March 2011 - Parks & Recreation - 37

Amendment also " imposes substantive limits on what can be made criminal and punished as such. " Specifically,
the court found the Eighth Amendment
" limits what can be made criminal, implicating conduct that is subject to criminal prosecution. " Moreover, to establish
standing to bring suit, the court found
plaintiffs " need only establish a reasonable expectation that their conduct will
recur and trigger the alleged harm. "
Applying these principles to the facts
of this particular case, the federal district
court found plaintiffs had established
standing due to their inability " to avoid
engaging in the illegal conduct in the future " based upon their being homeless.
Here, plaintiffs allege past injuries and
threatened future injuries resulting
from the City's enforcement of the anticamping 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.

may create substantial health and safety
hazards which offend the moral and esthetic sensibilities of a large segment of
the community. "
Accordingly, the court found the " critical factor " in resolving this case was
" 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. " Further, the court
would consider whether the ordinance
targeted conduct, i.e.. homelessness,
which was involuntary and effectively

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As a result, the federal district court
held " plaintiffs have standing to assert an
Eighth Amendment claim. "

Status vs Conduct
The City had also argued 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, however, contended that " the City's
enforcement of the ordinances extends
beyond the limits of what can be made
criminal under the Eighth Amendment. "
In the opinion of the federal district
court, " homeless persons should not be
subject to criminal prosecution for merely sleeping in public at any time of day. "
On the other hand, consistent with the
Eighth Amendment, the court found the
City could reasonably impose " a criminal sanction for public behavior which

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March 2011 - Parks & Recreation

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