State v. Barrett

• Decision Date: 29 January 2020
• Docket Number: A159139 (Control), A159140, A159141, A159142, A159143, A159144, A159145
• Citation: 302 Or.App. 23,460 P.3d 93
• Parties: STATE of Oregon and City of Portland, Plaintiffs-Respondents, v. Alexandra Chanel BARRETT, aka Alexandra Barrett, aka Alexandra C. Barrett, Defendant-Appellant.
• Court: Oregon Court of Appeals

302 Or.App. 23

460 P.3d 93

STATE of Oregon and City of Portland, Plaintiffs-Respondents,

v.Alexandra Chanel BARRETT, aka Alexandra Barrett, aka Alexandra C. Barrett, Defendant-Appellant.

A159139 (Control), A159140, A159141, A159142, A159143, A159144, A159145

Court of Appeals of Oregon, En Banc.

Argued and submitted May 2, 2017, Chiloquin High School, Chiloquin.

January 29, 2020

Lindsey Burrows, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Denis M. Vannier argued the cause and filed the brief for respondent City of Portland.

Paul L. Smith, Salem, argued the cause for respondent State of Oregon. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Shauna M. Curphey filed the brief amicus curiae for Oregon Justice Resource Center, Portland Chapter of the National Lawyers Guild, Homeless Youth Law Clinic, Common Cup Family Shelter, Operation Nightwatch, Right to Dream Too, Sisters of the Road, First Unitarian Church of Portland, Augustana Lutheran Church, and Albina Ministerial Alliance. Also on the joint brief were Mathew W. Dos Santos and Kelly K. Simon for ACLU of Oregon.

Before Egan, Chief Judge, and Armstrong, Ortega, DeVore, Tookey, DeHoog, James, Aoyagi, Powers, and Mooney, Judges, and Hadlock, Judge pro tempore.

DeVORE, J.

Defendant appeals from judgments convicting her of unlawful camping on public property, criminal trespass, and interference with a peace officer (IPO). Defendant first contends that the trial court erred by denying her pretrial motion to dismiss the charges of unlawful camping under Portland City Code (PCC) 14A.50.020.¹ She argues that the camping law, as applied to her in this case, violates the Eighth Amendment to the United States Constitution.² Defendant also contends that the camping law violates her constitutional right to travel. In addition, she contends that the court erred during trial by denying her motion for judgment of acquittal (MJOA) because convictions on the charges of unlawful camping and IPO were invalid. Finally, she contends that the city's camping law was preempted by ORS 203.077 and ORS 203.079, which require local governments to enact policies on removal of homeless campsites.³

As explained in the opinions of the court, we affirm the judgments of conviction on the several charges. We agree that the trial court did not err in denying defendant's pretrial motion and her MJOA. A majority of this court refrains from addressing whether enforcement of PCC 14A.50.020 could violate the Eighth Amendment on an as-applied basis in the absence of a factual record needed to properly present that question. By refraining from addressing that question, we do not imply an answer.⁴ Defendant's right-to-travel argument fails as either a facial or as-applied challenge. Finally, ORS 203.077 and ORS 203.079 do not preempt the camping law, as they only require cities and counties to develop and implement policies regarding the removal of homeless persons and their belongings, and they do not prescribe or limit the enactment or enforcement of criminal offenses.

I. PROCEEDINGS

The procedural facts are undisputed. In May, June, July, August, September, and October 2014, defendant was arrested and charged with a variety of offenses, including unlawful camping, PCC 14A.50.020; IPO, ORS 162.247 ; resisting arrest, ORS 162.315 ; second-degree criminal trespass, ORS 164.245 ; third-degree criminal mischief, ORS 164.345 ; and offensive littering, ORS 164.805.⁵

In December 2014, defendant filed a "Motion to Dismiss," asserting that convictions under Portland's camping ordinance would be cruel and unusual punishment as applied to her. She argued that camping in a public place was an involuntary act that was an unavoidable consequence of her status of being homeless. For purposes of the motion, the parties agreed to a number of factual statements. They agreed that, at the time of her first arrest on May 24, 2014, defendant was "a member of the homeless community residing in downtown Portland." Defendant's ensuing argument assumed that she remained homeless; the city did not contest that assumption.

Defendant advised the court "that the original motion, captioned as a motion to dismiss, was incorrectly captioned." She wrote, "It should have been labeled a demurrer under ORS 135.630(4)." (Emphasis added.) At the hearing on the motion, defendant elaborated:

"As we know [sic ] in the motion that this is an as applied challenge. And under [ORS] 135.630, we were really focusing on (4), which is the facts do not constitute an offense . However, demurrer only really applies to a facial challenge just on the face of the complaint itself . And so we really think that this motion should just be brought as a motion to find the city—the Portland city camping ordinance unconstitutional and just leave it at that."

(Emphases added.) Defendant explained, "On its face, the Portland City Code ordinance does not facially violate the constitution. That's why we just brought this as an ‘as applied’ challenge."

Treating the matter as an as-applied challenge, the trial court asked defendant if she contended that the ordinance was unconstitutional "no matter what the city did in terms of providing places for homeless people to sleep at night." Defendant replied that the answer depended on the number of beds and the restrictions on using them, such as a person's gender, a person's status with or without children, and a person's illicit drug use. The court responded, "Don't I need to know all those facts before I can decide whether this ordinance is constitutional or not?" Defendant referenced a past survey, which was not among the agreed statements, concerning homelessness and shelter beds in prior years. The court asked:

"Is that the relevant question? Or does it have to be on the night that [defendant] was—since we're an as applied challenge, on the particular night on the particular date that she was cited, if there's a bed available and she chose not to use it, wouldn't that make a difference?"

Defendant replied, "I don't think it's necessarily whether there's a bed available on that specific night." Defendant explained that a person might have been turned away repeatedly or felt safer camping on a sidewalk or in a park. The court asked whether it should consider the "bigger picture" and the efforts of the city to address homelessness. Defense counsel responded that one reason to have brought the case as an as-applied challenge was instead to focus on defendant's personal circumstances because counsel's office "didn't necessarily have the resources to go out and conduct this, which I agree with the Court is required and needed."

The trial court denied defendant's motion without deciding whether the anticamping ordinance necessarily violated the Eighth Amendment. The court observed that more facts would be helpful to decide the issue. Nevertheless, assuming without deciding that the Eighth Amendment prevented the city from enforcing its camping ordinance against defendant, the court concluded that the affirmative defense of "necessity" or "choice of evils," when raised at trial, could avoid a constitutional problem.⁶

At trial, defendant asserted an affirmative defense of "choice of evils." See ORS 161.200 (providing justification when necessity or choice of evils is provided). Defendant and the city presented conflicting evidence on that defense.⁷ Defendant did not raise her as-applied challenge under the Eighth Amendment. The jury returned its verdicts against defendant for unlawful camping and a variety of other charges.

II. AS-APPLIED CHALLENGE

On appeal, defendant's first assignments of error assert that the trial court erred in rejecting her pretrial motion against the public camping charges on the ground that Portland's ordinance violates the Eighth Amendment as applied to her. Citing Robinson v. California , 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962), defendant notes that, although the criminal law may penalize a person's conduct, such as possession or use of illicit drugs, it may not criminalize mere status, such as being addicted to drugs. By extension, she argues that her camping on public property was an involuntary act that was an unavoidable consequence of her status of being homeless. In this court, she supports her argument with evidence that was not in the record at the time of the pretrial motion.

The city responds that the trial court did not err, arguing a pretrial demurrer or motion to dismiss is an improper means by which to present defendant's challenge because those pretrial motions do not consider the facts necessary for an as-applied challenge under the Eighth Amendment. Relatedly, the city notes that, at trial, defendant did not renew the Eighth Amendment defense, and, as a result, the issue was not preserved. On the merits, the city argues that the camping ordinance does not violate the Eighth Amendment because it addresses the act of camping in public spaces, not the mere status of being homeless.

After we heard oral argument in this case, the Ninth Circuit Court of Appeals held, in a civil action under 42 USC section 1983, that a Boise ordinance that prohibited camping on public property as applied to homeless plaintiffs violated the Eighth Amendment, because camping could be considered an involuntary act that was an unavoidable consequence of the status of being homeless when the number of homeless persons exceeded the number of shelter beds. Martin v. City of Boise , 920 F.3d 584, 616 (9th Cir.), cert. den. , ––– U.S. –––– (2019).⁸ To indicate that its decision was "narrow," the court stated that an as-applied challenge would include consideration of additional facts, including a defendant's specific efforts at finding shelter and, even if shelters were unavailable, consideration of a city's concern for...