time when there are not enough shelter beds to accommodate those currently living on the street.

Sonja Good Stefani, director of the community law division at Metropolitan Public Defenders Office, explained how her team works with clients who have prior evictions, convictions or debt that prevents them from obtaining housing.

“Adding more debt and more convictions to our clients’ records will only work to further delay and prevent them from getting housed,” Stefani said. “Low-income families in communities of color are disproportionately represented in our criminal justice system, our eviction system, our debt collection system. This ordinance will only increase those disparities.”

“It is impossible to enforce a camping ban without being anti-Black,” Portland resident Marcie Cadell told the council.

“The criminalization of the unhoused largely started after the Emancipation Proclamation, with this nation’s first anti-trespassing laws being passed through Black codes and Jim Crow. These laws were not only focused on excluding Black people from society – much like Oregon did up until 1923 – but also continuing the institution of chattel slavery. The 13th amendment permitted slavery as a punishment for criminal behavior – so began the effort to make it illegal for us to exist.”

She continued, “Your choice to enforce yet another camping ban tells us that you aim to maintain these ethics. You tell us that our productivity is more valuable than our humanity, that you don’t aim to put people in homes or to combat poverty, that the inability to perform in this system designed to exclude and disable many of us is a moral failing.”

Lawyers Weigh In

Alicia LeDuc Montgomery, speaking on behalf of ACLU-Oregon, questioned Gonzalez’s approach of planning around existing law.

“As this commission is aware, right now Martin v. Boise and the Johnson v. Grants Pass rulings remain good law,” she said. “(The U.S. Supreme Court) has not overruled them, so passing these ordinances would be contrary to existing precedent. Moreover, the excessive fine aspect is not before the Supreme Court…so regardless of the ruling, this $1,000 fine would be excessive and unconstitutional.”

Montgomery added the ACLU-Oregon believed that Gonzalez’s proposed ordinance was “being put forth in what we believe is potentially bad faith, noting that the commissioners knew there was Supreme Court oral argument this week on this very issue, and that many of Oregon’s top experts and litigators on the subject were in Washington DC.” She also questioned the last-minute filing of an updated amendment the mayor hadn’t had time to read.

Juan Chavez, director of the Civil Rights Project at the Oregon Justice Resource Center, argued that neither Wheeler’s plan nor Gonzalez’s “are acceptable under federal law or HB 3115, as both (plans) are premised on the criminalization of homelessness and survival in a city without adequate shelter.”

“Based on the oral arguments this week at the Supreme Court, there is reason to believe you won’t be getting your wish to punish homeless people the way that you want,” Chavez said, directing his observation at Gonzalez.

Chavez added his opinion that many justices appeared to acknowledge in principle that the 8th amendment, which prohibits excessive bail and cruel and unusual punishment, applied in Johnson vs. Grants Pass.

“You need to stop hiding behind the idea that these are vague issues, or that the law doesn’t provide guidance,” Chavez said.

“The law does provide such guidance, you just don’t want to listen to the fact that it prescribes that you need to listen to the people experiencing homelessness.”

A Fractured Process?

Commissioner Rubio had previously said in a statement to OPB that Gonzalez’s proposal “criminalizes homelessness.” She proposed Wheeler’s draft be amended to emphasize the importance of transparency in enforcing any bans, calling for “appropriate data collection and reporting” to ensure bans not be disproportionately applied. In addition, she called for quarterly data updates from the Portland Police Bureau that would include demographic information about any arrests made under a camping ban.

During the vote, Rubio took exception to Gonzalez’s earlier statement that he had worked with all commissioners for feedback on his proposal.

“I just want to be clear that my office was not engaged with your office until the last couple days, and in fact we learned outside from the city and other sources first about your amendment,” Rubio said.

“In fact, when my staff tried to include herself, she was uninvited twice to two meetings that were key that she tried to attend. Internal communication does make a difference in feeling brought along on a policy, and to give some context, we did have several months of engagement with members of the mayor’s team about what we cared about, and that ultimately informed the proposal that we got when everybody else did.”

“I think the vehicles that you have developed are imperfect,” Mapps said.

“One of the things you’re trying to do with your amendments is send a message to the state legislature saying state law is not helping us locally solve our homelessness problem. I think that is objectively true; however, I am not convinced that our time, place and manner ordinance is the correct vehicle for sending that message to our state lawmakers, and it’s one of the reasons why I can’t support you on this one.”“We must always lead with compassion and offer services and treatment first,” Commissioner Dan Ryan said in a statement explaining his support of Gonzalez’s proposal. “And we need policy in place for those who continue to refuse services…We need to act now with compassion, collaboration and common sense. For the families with loved ones on the streets: I see you, I am one of you, you are not alone. We want government services to work with you and for you. For the families that don’t have access to the public right of way because you experienced unsafe conditions: I see you and I ask for your compassion as we do what is right and just.”

Wheeler, who joined Mapps and Rubio in voting against the proposal, questioned and criticized Gonzalez’s proposal to give full oversight to only the mayor and their designee.

“From a clarity perspective, it seems like you would want this to reside with the council, so the council’s held accountable,” Wheeler said, “not a designee that we may or may not know who they are.”

To read Mayor Wheeler’s city camping ban proposal, visit portland.gov/council/documents/ordinance/320-updated-manner-regulations.