State v. Barrett
460 P.3d 93
Or. Ct. App.2020Background
- Defendant (Alexandra Barrett) is homeless and was cited/arrested multiple times in 2014 for unlawful public camping (PCC 14A.50.020) and related offenses; parties stipulated she was residing downtown and homeless at the time of the first arrest.
- Pretrial, Barrett moved to dismiss camping charges on Eighth Amendment as-applied grounds, arguing camping was an involuntary consequence of homelessness; she framed the challenge as as-applied rather than facial.
- Trial court denied the pretrial motion as factually underdeveloped and noted the availability of a necessity/choice-of-evils defense; Barrett later asserted that defense at trial; the jury convicted her of unlawful camping and other offenses.
- On appeal Barrett renewed Eighth Amendment, right-to-travel, and statutory-preemption arguments (ORS 203.077/203.079 require removal policies and notice before removal/citation).
- The Court of Appeals affirmed: it declined to decide the Eighth Amendment as-applied question because the record lacked necessary factual development, rejected the right-to-travel challenge, and held the state policy statutes do not preempt Portland’s camping ordinance.
Issues
| Issue | Plaintiff's Argument (State/City) | Defendant's Argument (Barrett) | Held |
|---|---|---|---|
| Whether PCC 14A.50.020, as applied, violates the Eighth Amendment by criminalizing conduct that is an unavoidable consequence of homelessness | Ordinance punishes conduct (camping), not status; Barrett failed to develop factual record for as-applied relief; procedural posture inappropriate for broad constitutional ruling | Camping is involuntary for homeless persons when no shelter exists; criminalizing that conduct punishes status and violates Eighth Amendment | Appeal: court declined to decide the constitutional question on the merits and affirmed denial of pretrial motion because the record lacked facts required for an as-applied Eighth analysis |
| Whether the camping ordinance infringes the right to travel | Ordinance applies equally to all and does not bar travel or residency; Barrett’s as-applied claim is fact-dependent and undeveloped | Ordinance effectively prevents homeless people from residing in or visiting Portland because they must sleep outside | Rejected: fails as a facial challenge and as-applied claim fails for lack of record |
| Whether ORS 203.077/203.079 preempt PCC 14A.50.020 (notice and policy requirements) | The statutes are policy directives requiring cities to adopt humane removal procedures; they do not create elements of crimes or expressly preempt municipal offenses | Statutory notice/policy requirements limit when a city may cite for unlawful camping and therefore preempt local criminal enforcement | Rejected: statutes require local policies but do not unambiguously occupy the field or conflict with the ordinance; they do not make compliance an element of the municipal crime |
| Procedural/preservation issues: appropriateness of pretrial demurrer/motion and the motion for judgment of acquittal (MJOA) | Pretrial demurrer/motion was an improper vehicle for the fact-dependent as-applied Eighth claim; Barrett did not preserve Eighth arguments at trial | Barrett relied on pretrial motion and contends MJOA should have succeeded because of preemption or constitutional defect | Affirmed: trial court properly denied pretrial motion on record grounds; MJOA denial on preemption and related claims upheld because statutes do not preempt the ordinance and some defenses were not preserved |
Key Cases Cited
- Robinson v. California, 370 U.S. 660 (1962) (holding that criminalizing a person’s status can violate the Eighth Amendment)
- Powell v. Texas, 392 U.S. 514 (1968) (plurality upholding public-intoxication conviction; fractured opinions on involuntary conduct and status)
- Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019) (as-applied Eighth Amendment holding: camping bans unconstitutional when no shelter is available)
- Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006) (similar involuntariness analysis regarding enforcement against homeless individuals)
- Ingraham v. Wright, 430 U.S. 651 (1977) (Eighth Amendment imposes substantive limits on what can be criminalized, to be applied sparingly)
- Manning v. Caldwell, 930 F.3d 264 (4th Cir. 2019) (endorsing Eighth-Amendment claims where conduct is an involuntary manifestation of an illness/status)