The recent Supreme Court decision City of Grants Pass v. Johnson has dramatically shifted the landscape of public camping regulation in Western states, opening the door for cities across the West to enforce camping bans on public property.
Oregon Public Camping Law After Grants Pass v. Johnson
Despite opening the door for stricter regulation, Oregon cities’ public camping policies may experience little change themselves—at least for the time being. While the Grants Pass case focused on a constitutional challenge to public camping bans, an Oregon law still poses a limit to cities’ ability to enforce public camping bans.
Effective since July 2023, ORS 195.530(2) states, “Any city or county law 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 regards to persons experiencing homelessness.” ORS 195.530 also allows unhoused individuals to argue as an affirmative defense that a local public camping ordinance is not objectively reasonable.
ORS 195.530 codifies in state law, at least to some extent, prior Federal precedent, thus potentially lessening the impact of Grants Pass in Oregon. The Supreme Court said as much in the Grants Pass opinion:
“Since this litigation began, for example, Oregon itself has adopted a law specifically addressing how far its municipalities may go in regulating public camping. See, e.g., Ore. Rev. Stat. § 195.530(2) (2023). For that matter, nothing in today’s decision prevents States, cities, and counties from going a step further and declining to criminalize public camping altogether.”[1]
What is “Objectively Reasonable” Under ORS 195.530? Time Will Tell…
What constitutes an “objectively reasonable” camping ordinance under ORS 195.530 has not yet been fully defined by Oregon courts. There are no appellate court rulings on this statute so far. However, one recent Oregon trial court case might provide a small glimpse into how courts will approach ORS 195.530. The Multnomah County circuit court case Duncan v. City of Portland concerned a Portland city ordinance passed in July 2023, which regulated the time, place and manner of camping on public spaces. Among other regulations, the ordinance banned camping in many Portland public spaces between the hours of 8:00 a.m. to 8:00 p.m. Five unhoused individuals brought a lawsuit against the City of Portland, seeking a declaration that the ordinance violated ORS 195.530 and Article 1, Section 16 of the Oregon Constitution (Oregon’s cruel and unusual punishment clause).[2] In addition to declaratory relief, the plaintiffs also sought an injunction prohibiting Portland from enforcing the ordinance.
Finding that the plaintiffs “made a sufficient showing to warrant preservation of the status quo,” the court granted the plaintiffs’ motion for a preliminary injunction and prohibited Portland from enforcing the public camping ordinance.[3] After continued litigation, Portland later repealed the challenged ordinance altogether and replaced it with a less-stringent public camping policy— the lawsuit was dismissed by the court with consent of both parties in July 2024.
While the Duncan case offers little substantive interpretation of Oregon state public camping policy, it does offer important takeaways for stakeholders across the state. Advocacy groups, local governments, and business owners should know that the Supreme Court’s Grants Pass decision does not automatically allow Oregon cities to enforce sweeping public camping bans. Any such ordinances passed by local governments would likely be challenged by advocacy groups under ORS 195.530 and the Oregon Constitution, and like Duncan, local governments could be prohibited from enforcing all or part of their ordinances during litigation. The final outcome of any such litigation is highly uncertain.
Post Grants Pass, it is likely that groups on both sides of the issue will seek changes from the Oregon legislature. Some may argue for additional state law protections for those camping on public property, now that federal protections have been weakened. Others may argue that it is time to repeal or modify ORS 195.530 and give Oregon cities more flexibility in creating their own policies. While Grants Pass v. Johnson offers expanded enforcement options for most cities across the Ninth Circuit, ORS 195.530 is poised to temper the ruling’s impact for Oregon cities—the extent to which only time will tell.
[1] City of Grants Pass, Oregon v. Johnson, 144 S. Ct. 2202, 2220 (2024).
[2] Complaint, Duncan v. City of Portland, No. 23CV39824 (Or. Cir. Ct. Sep. 29, 2023).
[3] Opinion and Order on Plaintiffs’ Motion for a Preliminary Injunction, Duncan v. City of Portland, No. 23CV39824 (Or. Cir. Ct. Nov 9, 2023).