HomeMy WebLinkAbout2019CV30889 - ADAM WIEMOLD V. CITY OF FORT COLLINS - 022B - EXHIBIT B TO REPLY BRIEFIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MARLIN ANDERSON, MARY BAILEY,
MATTHEW CHASE, JACK GOLDEN, on
behalf of themselves and all
others similarly situated,
Plaintif is,
CITY OF PORTLAND; CITY OF
PORTLAND POLICE CHIEF ROSANNE
SIZER, in her individual and
official capacity; CITY OF
PORTLAND POLICE OFFICER J.
HURLEY, in his individual and
official capacity; CITY OF
PORTLAND POLICE OFFICER J.
FULITANO, in his individual
and official capacity; CITY
OF PORTLAND POLICE OFFICERS
DOES 1 THROUGH 50,
Defendants.
Monica Goracke
Ed Johnson
Spencer M. Neal
Oregon Law Center
921 S.W. Washington #516
Portland, OR 97205
Attorneys for plaintiffs
Civ. No. 08-1447-AA
OPINION AND ORDER
1 - OPINION AND ORDER
Case 6:08-cv-01447-AA Document 16 Filed 07/31/09 Page 1 of 23
Exhibit 2
David A. Landrum
Deputy City Attorney
Office of City Attorney
1221 S.W. Fourth Ave., Room 430
Portland, OR 97204
Attorney for defendants
AIKEN, Chief Judge:
Plaintiffs bring a class action suit under 42 U.S.C. 5 1983,
alleging violations of their rights to be free from cruel and
unusual punishment under the Eighth Amendment and their rights to
travel, freedom and movement, and equal protection under the
Fourteenth Amendment. Plaintiffs contend that defendants'
enforcement of no-camping and temporary structure ordinances
essentially criminalizes the status of being homeless, singles out
the homeless for disparate treatment, and prevents the homeless
from traveling to or residing in the City of Portland.
Accordingly, plaintiffs seek a declaration that defendants'
enforcement of the ordinances is unconstitutional, an injunction
prohibiting their enforcement against plaintiffs and other class
members, as well as damages, costs, and attorneys fees.
Defendants City of Portland, Police Chief Rosanne Sizer, and
City of Portland Police Officers J. Kurley and J. Fulitano (the
City) move for dismissal of plaintiffs' claims under Fed. R. Civ.
P. 12(b) (6) for failure to state a claim. The motion is granted
with respect to plaintiffs' right to travel, freedom of movement
and substantive due process claims, and denied with respect to
plaintiffs' Eighth Amendment and equal protection claims.
2 - OPINION AND ORDER
Case 6:08-cv-01447-AA Document 16 Filed 07/31/09 Page 2 of 23
BACKGROUND
The Portland City Code (FCC) renders it unlawful "for any
person to camp in or upon any public property or public right of
way" unless otherwise authorized by the FCC or the mayor in
"emergency circumstances. " PCC S 14A. 50.020 (8) . "TO camp'' is
defined as "to set up, or to remain in or at a campsite, for the
purpose of establishing or maintaining a temporary place to live.'f
- Id. S 14A.50.020(A)(l). "Campsite" is defined as "any place where
any bedding, sleeping bag, or other sleeping matter, or any stove
or fire is placed, established, or maintained, whether or not such
place incorporates the use of any tent, lean-to, shack, or any
other structure . . . ." Id. S 14A.50.020(A)(Z). A violation of
§ 14A.50.020 is punishable by a fine not to exceed $100 and a term
of imprisonment not to exceed 30 days. Id. S 14A.50.020(C).
It is also unlawful "to erect, install, place, leave, or set
up any type of permanent or temporary fixture or structure of any
material (s) in or upon non-park public property or public right-of-
way without a permit or other authorization from the City." PCC 5
14A.50.050(A). Any such fixture or structure is deemed a "public
nuisance," and "[iln addition to other remedies provided by law,"
may be "summarily" abated by the police. Id. § 14A.50.050(B).
An Executive Order issued by the Chief of Police addresses the
"clean-up" of "established campsites" by police officers.
Defendants' Memorandum in Support of Motion of Dismiss, Ex. 3. A
3 - OPINION AND ORDER
Case 6:08-cv-01447-AA Document 16 Filed 07/31/09 Page 3 of 23
"camp clean-up" is "any organized, prearranged operation by or on
behalf of the Bureau to remove illegal campers, camps or camp
structures from an established campsite." - Id. p. I. "Established
campsites" are "locations where a camp structure such as a hut,
lean-to or tent is set up for the purpose of maintaining a
temporary place to live and exists on public property." Id. Under
the Executive Order, officers are required to post a 24-hour notice
prior to clean-up of the campsite and to notify JOIN - a local
agency that provides services to homeless persons - of the pending
clean-up. Id. p. 2. Campsites located on private property or
public rights of way or those constituting "public health hazards"
do not require 24 hours notice prior to clean-up. Id. pp. 2-3.
Plaintiffs Marlin Anderson, Mary Bailey, Matthew Chase, and
Jack Golden are involuntarily homeless and reside in Portland,
Oregon.
Anderson has physical and mental disabilities that preclude
full-time employment. Anderson occasionally finds temporary work
and resides in a van with his five dogs. Anderson has been warned
by police officers not to camp in Delta Park in northeast Portland.
Bailey also has disabilities that prevent full-time
employment, including seizures that affect her memory. Bailey and
her partner, plaintiff Matthew Chase, usually sleep outside in
southeast Portland near the Hawthorne Bridge. Bailey and Chase are
frequently told by police officers that they cannot lie down and to
4 - OPINION AND ORDER
Case 6:08-cv-01447-AA Document 16 Filed 07/31/09 Page 4 of 23
"move along." Although her medical problems require Bailey to
rest, police officers have told Bailey that she cannot lie down to
sleep. Shelter beds for women are extremely limited in Portland,
and Bailey needs the help and protection of Chase when she suffers
seizures.
Golden is also disabled and receives disability benefits.
Golden cannot find affordable housing and typically sleeps outside
in southeast Portland near the Hawthorne Bridge. While sleeping
outside, Golden has been told by police officers to "move along."
Defendant Rosanne Sizer is the Chief of Police of the Portland
Police Bureau, and defendants J. Hurley and J. Fulitano are
Portland Police Bureau Officers who issued camping or unlawful
structure citations to Anderson, Chase, and Golden.
On the afternoon of August 30, 2007, Anderson was napping on
top of his sleeping bag in Delta Park in north Portland, just south
of the dog park at Hayden Meadows Drive. Officer Hurley made
contact with Anderson and cited him for unlawful camping under PCC
§ l4A. 50.020. Anderson pled not guilty and was scheduled for trial
on October 15, 1997. On October 11, 2007, after being notified
that Anderson would be represented by counsel, the District
Attorney dismissed the citation.
On May 7, 2008, Chase and Golden were in a temporary campsite
under the Hawthorne Bridge. Portland police officers posted a no-
camping notice on each of their tents, with handwritten notes
5 - OPINION AND ORDER
Case 6:08-cv-01447-AA Document 16 Filed 07/31/09 Page 5 of 23
stating: "1 p.m., time to be moved or this stuff will be taken
away." Chase and Golden understood this to mean that they had 24
hours from 1:00 p.m. on May 7, 2008 to move their tents and
belongings. Instead, just before 9: 00 p.m. on May 7, 2008, Officer
Fulitano arrived and ordered them to remove their belongings
immediately. The officer cited both men for "erecting a structure
on public property" in violation of FCC § 14A.50.050.
In September 2008, Bailey and Chase were living in the parking
lot of a private building in southeast Portland with the permission
of the building manager. The manager told Bailey and Chase that
police officers had threatened to "shut down1' the building if
Bailey and Chase did not move their belongings. On or about
October 1, 2008, Bailey and Chase moved their personal property to
the nearby street, taking care not to obstruct public rights-of-
way. The next day, they found most of their belongings gone and
the rest scattered about. A "notice of illegal camping" was found
with their belongings, with no date or time given for the clean-up
and seizure of their property.
Bailey and Chase went to the address listed on the notice to
retrieve their property and found only a few pieces of clothing
that were wet and moldy. Missing were two bicycles, two bicycle
trailers, clothing, boots, tools, personal items, and family
photographs and mementos, including the ashes of Bai'leyrs deceased
father. Bailey and Chase allege that, if given adequate notice of
6 - OPINION AND ORDER
Case 6:08-cv-01447-AA Document 16 Filed 07/31/09 Page 6 of 23
the sweep, they would have contacted a local service agency to help
move their property.
On December 12, 2008, plaintiffs filed suit. Plaintiffs
allege that the City's enforcement of the anti-camping and
temporary structure ordinances essentially criminalizes the status
of homelessness in violation of the Eighth Amendment, because it
punishes them for sleeping in a public place even though they have
no lawful place to sleep. Plaintiffs also allege that they and
other homeless people have been singled out for enforcement of the
anti-camping and temporary structure ordinances, thus denying them
equal protection under the law. Finally, plaintiffs allege that
defendantst enforcement of the ordinances interferes with their
fundamental rights of travel and freedom of movement, and infringes
on their substantive liberty interests.
DISCUSSION
The City argues that plaintiffs fail to state a claim for
which relief may be granted. Fed. R. Civ. P. 12 (b) (6) . At this
stage of the proceedings, plaintiffs' factual allegations are
accepted as true, with all inferences construed in their favor.
Outdoor Media Grou~, Inc. v. Citv of Beaumont, 506 F. 3d 895, 900
(9th Cir. 2007). Although plaintiffs' complaint need not assert
detailed factual allegations, it nevertheless must plead "enough
facts to state a claim to relief that is plausible on its face."
Bell Atlantic Corw. v. Twomblv, 550 U.S. 544, 570 (2007).
7 - OPINION AND ORDER
Case 6:08-cv-01447-AA Document 16 Filed 07/31/09 Page 7 of 23
A. Cruel and Unusual Punishment under the Eiahth Amendment
Plaintiffs allege that the City's enforcement of the
ordinances targets their involuntary conduct of sleeping outside on
public property, essentially criminalizing the status of
homelessness in violation of the Eighth Amendment's prohibition
against cruel and usual punishment. The City moves to dismiss this
claim on grounds that: 1) violation of the temporary structure
ordinance is not a "crime"; 2) plaintiffs lack standing to assert
an Eighth Amendment claim absent convictions under the challenged
ordinances; and 3) the ordinances do not violate the Eighth
Amendment because they criminalize conduct rather than status.
1. Tem~orarv Structure Ordinance FCC S 14A.50.050
The City argues that the Eighth Amendment does not apply to
PCC 5 14A.50.050, because erecting a temporary structure is
considered a nuisance rather than a crime and is punishable through
abatement of the structure instead of fines and/or imprisonment.
However, as noted by plaintiffs, abatement is not the sole remedy
for erecting a temporary structure on public property or rights of
way. Rather, abatement is available "in addition to other remedies
provided by law," PCC § 14A.50.050(B), which include a fine of not
more than $500 and a term of imprisonment not exceeding six months.
7 Id. § 14A.20.060. Therefore, the temporary structure ordinance is
not outside the scope of the criminal process and accompanying
Eighth Amendment restrictions.
8 - OPINION AND ORDER
Case 6:08-cv-01447-AA Document 16 Filed 07/31/09 Page 8 of 23
2. Standinq
Defendants next argue that plaintiffs lack standing to bring
an Eighth Amendment challenge, because they have not been convicted
of violating the ordinances. Relying on the Fifth Circuit decision
in Johnson v. Citv of Dallas, 61 F.3d 442 (5th Cir. 1995),
defendants argue that "the Eighth Amendment 'was designed to
protect those convicted of crimes,''' and absent convictions under
the anti-camping or temporary structure ordinances, plaintiffs have
not suffered injury in fact and therefore lack standing to raise a
Eighth Amendment challenge. Id. at 444 (quoting Incrraham v.
Wriaht, 430 U. S. 651, 664 (1977)). At oral argument, the City
conceded that two plaintiffs have convictions under the temporary
structure ordinance. Regardless of actual convictions, I find that
plaintiffs' allegations are sufficient to confer standing.
In Inaraham, the Supreme Court described three ways in which
the Eighth Amendment "circumscribes" the criminal process:
First, it limits the kinds of punishment that can be
imposed on those convicted of crimes; second, it
proscribes punishment grossly disproportionate to the
severity of the crime; and third, it imposes substantive
limits on what can be made criminal and punished as such.
Inuraham, 430 U. S. at 667 (citations omitted) (emphasis added) .
Thus, while the City is correct that Inuraham recognized the
"primary purpose" of the Eighth Amendment is to protect those
convicted of crimes, it also limits "what can be made criminal,"
implicating conduct that is subject to criminal prosecution. See
9 - OPINION AND ORDER
Case 6:08-cv-01447-AA Document 16 Filed 07/31/09 Page 9 of 23
Lehr v. Citv of Sacramento, 2009 WL 1420967, *9 (E.D. Cal. May 20,
2009) ; Jovce v. City and Countv of San Francisco, 846 F. Supp. 843,
853 (N.D. Cal. 1994). Therefore, I do not find that Inaraham
limits Eighth Amendment challenges to those plaintiffs who have
been convicted of a crime. Instead, I follow the lead of the Ninth
Circuit and apply established requirements for standing. See Jones
v. Citv of Los Anueles, 444 F.3d 1118, 1126 (9th Cir. 2006),
vacated by 505 F.3d 1006 (9th Cir. 2007).'
To establish Article I11 standing, plaintiffs must show injury
in fact, causation, and redressability. Prescott v. Countv of El
Dorado, 298 F.3d 844, 846 (9th Cir. 2002). Where the plaintiffs
seek to enjoin law enforcement activities, "standing depends on
[their] ability to avoid engaging in the illegal conduct in the
future. " Jones, 444 F. 3d at 1126 (citing Hodaers-Durain v. de la
Vina, 199 F.3d 1037, 1041 (9th Cir. 1999) (en banc)). Plaintiffs
need only establish a "reasonable expectation" that their conduct
will recur and trigger the alleged harm. Id, at 1127.
l~ones involved a similar challenge brought by homeless
persons against the City of Los Angeles. Jones was vacated by the
Ninth Circuit to facilitate settlement between the parties and may
not be cited as binding precedent. Jones, 505 F.3d 1006. However,
because the decision to vacate did not affect the reasoning in
Jones, I may consider it as persuasive authority in developing an
informed analysis of the issues presented. See DHX, Inc. v.
Allianz AGF MAT, Ltd., 425 F.3d 1169, 1176 (9th Cir. 2005) ("But at
minimum, a vacated opinion still carries informational and perhaps
even persuasive or precedential value.") (Beezer, J., concurring);
McKenzie v. Dav, 57 F.3d 1493, 1494 (9th Cir. 1995) (utilizing
vacated opinion as persuasive authority and adopting analysis).
10 - OPINION AND ORDER
Case 6:08-cv-01447-AA Document 16 Filed 07/31/09 Page 10 of 23
Here, plaintiffs allege past injuries and threatened future
injuries resulting from the City's enforcement of the anti-camping
and temporary structure ordinances through the threat of criminal
sanctions and the loss of personal property. Further, plaintiffs
claim that they may be excluded from public parks in Portland for
up to 180 days for violating the anti-camping ordinances.
Plaintiffs allege that they are likely to violate the ordinances in
the future by sleeping in public places, because they have no other
place to sleep. Jones, 444 F.3d at 1127. Thus, plaintiffs have
standing to assert an Eighth Amendment claim.
3. Status vs. Conduct
The City next argues that plaintiffs fail to state a
meritorious Eighth Amendment claim, because the challenged
ordinances target the conduct of camping and erecting temporary
structures rather than the status of being homeless. Plaintiffs
respond that they do not assert a facial challenge to the
ordinances; rather, plaintiffs argue that the City's enforcement of
the ordinances extends beyond the limits of "what can be made
criminalN under the Eighth Amendment. Inuraham, 430 U.S. at 667.
On two occasions, the Supreme Court has addressed whether laws
impermissibly criminalize status rather than conduct. In Robinson
v. California, 370 U.S. 660 (1962) the Court found unconstitutional
a statute rendering it criminal to "be addicted to the use of
narcotics." In so holding, the Court equated drug addiction to an
11 - OPINION AND ORDER
Case 6:08-cv-01447-AA Document 16 Filed 07/31/09 Page 11 of 23
illness "which may be contracted innocently or involuntarily" and
found that the impasition of criminal punishment against a drug
addict, "even though he has never touched any narcotic drug within
the State or been guilty of any irregular behavior there,"
constituted cruel and unusual punishment. Id. at 667.
A few years later, the Court addressed a criminal statute
prohibiting public intoxication. &g Powell v. Texas, 392 U.S. 514
(1968). A plurality of the Court distinguished Robinson and found
that the statute proscribed conduct in conformity with the Eighth
Amendment, even though the defendant was a chronic alcoholic and
claimed to have no control over his alcohol consumption. Id. at
532-33. The plurality interpreted Robinson to prohibit the
criminalization of "mere status" and declined to extend Eighth
Amendment protection to "involuntary" conduct. Powell, 392 U.S. at
534-36 ("Ultimately, then, the most troubling aspects of this case,
were Robinson to be extended to meet it, would be the scope and
content of what could only be a constitutional doctrine of criminal
responsibility.").
Courts have reached differing conclusions in deciding whether
the Eighth Amendment protects homeless persons against the
enforcement of criminal laws that prohibit sleeping in public
areas. For examples, in Jones, the Ninth Circuit concluded that a
City of Los Angeles ordinance that crirninalized "sitting, lying, or
sleeping on public streets and sidewalks at all times" could not be
- OPINION AND ORDER
Case 6:08-cv-01447-AA Document 16 Filed 07/31/09 Page 12 of 23
enforced against the homeless population. Jones, 444 F.3d at 1120,
1138. The court reasoned:
Because there is substantial and undisputed evidence that
the number of homeless persons in Los Angeles far exceeds
the number of available shelter beds at all times,
including on the nights of their arrest or citation, Los
Angeles has encroached upon Appellants ' Eighth Amendment
protections by crirninalizing the unavoidable act of
sitting, lying, or sleeping at night while being
involuntarily homeless. A closer analysis of Robinson
and Powell instructs that the involuntariness of the act
or condition the City criminalizes is the critical factor
delineating a constitutionally cognizable status, and
incidental conduct which is integral to and an
unavoidable result of that status, from acts or
conditions that can be criminalized consistent with the
Eighth Amendment.
Id. at 1132; see also Pottinaer v. Citv of Miami, 810 F. Supp.
1551, 1564 (S.D. Fla. 1992) (finding that "arresting homeless
people for harmless acts they are forced to perform in public
effectively punishes them for being homeless").
In contrast, the Eleventh Circuit rejected a similar challenge
to a City of Orlando ordinance, emphasizing that the city presented
"unrefuted" evidence that a large homeless center had "never
reached its maximum capacity" and no individual was ever turned
away by the shelter for lack of available space. Joel v. Citv of
Orlando, 232 F.3d 1353, 1362 (11th Cir. 2000). Thus, the court
concluded that "[tlhe City is constitutionally allowed to regulate
where 'camping' occurs, and the availability of shelter space means
that Joel had an opportunity to comply with the ordinance." Id.
see also Jovce, 846 F. Supp. at 857, 858 ("On no occasion,
13 - OPINION AND ORDER
Case 6:08-cv-01447-AA Document 16 Filed 07/31/09 Page 13 of 23
moreover, has the Supreme Court invoked the Eighth Amendment in
order to protect acts derivative of a person's status. . . . such
a holding would be required to provide constitutional protection to
any condition over which a showing could be made that the defendant
had no control."). Similarly, the district court in Lehr recently
rejected the analysis of the Ninth Circuit in Jones, finding it
unsupported by Powell or Robinson. Lehr, 2009 WL 1420967 at *14,
17 (declaring that plaintiffs' argument would "set precedent for an
onslaught of challenges to criminal convictions by those who seek
to rely on the involuntariness of their actions").
Citing Joel, Jovce, Lehr, and Judge Rymer's dissent in Jones,
the City argues that plaintiffs fail to allege inadequate shelter
space to render their conduct "involuntary," that the ordinances
target conduct rather than status, and that homelessness is not a
constitutionally cognizable status engendering protection for
derivative acts. Plaintiffs emphasize that no case relied on by
the City was decided at the pleadings stage and argue that they are
entitled to demonstrate that the City's enforcement of the
challenged ordinances criminalizes conduct - i.e., sleeping in
public - that is inexplicably intertwined with their "involuntary
condition" of hornelessness.
I recognize and appreciate the reluctance of Jovce and Lehr to
extend blanket constitutional protection to involuntary acts
derivative of status, given the dearth of precedential guidance.
14 - OPINION AND ORDER
Case 6:08-cv-01447-AA Document 16 Filed 07/31/09 Page 14 of 23
I further agree with Lehr that disallowing criminal sanctions based
on the involuntariness of such conduct creates a slippery slope
that may not be contained. Lehr, 2009 WL 1420967, *17 (a decision
in the plaintiffs1 favor "would potentially provide constitutional
recourse to anyone convicted on the basis of conduct derivative of
a condition he is allegedly 'powerless to change1 ") . That said, it
seems a reasonable proposition under the Eighth Amendment that
homeless persons should not be subject to criminal prosecution for
merely sleeping in public at any time of day.
Ultimately, I part company with the reasoning employed by
Jones, Joel, and Pottinaer and decline to adopt the pronouncement
that the Eighth Amendment limitation on criminalizing "mere status"
depends solely on whether the challenged law or its enforcement
targets derivative, "involuntary" conduct. See, e.~., Jones, 444
F.3d at 1132 ("the involuntariness of the act or condition . . . is
the critical factor delineating a constitutionally cognizable
status"); Pottinuer, 810 F. Supp. at 1562 (noting that the
"voluntaxiness of the status or condition is the decisive factor").
Rather, an equally important factor is the nature of the prohibited
conduct.
Notably, while reiterating the principal that an actus reas is
required for criminal proscription, the Supreme Court in Powell
also looked to the nature of the act and the reasons for its
prohibition:
15 - OPINION AND ORDER
Case 6:08-cv-01447-AA Document 16 Filed 07/31/09 Page 15 of 23
The State of Texas thus has not sought to punish a mere
status, as California did in Robinson; nor has it
attemptedto regulate appellant's behavior in the privacy
of his own home. Rather, it has imposed upon appellant a
criminal sanction for public behavior which may create
substantial health and safety hazards . . . and which
offends the moral and esthetic sensibilities of a large
segment of the community.
Powell, 392 U.S. at 532 (emphasis added); see also Jones, 444 F.3d
at 1139 (recognizing that "both the [Supreme] Court and [the Ninth
Circuit] have constrained this category Eighth Amendment
violation to persons who are being punished for crimes that do not
involve conduct that society has an interest in preventing")
(Rymer, J., dissenting) (emphasis added) ; Pottincrer, 810 F. Supp.
at 1564, 1565 n.19 (noting the "harmless" and "innocent" nature of
criminalized conduct) . Thus, in addition to the involuntariness of
the targeted conduct and its relatedness to a claimed status, a
critical factor is whether and to what degree the City's
enforcement of the anti-camping and temporary structure ordinances
criminalizes "conduct that society has an interest in preventing."
Here, plaintiffs argue that the City is enforcing the anti-
camping ordinance to prohibit sleeping or lying on public property
at any time if "bedding material" is present. Plaintiffs allege
that officers cited Anderson for napping on top of his sleeping bag
in a City park during the day. Plaintiffs further allege that
police officers have told Bailey, Chase, and Goldman to "move
along" when lying down or sleeping public property. Plaintiffs
maintain that Portland has far more homeless people than available
16 - OPINION AND ORDER
Case 6:08-cv-01447-AA Document 16 Filed 07/31/09 Page 16 of 23
shelter space, and that many homeless people cannot access shelters
based on physical disabilities, mental illness, or other factors.
Plaintiffs argue that if homeless people have nowhere else to
sleep, punishing them for sleeping in a public place essentially
renders sleeping, and their status of homelessness, a crime.
Thus, I find that plaintiffs adequately state a claim under
the Eighth Amendment, in that they allege that the City's
enforcement of the anti-camping and temporary structure ordinances
criminalizes them for being homeless and engaging in the
involuntary and innocent conduct of sleeping on public property.
Given that plaintiffs bring an as-applied challenge, precisely
when, where and how the City enforces the anti-camping and
temporary structure ordinances requires development of the facts.
Accordingly, the City's motion is denied with respect to
plaintiff's Eighth Amendment claim.
B. Equal Protection
The City next moves for dismissal of plaintiffs' equal
protection claim, arguing that strict scrutiny does not apply to
the court's review of the challenged ordinances, and that the City
posits a rational basis for the prohibition of camping and
temporary structures on public property.
"The Equal Protection Clause directs that 'all persons
similarly circumstanced shall be treated alike.'" Plvler v. Doe,
457 U.S. 202, 216 (1982) (quoting F.S. Rovster Guano Co. v.
17 - OPINION AND ORDER
Case 6:08-cv-01447-AA Document 16 Filed 07/31/09 Page 17 of 23
Viruinia, 253 U.S. 412, 415 (1920) ) . Where a plaintiff alleges
selective enforcement of criminal laws in violation of the Equal
Protection Clause, the "plaintiff must demonstrate that enforcement
had a discriminatory effect and the police were motivated by a
discriminatory purpose." Rosenbaum v. Citv and Countv of San
Francisco, 484 F.3d 1142, 1152 (9th Cir. 2007) (citing Wavte v.
United States, 470 U.S. 598, 608 (1985)). Further, plaintiffs
"seeking to enjoin alleged selective enforcement must demonstrate
the police misconduct is part of a 'policy, plan, or a pervasive
pattern.'" - Id. at 1153 (quoting Thomas v. Countv of Los Angeles,
978 F.2d 504, 509 (9th Cir. 1993)).
Notably, "the availability of such a claim has never been
limited only to those groups accorded heightened scrutiny under
equal protection jurisprudence." Stemler v. Citv of Florence, 126
F.3d 856, 874 (6th Cir. 1997). "Instead, a plaintiff makes out a
selective-enforcement claim if she shows that the state based its
enforcement decision on an 'arbitrary classification,' that . . .
gives rise to an inference that the state 'intended to accomplish
some forbidden aim' against that group through selective
application of the laws." Id. (quoting Ovler v. Boles, 368 U.S.
448, 456 (1962) and Futernick v. Sumpter Tws., 78 F.3d 1051, 1056
(6th Cir. 1996)).
Thus, for purposes of this motion I need not decide whether
homelessness is a "suspect class," whether sleeping is a
Case 6:08-cv-01447-AA Document 16 Filed 07/31/09 Page 18 of 23
"fundamental right," or whether strict scrutiny or rational basis
review applies.' Here, plaintiffs allege that police officers
cited Anderson for napping on a sleeping bag in a public park,
repeatedly tell Bailey, Chase, and Golden to "move along" while
lying down or sleeping outside, and seize personal property while
conducting camp clean-ups without adequate notice. Further,
plaintiffs allege that the City's enforcement is strategically
deployed to target and harass homeless persons. Given plaintiffst
allegations of selective enforcement of the anti-camping and
temporary structure ordinances against the homeless based on
improper motives, I find that plaintiffs sufficiently state an
equal protection claim.
C. Riuht to Travel and Freedom of Movement
The City moves for dismissal of plaintiffs' right to travel
and freedom of movement claims, arguing that the challenged
ordinances do not distinguish between residents and non-residents,
apply to all persons within the City limits, and do not infringe on
plaintiffs' rights to interstate travel or freedom of movement.
Plaintiffs respond that the anti-camping and temporary
structure ordinances burden their fundamental right to travel and
freedom of movement by denying their ability to wmerely exist in a
place, " i . e. , to travel to and reside in the City of Portland,
'plaintiffs also allege that the City's enforcement interferes
with their fundamental rights under the Eighth and Fourteenth
Amendments.
19 - OPINION AND ORDER
Case 6:08-cv-01447-AA Document 16 Filed 07/31/09 Page 19 of 23
without risking citation or arrest. Plaintiffs argue that being
cited or told to "move along" for sleeping outside with "any
sleeping matter" on any public property at any time restricts
homeless persons' ability to travel to or reside in Portland. I am
not persuaded.
"Citizens have a fundamental right of free movement,
historically part of the amenities of life as we have known them."
Nunez bv Nunez v. Citv of San Dieuo, 114 F.3d 935, 944 (9th Cir.
1997) (citation and quotation marks omitted). The Supreme Court
has "expressly identified this 'right to remove from one place to
another according to inclination' as Ian attribute of personal
liberty' protected by the Constitution." Citv of Chicaao v.
Morales, 527 U.S. 41, 53 (1999). Further, the Constitution
guarantees the fundamental right to interstate travel. Nunez, 114
F.3d at 944 (citing Sha~iro v. Thom~son, 394 U.S. 618, 629 (1969)).
The Supreme Court has not recognized a fundamental right to
intrastate travel, though plaintiffs contend the right has been
recognized implicitly.
Regardless, I am unpersuaded by the cases on which plaintiffs
rely. In Pottinaer, the district court declared that "the City's
enforcement of laws that prevent homeless individuals who have no
place to go from sleeping, lying down, eating and performing other
harmless life-sustaining activities burdens their right to travel1'
by denying them "certain life necessities." 810 F. Supp. at 1580.
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In so holding, the district court cited Memorial Hosw. v. Marico~a
Countv, 415 U.S. 250, 259 (1974), where the Supreme Court held that
a statute conditioning free medical care on a one-year residency
requirement violated the equal protection clause because it
penalized the exercise of the right to travel by denying a basic
"necessity of life." In contrast, the City here is not granting or
withholding basic "necessities of life1' through travel or residency
restrictions. I thus decline to adopt the reasoning in Pottinuer.
In Johnson v. Board of Police Commlrs, 351 F. Supp. 2d 929
(E.D. Mo, 2004) the district court found a likelihood of success on
the merits of the plaintiffsf right to travel claim, noting that
they "have been arrested while eating, sitting, or standing in
public places in the Downtown area," "physically removed from the
Downtown area by police and abandoned north of the area," and "told
that they are not wanted in certain Downtown areas." Id. at 949.
Here, although plaintiffs allege that police officers may exclude
homeless persons from public parks for violating the anti-camping
or temporary structure ordinances, plaintiffs do not allege that
they have been excluded from a particular area of Portland.
Therefore, I find Johnson distinguishable.
As alleged in their Complaint, I fail to discern how the
alleged actions of the City interfere with plaintiffsr
constitutional right to travel. Plaintiffs allege that police
officers have told them to "move along" when sleeping in public and
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conducted camp clean-ups and seized their property. However,
plaintiffs do not allege that the City has attempted to restrain
their movement, prevented them from traveling to or from the City,
or excluded them from certain areas of the City. Granted, the
City's enforcement of the anti-camping and temporary structure
ordinances may render Portland unattractive to homeless persons,
but it does not constitute inference with plaintiffsf right to
travel or freedom of movement that rises to the level of a
constitutional deprivation. See Davison v. Citv of Tuscon, 924 F.
Supp. 989, 993 (D. Ariz. 1996).
D. Substantive Due Process
Plaintiffs also assert a substantive due process claim,
alleging that the "decision to remain in a public place of one's
choice is as much a part of personal liberty as the freedom of
movement inside our country's borders." Complaint, ¶ 53.
Plaintiffs also allege that they have a "human need to sleep
somewhere in the city in which they reside, and have no lawful
alternative to sleeping outside." - Id. ¶ 54.
However, plaintiffs cannot assert a substantive due process
claim under the Fourteenth Amendment when the challenged conduct
falls under a more specific constitutional right. Albriuht v.
Oliver, 510 U.S. 266, 272-75 (1994); Graham v. Connor, 490 U.S.
386, 394-95 (1989) . "Where a particular Amendment 'provides an
explicit textual source of constitutional protection' against a
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particular sort of government behavior, 'that Amendment, not the
more generalized notion of "substantive due process," must be the
guide for analyzing these claims. "' Albriaht, 510 U.S. at 273
(quoting Graham, 490 U.S. at 395).
Plaintiffs concede that the rights asserted under their
substantive due process claim are duplicative of those asserted
under their right to travel and freedom of movement claims.
Therefore, this claim is dismissed.
CONCLUSION
Defendants' Motion to Dismiss (doc. 6) is GRANTED in part and
denied in part. Plaintiffs' right to travel, freedom of movement,
and substantive due process claims are HEREBY DISMISSED.
Defendantsf motion is denied with respect to plaintiffsr Eighth
Amendment and equal protection claims.
IT IS SO ORDERED.
Dated this i?c day of July, 2009.
Ann Aiken
Chief United States District Judge
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