A federal appeals court has revived a homeless man’s case challenging Portland’s anti-camping ordinance as a violation of the Eighth Amendment against cruel and unusual punishment.
Michael O’Callaghan filed a lawsuit in 2012 after getting his plywood, tarps and other belongings confiscated multiple times. He contends the ordinance banning camping on public property is unconstitutional as it applies to “thousands of Oregonians who have no place to sleep.”
The 9th U.S. Circuit Court of Appeals this month sent O’Callaghan’s case back to U.S. District Court for consideration. It had been dismissed in 2015.
In its decision, the appeals court cited its recent ruling in a case out of Boise that found such prohibitions may be unconstitutional when enforced against homeless people who have no access to an alternative shelter.
“It’s great,” O’Callaghan, 74, said Tuesday, speaking by phone to The Oregonian/OregonLive from his shed beneath the Ross Island Bridge, where he now lives. “It means the court will take a serious look at this.”
City attorney Tracey Reeve said she couldn’t comment about the ongoing litigation.
O’Callaghan’s lawsuit stemmed from a 2011 encounter he had with a park ranger and Portland police. He had put up a temporary structure using plywood and tarps at Southeast Ivan Street and Fourth Avenue. On Feb. 3, 2011, the city posted a notice of illegal camping at the site when O’Callaghan was present. A police officer also told him then that the makeshift shelter would be removed in five days and urged him to take his possessions before then.
As promised, a city cleanup crew five days later took down the plywood and tarps as O’Callaghan filmed them.
The removal followed O’Callaghan’s Jan. 26, 2011, arrest on suspicion of second-degree criminal mischief and the city’s issuance of a 180-day park exclusion after police officers and a park ranger found him digging a large cave with a pickax into a public embankment off the Springwater Trail. The cave was about 4 feet wide, 4 feet high and 8 feet deep, reinforced by wooden planks, the city said.
U.S. District Judge Anna J. Brown dismissed O’Callaghan’s lawsuit, distinguishing Portland’s ordinance from other cities’ laws. Brown said it prohibited camping, not merely sleeping. She found that the city ordinance, as written, didn’t criminalize status but conduct and was constitutional. She also found there was a rational and legitimate government interest to ensure public safety and sanitation.
From Michael O’Callaghan’s handwritten appeal to the 9th U.S. Circuit Court of AppealsCourt document
O’Callaghan wrote an appeal on 25 pages of lined paper while sitting at the Ford, Food & Drink coffee shop in Southeast Portland. He represented himself when he filed the appeal two years ago, but the appellate court soon appointed him lawyers.
“Authorities destroyed the plaintiff’s home,” he wrote. “Removed it with no recovery. Nor did any law authorize destruction and removal of private property. No citation. No due process. Clear.”
He and his lawyer argued that the city’s anti-camping ordinance essentially bans sleeping outside and that the government can’t criminalize conduct based on a person’s “status or personal condition.”
“Enforcing such a ban in Portland, at a time when the city has nowhere near the space to shelter all of the homeless, is unconstitutional,” wrote Washington, D.C.-based lawyer Matthew Waring. “Everyone must sleep, and the only place where Portland’s homeless can sleep is on public property — where the ordinance makes their sleeping criminal.”
City attorneys countered that the ordinance prohibiting camping on public property or a public right-of-way is directed at specific conduct done with a specific intention– that is, camping to establish a temporary place to live.
“It does not prohibit persons from sleeping on public property or public rights-of-way so long as they do not intend to ‘dwell,’ ‘reside’ or ‘make their home’ in those places,” Deputy City Attorney Dennis Vannier wrote.
The city also pointed out that O’Callaghan was never charged with or convicted of violating the ordinance and argued that the Eighth Amendment applies only to criminal convictions. O’Callaghan, they also said, isn’t “involuntarily homeless – quite the reverse,” noting he has income from two trust funds.
But O’Callaghan’s lawyer replied that Portland’s ordinance defines camping as temporarily living in a place “with any bedding, sleeping bag, or other sleeping matter,” suggesting that sleeping outside with a pillow and blanket would be prohibited.
The 9th Circuit ordered a U.S. District judge to decide whether the city ordinance, as applied to homeless people, is constitutional. It didn’t overturn O’Callaghan’s conviction for second-degree criminal mischief.
O’Callaghan said he’s been living under the Ross Island Bridge for the last four months. His shed has two shelves inside, a brown tarp over it and a door that locks.
He described himself as “voluntarily homeless,” saying he receives $800 a month in Social Security income and doesn’t want to spend a big chunk of it on rent. The divorced father of four children lived in Alaska for 35 years before returning to Portland, his hometown, about 12 years ago, he said. He had worked in logging, landscaping and home construction.
He doesn’t want to sleep in a shelter. “Oh God, are you kidding me? With all those people coughing and hacking,” he said. “Would you want to sleep in a situation like that?”
Earlier this month, O’Callaghan filed a new legal complaint against the city in federal court, arguing that the city has seized his property without due process.
— Maxine Bernstein