Homeless Man Might Get Second Chance to Tackle City Ordinance

PORTLAND, Ore. (CN) – A homeless man who represented himself in a lawsuit claiming a city camping ban criminalized homelessness could get a second chance at his case after garnering sympathy from a panel of Ninth Circuit judges.

Michael O’Callaghan sued the city of Portland in February 2012, claiming police harassed him and continually forced him to move his temporary home based on a law prohibiting camping on public property. O’Callaghan, 73, argued on his own behalf that the city law effectively made it illegal to be homeless.

According to the most recent numbers documenting Portland’s homeless population, 4,177 people were homeless in Multhomah County as of Feb. 22, 2017. Of those, 1,668 were sleeping on the streets.

When O’Callaghan filed his appeal to the Ninth Circuit, former Mayor Charlie Hales was allowing homeless camping in certain parts of the city. But last summer, Hales announced an end to his “safe sleep” policy and directed police to level a major homeless camp where hundreds were living along southeast Portland’s Springwater Corridor.

Current Mayor Ted Wheeler has said the city must “acknowledge that at least several hundred people will be living outside for some time.” Wheeler’s homelessness policy calls for camp sweeps to be “limited to areas experiencing dangerous criminal activity.”

U.S. District Judge Anna J. Brown dismissed O’Callaghan’s pro se lawsuit in November 2015, finding that the anti-camping ordinance was constitutional, and did not violate O’Callaghan’s rights under the Eighth Amendment to be free from cruel and unusual punishment.

But Brown’s dismissal did not address exactly what O’Callaghan was arguing, according to attorney Matthew Waring, who is representing O’Callaghan on appeal.

Waring conceded in oral arguments on Wednesday that the law is probably constitutional in general – but that it is still illegal when applied to the homeless.

“It’s probably not unconstitutional when applied to someone with a home, only when used to criminalize people who have nowhere else to go,” Waring told a three-judge panel consisting of U.S. Circuit Judges Marsha S. Berzon, Paul J. Watford and John B. Owens.

Dennis Vannier argued for the city against reviving the case, even though he admitted that the record was silent on the specifics of the city’s enforcement of the law.

Waring claimed that silence invalidated Brown’s ruling.

“Don’t you all want a final yes or no on this ordinance from the district court?” Watford asked Vannier.

“Yes,” Vannier conceded. “But this isn’t the plaintiff to do it.”

Vannier claimed O’Callaghan wasn’t even homeless, pointing to a mailing address he had filed with the court.

Watford waved that argument away.

“That’s just a place where he got legal mail, isn’t it?” Watford asked. “We have no information about who lives there or what their relationship to Mr. O’Callaghan might be.”

Waring said the panel should send the case back to the federal court and give Mr. O’Callaghan another shot at arguing on behalf of a class of the homeless.

“Mr. O’Callaghan needs, in effect, a do-over,” Waring told the court. “Hopefully with the benefit of counsel to put in a complaint that raises this issue properly. And, of course, gather more evidence about how the city enforces this ordinance. All he really has to go on are his experiences at this point.”

Judge Watford said Brown had “clearly erred” in analyzing O’Callaghan’s argument as a challenge to the constitutionality of the law in general, as opposed to how it applies to one specific group of people.

“He tried to raise the issue of the application of the ordinance to the homeless,” Watford said. “He’s saying, ‘look, I’m not here to litigate the application of the ordinance to one individual, namely me. I’m here on behalf of a class of people who have nowhere else to live.’”

Watford said that distinction was crucial.

“Obviously, if somebody who has a home in Portland decides they want to set up a tent in the middle of the sidewalk, there’s no Eighth Amendment violation,” Watford said. “There couldn’t even arguably be one. But as applied to people who have nowhere else to sleep, it’s a different story. And he was limiting his challenge to that smaller group of people.”

Watford seemed inclined to send the case back to the federal court.

“The district court construed it as being applied to the whole world and obviously if that’s the motion he was bringing, it was properly denied,” Watford said. “But I don’t think that’s what he was doing.”


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