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November 01, 2023 Feature

News from the West

Ninth Circuit Reconsidered Decision on Homeless Camping in Public Parks in a Southern Oregon City

In Johnson et al. v. City of Grants Pass, Oregon, the 9th Circuit clarified a decision upholding a trial court injunction against enforcement of a small city’s ordinances imposing criminal penalties for sleeping in public parks and other spaces. An excerpt of the official Summary of the decision is reprinted below. The dissents and the objections and responses to the denial of rehearing by the full panel make for interesting reading. The entire decision may be accessed at 20-35752.pdf (

The panel issued an order amending the opinion and dissent filed September 28, 2022, and reported at 50 F.4th 787; filed an amended opinion and dissent concurrently with its order; and denied a petition for rehearing en banc after a request for a vote on whether to rehear the matter en banc, and the case failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration, in an action challenging City of Grants Pass ordinances which, among other things, preclude homeless persons from using a blanket, pillow, or cardboard box for protection from the elements while sleeping within City limits.

In the amended opinion, the panel affirmed in part and vacated in part the district court’s summary judgment and permanent injunction in favor of plaintiffs; affirmed certification pursuant to Fed. R. Civ. P. 23(b)(2), of a class of “involuntary homeless” persons; and remanded.

The five municipal ordinances, described as an “anti-sleeping” ordinance, two “anti-camping” ordinances, a “park exclusion” ordinance, and a “park exclusion appeals” ordinance, result in civil fines up to several hundred dollars per violation. Persons found to violate ordinances multiple times could be barred from all City property. If a homeless person is found on City property after receiving an exclusion order, they are subject to criminal prosecution for trespass.

The panel stated that this court’s decision in Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018), which held that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter” served as the backdrop for this entire litigation. Pursuant to Martin, it is an Eighth Amendment violation to criminally punish involuntarily homeless persons for sleeping in public if there are no other public areas or appropriate shelters where those individuals can sleep.

The panel first rejected the City’s argument that the district court lacked jurisdiction because plaintiffs’ claims were moot or because plaintiffs failed to identify any relief within a federal court’s power to redress. The panel held that there was abundant evidence in the record establishing that homeless persons were injured by the City’s enforcement actions in the past, and it was undisputed that enforcement has continued. The panel further held that the relief sought by plaintiffs, enjoining enforcement of a few municipal ordinances aimed at involuntary homeless persons, was redressable within the limits of Article III. While the matter was on appeal, the death of class representative Debra Blake did not moot the class’s claims as to all challenged ordinances except possibly the anti-sleeping ordinance. The panel vacated the summary judgment as to that ordinance and remanded to allow the district court to substitute a class representative in Blake’s stead. The remaining class representatives had standing to challenge the park exclusion, criminal trespass, and anti-camping ordinances.

The panel held that, based on the record in this case, the district court did not err by finding plaintiffs satisfied the requirements of Fed. R. Civ. P. 23(a) such that a class could be certified under Rule 23(b)(2). Although the City appeared to suggest that Martin’s need for an individualized inquiry into each alleged involuntary homeless person’s access to shelter defeated numerosity, commonality, and typicality, the panel held that nothing in Martin precluded class actions. The panel held that the district court did not abuse its discretion in concluding the numerosity requirement was met, that plaintiffs’ claims presented at least one question and answer common to the class, and that the class representatives’ claims and defenses were typical of the class in that they were homeless persons who claimed that the City could not enforce the challenged ordinances against them when they have no shelter.

Addressing the merits, the panel affirmed the district court’s ruling that the City of Grants Pass could not, consistent with the Eighth Amendment, enforce its anti-camping ordinances against homeless persons for the mere act of sleeping outside with rudimentary protection from the elements or for sleeping in their car at night, when there was no other place in the City for them to go. The panel held that Martin applied to civil citations where, as here, the civil and criminal punishments were closely intertwined.

There was no need to resolve whether the fines imposed under the anti-sleeping and anti-camping ordinances violated the Eighth Amendment’s prohibition on excessive fines because the permanent injunction would result in no class member being fined for such protected activity. Finally, the panel held that it was unnecessary to decide whether plaintiffs properly pled their procedural due process challenge to the park exclusion appeals ordinance because, subsequent to the district court’s order, the City amended the ordinance.

The panel directed the district court on remand to narrow its injunction to enjoin only those portions of the anti-camping ordinances that prohibited conduct protected by Martin and this opinion. In particular, the district court should narrow its injunction to the anti-camping ordinances and enjoin enforcement of those ordinances only against involuntarily homeless persons for engaging in conduct necessary to protect themselves from the elements when there was no shelter space available.

Oregon Appellate Court Parses Recreational Immunity Doctrine

Oregon law, as in other states, extends immunity from tort liability to public and (some) private landowners as to injury and damage resulting from free recreational access to those lands.

In Fields v. City of Newport, Oregon, the state’s intermediate appellate court considered the various complementary statutes as to immunity from the plaintiff’s injuries incurred when using the city’s improved trail access to a popular Pacific Ocean beach. The court reversed the trial court’s grant of summary judgment and remanded it for a factual determination of whether the plaintiff’s use of the access trail was indeed for recreation or was used simply for access. Read the full decision at A177242, Opinion - Opinions -- Oregon Court of Appeals - State of Oregon Law Library Digital Collection (

Serial Public Meetings and Public Records Law

The Oregon Legislature recently amended state statutes on public records and meetings to address so-called serial meetings, where governing body members discuss issues outside formal meetings and quorums. The new, salient text of now-enacted House Bill 2805 is as follows:

SECTION 1. ORS 192.610 is amended to read: 192.610. As used in ORS 192.610 to 192.690:

(1) “Convening” means:

(a) Gathering in a physical location;

(b) Using electronic, video, or telephonic technology to be able to communicate contemporaneously among participants;

(c) Using serial electronic written communication among participants; or

(d) Using an intermediary to communicate among participants.


(3) “Deliberation” means discussion or communication in a decision-making process.


SECTION 2. ORS 192.690 is amended to read: 192.690. (1) ORS 192.610 to 192.690 do not apply to any of the following:

(m) Communications between or among members of a governing body that are: (A) Purely factual or educational and that convey no deliberation or decision on any matter that might reasonably come before the governing body; (B) Not related to any matter that, at any time, could reasonably be foreseen to come before the governing body for deliberation and decision; or (C) Non-substantive in nature, such as communication relating to scheduling, leaves of absence and other similar matters.

The Bill continues with sections expanding the state Government Ethics Commission’s role in determining complaints of law violations. In some cases, a finding that an appointed public official has violated any provision of certain law or any rule adopted under the same or has violated any provision of ORS 192.610 to 192.690 with intentional disregard of the law or willful misconduct is prima facie evidence of unfitness where removal is authorized for cause either by law or pursuant to section 6, Article VII (Amended) of the Oregon Constitution. The full text of HB2805 is available to read.

Colorado Recreational Use Immunity Statute Leaves Liability Concerns for Private Owners of High Peak Trails

ABA Annual Meeting attendees seeking to hike peak trails while in Colorado may have faced “trail closed” signs or QR codes linking to electronic liability waiver forms, resulting from a 2019 10th Circuit decision on an immunity exception in the 1977 Colorado Recreational Use Statute.

In that case, the Court had sustained a $7.3 million personal injury verdict to a cyclist who crashed into a sinkhole on a recreational path in Colorado Springs. The sinkhole was known to a worker on the property but was not signed or otherwise warned of. The appeals court found that that amounted to “willful or malicious” failure to warn of a “known” danger, fitting an exception to immunity under the statute.

An attempt in the Colorado legislature to delete the word “willful” from the text failed to reach the floor. That result was sought by the State Trial Lawyers Association, among others. The reaction by private landowners whose property the high peaks trails traverse has been to close the trails and warn against trespassing. Or require waivers e-signed online, such as on a hiker’s cell phone. Owners have complained that their property insurers have warned against judgments that could bankrupt the owners.

More story details may be found on the Washington Post at this link (paywall possible). A similar account is on the Colorado Sun.

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