Case: Duncan v. City of Portland

In 2021, the Oregon Legislature passed House Bill 3115, which required that any city or county in Oregon that “regulates the acts of sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to the public must be objectively reasonable as to time, place and manner with regard to persons experiencing homelessness.” Although House Bill 3115 was passed on July 1, 2021, it was not operative until July 1, 2023, when it became Oregon Revised Statute (“ORS”) 195.530.
 
This matter concerned a challenge to the amendments to Portland City Code 14A.50.020 (the “Ordinance”), which Portland City Council passed in July 2023. The Ordinance prohibited unhoused people from living or resting in many public spaces from 8:00 a.m. to 8:00 p.m. each day. The penalty for violating the Ordinance was a $100 fine and 30 days’ imprisonment for each violation.

On September 29, 2023, five involuntarily homeless Portlanders filed this lawsuit in the Circuit Court of the State of Oregon for the County of Multnomah against the City of Portland. The plaintiffs brought this action on behalf of themselves and a punitive class under ORS 195.530 and Article 1, Section 16 of the Oregon Constitution. They sought to represent a class of “all involuntarily homeless people living within the City of Portland.” Represented by the non-profit organization, Oregon Law Center, the plaintiffs sought declaratory and injunctive relief to enjoin the enforcement of the Ordinance against themselves and other involuntarily homeless Portlanders. The plaintiffs also sought costs and reasonable attorneys’ fees.

The complaint alleged that while Portland called the Ordinance a “daytime camping ban,” it was in actuality a “nighttime camping ban” as well. The Ordinance effectively banned universal, unavoidable human survival conduct, twenty-four hours a day, in most or all of Portland’s public land because the Ordinance was sweeping in scope, cruel, and impossible to understand or comply with. Thus, enforcement of the Ordinance would cause irreparable harm to the thousands of unhoused Portlanders as they attempted to comply with the law under threat of arrest and jail time.
 
In count one, the plaintiffs asserted that Portland violated ORS 195.530 by enacting the Ordinance, which imposed objectively unreasonable time, place, and definitional limitations on the plaintiffs’ unavoidable life-sustaining activities, such as lying down, sleeping, and staying warm and dry on Portland’s public land. The penalties for violations of the Ordinance were also alleged to be objectively unreasonable due to their impact on involuntarily unhoused Portlanders, criminalizing the very activities that ORS 195.530 sought to protect.
 
In count two, the plaintiffs further alleged that the punishments in the Ordinance violated Article I, Section 16, of the Oregon Constitution because 30 days’ imprisonment and a $100 fine for engaging in unavoidable acts of survival was a cruel and unusual punishment and was disproportionate to the nature of the offense committed. They argued that any monetary fine is excessive when it punishes status or engaging in unavoidable acts of survival.

The case was assigned to Judges Judith Matarazzo, Rima Ghandour, and Thomas Ryan.

Along with the complaint, the plaintiffs also filed a motion for a temporary restraining order and an order to show cause why a preliminary injunction should not be issued. That same day, Judge Matarazzo denied without explanation the plaintiffs’ motion.

On November 2, 2023, Judge Ghandour was appointed to hear the pretrial motions in this case. The next day, the plaintiffs filed a motion for a preliminary injunction that would enjoin enforcement of the Ordinance during the litigation.

On November 9, 2023, the court heard oral arguments from the parties, and Judge Ghandour granted the plaintiffs’ motion for a preliminary injunction, stating the order would remain in effect during the pendency of the litigation, or until further ordered by the court. Judge Ghandour summarily concluded that the plaintiffs had made a sufficient showing to warrant preservation of the status quo.

On November 13, 2023, Portland filed an expedited motion to conform the court’s order with the requirements of Oregon Rule of Civil Procedure (“ORCP”) 79D. Portland argued the court’s order did not provide sufficient information to understand the court’s reasoning or to evaluate whether the court made a fundamental legal error in reaching its decision. In this motion, Portland asked that the court set forth its reasons for granting the preliminary injunction. In response to this motion, the plaintiffs indicated that while they believed the court provided sufficient reasons for its issuance, they did not object if the court chose to issue an amended opinion adding detail to those reasons.

As of February 6, 2024, this case was ongoing, and the court had not responded to Portland’s motion to conform its order with the requirements of ORCP 79D.