Anti-Camping Ordinance Challenged in Court

by Bridget Reilly

        "As enforced in the City of Eugene, the 'camping' ordinance targets only the poor and the homeless, in violation of the equal protection clauses of the US and the Oregon Constitutions.

        "As enforced in Eugene, E.C. Section 4,815 (the 'camping' ban) targets only those unable to afford permanent conventional housing. The sunbather, the vehicle of a friend or relative parked on a public street, adjacent to the host's home and used for living, etc. is not charged and has not been charged in the history of the ordinance's enforcement in Eugene."

        The above is an excerpt from the brief written by attorney Brian Michaels, in his attempt to get my camping citation of a year ago dismissed. The attempt was successful in my case, but the issue remains.

        As I pointed out in Part One of this series, today's anti-camping laws are only a modern-day version of yesteryear's vagrancy laws, which have been struck down by the courts as unconstitutional because they clearly targeted only the poor for enforcement. Here is a telling quote on that subject by Karl Sorg, from a letter he wrote me dated September 9:

        "J. D. Rockefeller used to boast that he wandered around the streets of Williamsburg, Virginia without a penny in his pockets, back in the days when Virginia enforced its 'vagrancy' laws against poor folks. The vagrants' only crime was having no money on their persons while in a public place. The same set of facts apparently didn't apply to J. D. Rockefeller. But he was a well-to-do capitalist. Therein lies the difference."

        All through Danielle Smith's final appeal (see Part One), Judge Henry repeatedly pointed out that the wording of Eugene's anti-camping ordinance doesn't betray any intent to discriminate against a particular class such as the homeless. The courts nowadays are at great pains to make a pretense of neutrality in these matters, as if a law against camping would be equally applied against rich homeowners as against poor homeless people.

        This is, of course, because the lawmakers had learned the lesson from the overturning of the vagrancy laws, that a law is unconstitutional if it obviously targets a certain group of people. So the key, of course, was to make it less obvious. That is why today's anti-camping statutes avoid using such loaded words as "vagrant" or "homeless," which would show the intent to discriminate. Instead, the Eugene ordinance uses the neutral term "person," and otherwise focuses heavily on the act of camping, and describes the paraphernalia typically found in a campsite that would show the "intent" to camp.

        Karl Sorg, a retired attorney who has long been an advocate of poor people's rights, had suspected for years that Eugene's camping ban was not enforced against people who live in expensive motorhomes, but only targets the beat-up old "hippie rigs" like mine. He mentioned to me, in a conversation back in April 1995, that he was looking for some hard evidence of this that could be used in court. I told him of one vehicle I had seen; the description is as follows:

        In about January of that year I happened to walk past a large, expensive-looking mobile home parked on a residential street in Eugene. It had a fancy placard bearing the names of its inhabitants, Mr. and Mrs. So-and-So. I also noted that by the door of the expensive-looking house it was parked in front of was another fancy placard bearing the names of its inhabitants, and the last name was the same as the one on the camper. So one would assume they were relatives.

        And the most damning piece of evidence was a thick orange cord stretched very conspicuously across the sidewalk (so that I had to step over it), and attached at one end to the RV and the other to the house. (The motorhome was parked on the street because it was clearly too long to fit in the driveway.) This meant that they were violating not only the state zoning law which prohibits such electrical hookups on private property, but also the city ordinance against camping on a public street! Yet these people didn't seem the least bit fearful of being prosecuted for either crime, as the camper and its connection to the adjacent house (both the physical connection of the power line and the blood connection implied by the names on the two placards) were being so flagrantly and proudly displayed.

        Karl also requested statistics of the number of people who had been cited under Eugene's anti-camping ordinance, and the home address of each such person. In Karl's words, "I am convinced that the requested statistics would show not one single, solitary case of a 'good' person with a home address being cited for violation of the ban." In this way he hoped to prove that only the homeless and poor are cited, and that the law is therefore discriminatory and unconstitutional (at least as it is enforced in Eugene).

        But when the request was make for these statistics, the court demanded the payment of a $3,000 fee before it would comply! This was ostensibly because the prosecutor had taken the liberty of reducing Danielle's "offense" from a "misdemeanor" to a mere "violation," as is done with all camping cases in Eugene. This procedure requires a bit of explaining:

        When a cop cites someone for "prohibited camping," s/he is actually charging them with a misdemeanor, as the "crime" was originally defined when the law was passed (though s/he probably won't say so.) This has the psychological effect of terrorizing the homeless person, as a misdemeanor carries a possible sentence of jail and/or a large fine. But when the person shows up in court, s/he finds that the "offense" had been re-defined as a "violation." This is supposed to have a psychologically relieving effect, as a "mere" violation carries no more weight of severity than a parking ticket, punishable only by a supposedly nominal fine and no jail sentence.

        But this psychology is deceptive, because in reality the defendant is being stripped of her/his due process rights (and the court is saving itself money). Being cited for a misdemeanor legally entitles one to several things:

1) To be read one's Miranda rights by the cop before being questioned.

2) A court-appointed attorney.

3) To be tried by a jury of one's peers.

4) A standard of proof beyond a reasonable doubt rather than a mere "Preponderance of the evidence."

Now, when I received my camping citation, the cop's notes indicated that he was citing me for a "misdemeanor," despite the fact that he hadn't read me my rights. The ticket also indicated a "mandatory" court appearance (consistent with its definition as a misdemeanor, as opposed to an "optional" court appearance which applies to mere violations such as parking tickets.)

        So, when I made my "mandatory" court appearance, I found that my "offense" had been predictably reduced to a "violation." This meant that I couldn't get a court-appointed attorney or a jury trial, yet my next court date was still mandatory, and I was also expected to pay the $90 bail to ensure that I would show up.

        They had played this same type of game in Danielle's case, with the added twist I already mentioned: besides not giving her a court-appointed lawyer, they also refused to provide (in lieu of the $3,000 fee) the statistics that would have shown the discriminatory pattern in the law's enforcement.

        And on top of they, Judge Henry had the balls to write at the conclusion of her case: " There is no evidence in this record that leads the Court to conclude that police policy or practice targets the homeless for enforcement or otherwise is intended to discriminate against the homeless...The Court is unable and unwilling to deduce any discriminatory purpose...based solely on the photographic and testimonial evidence received in this case."

        And all of these sleight-of-hand tactics were of course designed to obscure the court's real purpose, which was to frustrate all attempts to prove the unconstitutionality of the camping ban. So there the ordinance sits, still in the law books.

Bridget Reilly lives in Eugene and has published a paper called the Houseless Journal.

 

Copyright for the Homeless Grapevine Issue 32 February 1999