State v. Barrett

                                      23

Argued and submitted May 2, 2017, Chiloquin High School, Chiloquin; affirmed
                             January 29, 2020


                   STATE OF OREGON
                   and City of Portland,
                  Plaintiffs-Respondents,
                             v.
            ALEXANDRA CHANEL BARRETT,
      aka Alexandra Barrett, aka Alexandra C. Barrett,
                   Defendant-Appellant.
              Multnomah County Circuit Court
            14CR10631, 14CR14443, 14CR16019,
      14CR17841, 14CR20088, 14CR32814, 15CR00103;
            A159139 (Control), A159140, A159141,
            A159142, A159143, A159144, A159145
                                  

     Defendant appeals from judgments convicting her of unlawful camping
on public property and interference with a peace officer, among other things.
First, defendant contends that the trial court erred in denying her pretrial
motion to dismiss the charges of unlawful camping under Portland City Code
(PCC) 14A.50.020, arguing that the law, as applied to her, violates the Eighth
Amendment to the United States Constitution. She also argues that the camping
law violates her fundamental right to travel under multiple other constitutional
provisions. Second, defendant asserts that the court erred in denying her motion
for judgment of acquittal because ORS 203.077 and ORS 203.079, which require
local governments to enact policies regarding the removal of homeless campsites,
preempted the camping law. Held: The trial court did not err in denying either
motion. Given the absence of a factual record needed to properly present the
question, the Court of Appeals refrained from addressing whether enforcement
of the camping law could violate the Eighth Amendment on an as-applied basis.
Defendant’s right-to-travel argument fails as either a facial or as-applied challenge. 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.
    Affirmed.



    En Banc
    Stephen K. Bushong, Judge.
   Lindsey Burrows, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
24                                         State v. Barrett

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 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.
     Affirmed.
     Ortega, J., concurring.
     James, J., concurring.
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           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

    1
      PCC 14A.50.020 provides:
        “A. As used in this Section:
        “1. ‘To camp’ means to set up, or to remain in or at a campsite, for the
    purpose of establishing or maintaining a temporary place to live.
        “2. ‘Campsite’ means any place where any bedding, sleeping bag, or other
    sleeping matter, or any stove or fire is placed, established, or maintained,
    whether or not such place incorporates the use of any tent, lean-to, shack, or
    any other structure, or any vehicle or part thereof.
        “B. It is unlawful for any person to camp in or upon any public property
    or public right of way, unless otherwise specifically authorized by this Code
    or by declaration by the Mayor in emergency circumstances.
        “C. The violation of this Section is punishable, upon conviction, by a fine
    of not more than $100 or by imprisonment for a period not to exceed 30 days
    or both.”
    2
      The Eighth Amendment provides that “[e]xcessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Defendant also cites Article I, section 16, of the Oregon Constitution but presents
no developed argument involving state constitutional grounds. Consequently, we
approach the question as a matter of federal constitutional law.
    3
      Defendant also argues that the trespass and interference charges were
invalid because the camping ordinance was unconstitutional under the Eighth
Amendment, but she did not preserve that issue on those charges in her MJOA.
26                                                          State v. Barrett

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

    4
       In separately concurring opinions, some judges go further to address the
merits of the question. Some conclude that, with proof that camping was involuntary, enforcement of the ordinance would violate the Eighth Amendment. 302 Or
App at 45 (Ortega, J., concurring) (“[I]t is my view that the Eighth Amendment
does not permit punishing a homeless person for public camping when the camping is an unavoidable consequence of being homeless.”). Another judge concludes,
regardless of such facts, that the camping ordinance does not violate the Eighth
Amendment as a matter of law. 302 Or App at 52-53 (James, J., concurring)
(enforcement of the camping ordinance does not punish status in violation of the
Eighth Amendment).
    5
       Seven cases have been consolidated for appeal. A charge of unlawful possession of methamphetamine, ORS 475.894, was dismissed before trial. Defendant
does not appeal from the judgment of conviction for offensive littering, ORS
164.805.
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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
28                                                          State v. Barrett

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, 

,

, 

 (1962), defendant notes that,

    6
      The trial court followed In re Eichorn, 69 Cal App 4th 382, 81 Cal Rptr 2d
535 (1998) (concluding that there was no constitutional violation because a defendant may assert a necessity or “choice of evils” defense).
    7
      At trial, defendant presented a witness who referred to a survey in prior
years finding the number of homeless persons to exceed the number of shelter
beds. The city presented the testimony of police officers that defendant rebuffed
their attempts to interest her in engaging in social or housing services.
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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

, 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, 

 (9th Cir), cert den,
___ US ___ (2019).8 To indicate that its decision was “narrow,”

     8
       In other circumstances, other courts have expressed other views. See, e.g.,
Joel v. City of Orlando, 

 (11th Cir 2000), cert den, 

 (2001) (court rejected complaint of homeless plaintiffs alleging, among other
things, a violation of Eighth Amendment, but where shelter has never exceeded
its capacity); Tobe v. City of Santa Ana, 9 Cal 4th 1069, 1104-05, 

(1995) (given failure of evidence, rejecting the plaintiff’s Eighth Amendment
challenge to a city ordinance that banned public camping and determining that
ordinance was facially constitutional). Generally, we may consider Martin and
other opinions in reaching our own decision, but it is well established that we are
not compelled to follow the analysis of the Ninth Circuit or any other federal circuit court. Rather, in understanding the Eighth Amendment, we are bound only
by the United States Constitution and the decisions of the United States Supreme
Court and Oregon Supreme Court. State v. Febuary, 

, 548 n 1, 

 (2017); State v. Moyle, 

, 

 (1985).
30                                                          State v. Barrett

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 particular
locations or obstructions of public ways. 

 at 617 n 8.
         We begin and end with the recognition that, with her
pretrial motion, defendant did not develop a factual record
that was sufficient to permit the court to determine whether
conviction of defendant under PCC 14A.50.020 would violate
the Eighth Amendment as applied to her.9 That is, assuming,
without deciding, that she could present such an as-applied
challenge, she fails to provide the facts needed, in the first
place, for us to begin to consider the sort of challenge that
she presents. Although defendant argued at the hearing
about homeless persons, shelter beds, and restrictions on
shelter beds, there was no evidence received, stipulated to,
or judicially noticed to support that argument. The record
was devoid of general information about the availability of
shelter and devoid of any personal information about defendant’s attempts to be among those sheltered. In short, the
record did not indicate whether defendant’s acts of camping
were involuntary acts.
          By referring to the absence of facts needed for an
as-applied challenge, we do not imply our acceptance or
rejection of defendant’s constitutional theory—a theory that
is centered on an “involuntary act” as a matter of constitutionally protected status. We need not, and we do not,
address the Eighth Amendment—either directly or implicitly. It is simply enough to recognize that the record was
inadequate in the trial court to present the as-applied challenge that defendant urged, just as it is now inadequate for
this court to consider, address, and resolve that question,
in whole or in part, on appeal. We conclude that, lacking
the record necessary for this as-applied challenge, the trial
court did not err in denying the pretrial motion.

    9
      We need not address the procedural limitations of a demurrer or pretrial
motion to dismiss. See ORS 135.630 (demurrer standards); see also State v. Nistler,

, 

, rev den, 

 (2015) (demurrer standards); State v. Cervantes, 

, 

 (2009) (same); State
v. Weber, 

, 

 (2001) (demurrer and alternative
motion to dismiss).
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          Our task as an appellate court is to determine
whether the trial court erred in denying defendant’s pretrial
motion. We recognize that defendant asked the trial court to
“find … the Portland city camping ordinance unconstitutional and just leave it at that.” But, this is a criminal case,
not a declaratory judgment action. Accordingly, we do not
decide whether the Portland ordinance would or would not
violate the Eighth Amendment based on hypothetical facts.
In similar cases, we have declined to address constitutional
questions where the record was “too inconclusive to justify
the adoption of the constitutional rule urged by defendant.”
City of Portland v. Juntunen, 

, 

(1971) (declining to conclude that punishing an alcoholic for
his appearance in public while drunk constitutes cruel and
unusual punishment absent evidence that the defendant
was unable to avoid appearing in public while drunk). We
have cautioned that the development of judge-made constitutional law should proceed incrementally despite recognition
“that the bench and Bar might be well served by a decision
resolving [a] central constitutional issue.” State v. Herrera-Lopez, 

, 

, rev den, 

(2006) (declining to determine whether Sixth Amendment
rules announced in “Apprendi and Blakely apply to imposition of consecutive sentences” because “any decision” on
that point “would be dictum and would not have any effect”
on defendant, who would lose on appeal in any event). And,
in a different context, the Oregon Supreme Court recently
reminded us that, “[a]s a general matter, [the] court will
‘avoid reaching constitutional questions in advance of the
necessity of deciding them.’ ” Vasquez v. Double Press Mfg.,
Inc., 

, 

 (2019) (quoting State v.
Barrett, 

, 

 (2011)) (preferring
decision on a statutory basis). We adhere to those principles
here.
                 III.   RIGHT TO TRAVEL
        In her pretrial motion, defendant also argued that
the camping law imposed an unconstitutional restriction
on her fundamental right to travel. See City of Chicago v.
Morales, 

, 

, 

 (1999)
(recognizing “the freedom to loiter for innocent purposes”);
see also State v. Berringer, 

, 229
32                                                          State v. Barrett

P3d 615, rev den, 

 (2010) (discussing the right to
interstate travel). In her view, a “homeless person residing
or passing through Portland has no choice but to sleep outside” and, by criminalizing public camping, the ordinance
“wholly prevents homeless persons from residing in or visiting Portland.”
         If intended to be a facial challenge, defendant’s
argument has not persuaded us that Portland’s camping
law, which addresses all persons alike, violates the right
to travel of those who are unsheltered. See Berringer, 

 (rejecting argument that enforcement of
Oregon’s law against possession of marijuana, addressing
all persons alike, violated the right to travel). If intended to
be an as-applied challenge, the argument fails for lack of a
factual record for the reasons discussed.
                          IV. PREEMPTION
         At trial, defendant twice moved for a judgment of
acquittal on the charges of unlawful camping and IPO.10
Defendant argued that state law, ORS 203.077 and ORS
203.079, preempted the city’s camping restriction. In her
view, because the camping restriction was preempted, the
police officer’s order not to camp on public property was
not lawful, and a required element of the offense of IPO is
refusal “to obey a lawful order by the peace officer.” ORS
162.247(1)(b). The first of the two provisions, ORS 203.077,
states that all
     “municipalities and counties shall:
         “(1) Develop a policy that recognizes the social nature
     of the problem of homeless individuals camping on public
     property.

    10
       In her MJOA, defendant did not make preemption or posted notice under
ORS 203.077 and ORS 203.079 a basis to dismiss the charges of criminal trespass. Although she includes preemption and posted notice in her arguments
about trespass charges on appeal, that issue was not preserved in the trial court.
To the extent that she challenges the evidentiary basis of the charges of criminal
trespass, we reject the arguments without discussion.
    Defendant also argues about preemption and posted notice in her challenge on
appeal to denial of the pretrial motion on the camping charges, but she failed to
preserve those arguments by making them with her pretrial motion. Accordingly,
the arguments about preemption and posted notice on appeal relate only to denial
of her motion for judgment of acquittal on unlawful camping and IPO.
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      “(2) Implement the policy as developed, to ensure the
   most humane treatment for removal of homeless individuals from camping sites on public property.”
The second of the provisions, ORS 203.079 describes “what
those policies must include”:
      “(1) A policy developed pursuant to ORS 203.077 shall
   include, but is not limited to, the following:
      “(a) Prior to removing homeless individuals from an
   established camping site, law enforcement officials shall
   post a notice, written in English and Spanish, 24 hours in
   advance.
      “…
       “(3) A person authorized to issue a citation for unlawful camping under state law, administrative rule or city or
   county ordinance may not issue the citation if the citation
   would be issued within 200 feet of the notice described in
   this section and within two hours before or after the notice
   was posted.”
Defendant argued that the state had failed to present evidence that officers had posted a notice before ordering defendant to leave the park and had notified social services of the
need to arrange housing and other assistance.
         The trial court denied the motion. The court noted
that ORS 203.077 and ORS 203.079 were not part of the
state’s criminal code and did not present an obvious conflict
with local ordinances. The court also noted that ORS 203.077
and ORS 203.079 do not provide a remedy for a city’s failure
to comply with those policy statutes; more particularly, the
statutes do not provide that they “invalidate any criminal
charges that follow from violations of the city ordinance that
are observed by the—by local law enforcement.” Defendant
had not offered the court legislative history that would
suggest legislative intention to preempt local ordinances.
Therefore, the court was not persuaded that the legislature
intended ORS 203.077 and ORS 203.079 to preempt the
criminal ordinances on camping, such as PCC 14A.50.020.
         On appeal, defendant relies on ORS 203.079(1) and (3)
to assert that state law permits a person to camp on public property until the city posts a notice. She argues that
34                                                          State v. Barrett

the statute conflicts with PCC 14A.50.020, which proscribes
public camping without requiring such notice as an element
of the offense. Defendant concludes that, because the state
and local enactments conflict, the statute preempts PCC
14A.50.020. We disagree.
          Under a municipality’s home rule authority, a
“local law is valid and not preempted if it is authorized by
the local charter or by a statute, and if it does not contravene state or federal law.”11 Qwest Corp. v. City of Portland,

, 

 (2015), rev den, 

 (2016) (quoting Rogue Valley Sewer Services v. City
of Phoenix, 

, 

 (2015)) (internal
quotation marks and brackets omitted). A state law can
preempt a municipal law in two ways. First, “the state
might pass a law or laws expressly precluding all municipal regulation in an area, such that the state ‘occup[ies] the
field’ in that area.” 

 at 883 (quoting Rogue Valley Sewer
Services, 

). “A state statute will displace the
local rule where the text, context, and legislative history
of the statute ‘unambiguously expresses an intention to
preclude local governments from regulating’ in the same
area as that governed by the statute.” Rogue Valley Sewer
Services, 

-51 (quoting Gunderson, LLC v. City
of Portland, 

, 

 (2012) (emphasis in Rogue Valley Sewer Services)). Second, “state law will
preempt a municipal law if the laws conflict, such that they
‘cannot operate concurrently.’ ” Qwest Corp., 

 (quoting LaGrande/Astoria v. PERB, 

,

, adh’d to on recons, 

, 

(1978)). When “conducting that conflict analysis, we must
construe the local law ‘if possible, to be intended to function consistently with state laws.’ ” 

 (quoting LaGrande/
Astoria, 

).
         In this case, ORS 203.077 instructs cities and counties to develop and implement policies to “ensure the most
humane treatment for removal of homeless individuals
from camping sites on public property.” To that end, ORS
203.079(1) provides that a policy should include requirements

    11
       Home rule authority derives from Article XI, section 2, and Article IV, section 1(5), of the Oregon Constitution.
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for law enforcement when removing individuals and their
belongings from campsites, including posting a notice before
removing persons or property. In addition, ORS 203.079(3)
provides that a policy should require that a citation for
unlawful camping may not be issued “within 200 feet” of
the posted notice and “within two hours before or after the
notice was posted.” In order to determine that those statutes
preempt a local ordinance, it would be necessary to find that
the legislature intended that compliance with those policy
provisions was an element of proof of a camping offense in
the criminal enforcement of a local camping ordinance.

         Defendant does not assert that the text and context
unambiguously express a legislative intention to preempt
the field so as to preclude local governments from providing
criminal sanctions for public camping. Therefore, the question becomes whether PCC 14A.50.020 conflicts with the
notice provisions set out in ORS 203.079(1) or (3). In considering that question, we interpret the statute and the ordinance to determine “if they can function concurrently or if
they necessarily conflict.” Qwest Corp., 

.
“It is reasonable to interpret local enactments, if possible,
to be intended to function consistently with state laws, and
equally reasonable to assume that the legislature does not
mean to displace local civil or administrative regulation of
local conditions by a statewide law unless that intention is
apparent.” LaGrande/Astoria, 

 (emphasis
added; footnote omitted).

        An intention to displace local regulation is not
apparent from the text of ORS 203.077 or ORS 203.079. The
purpose of those two statutes is to require a city or county
to develop and implement a “policy” as to the “removal” of
homeless persons and the belongings that make a camping
site. Examined more closely, the statutes concern development of a “policy,” which would be understood to mean
“a definite course or method of action selected (as by a
government …)” or “a projected program consisting
of desired objectives and the means to achieve them.”
Webster’s Third New Int’l Dictionary 1754 (unabridged
ed 2002). That policy would concern the “removal” of persons and the belongings that comprise the camp site. ORS
36                                                          State v. 

.079(1)(d).12 Because ORS 203.077 and ORS 203.079
speak in terms of “policies,” the statutes do not prescribe or
limit criminal offenses themselves. The policy statutes do
not address what elements must comprise unlawful camping, nor do the statutes address the effect of a city’s violation
of a policy once adopted.
         Given that, if possible, we construe the ordinance
and statutes in a manner that permits each to operate without conflicting with the other, LaGrande/Astoria, 

, we conclude that a city can issue public camping citations independently of a policy enacted under ORS 203.079.
As a result, a city could be noncompliant with such a policy and might be subject to a remedy for compliance.13 But
noncompliance would not mean that ORS 203.077 and ORS
203.079 conflict with a local ordinance in prescribing the
terms of the offense of unlawful camping. Those statutes
do not preempt so as to foreclose prosecution of a camping
offense under PCC 14A.50.020. The prosecution need not
prove that the city complied with a policy developed in accordance with ORS 203.079 in order to prosecute a citation for
unlawful camping.
                            V. CONCLUSION
        For all of those reasons, we conclude that the trial
court did not err in denying defendant’s pretrial motion or
her motion for judgment of acquittal.
           Affirmed.
           ORTEGA, J., concurring.
        The trial court reached defendant’s Eighth Amendment challenge to the city’s public camping ordinance, concluding that “applying [it] to defendant does not violate the
     12
       In part, ORS 203.079(1)(d) provides:
         “All unclaimed personal property shall be given to law enforcement officials whether 24-hour notice is required or not. The property shall be stored
    for a minimum of 30 days during which it will be reasonably available to any
    individual claiming ownership.”
    13
       For example, the trial court suggested that “there’s a lot of different ways
to enforce that mandate from the state legislature, including they can cut off any
sort of state funding if the city of Portland is not in compliance with the statute
or the city’s policy is not in compliance with the statute.”
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prohibitions on cruel and unusual punishment in the Eighth
Amendment.” The court was unpersuaded that Robinson v.
California, 

, 

, 

 (1962),
and Powell v. Texas, 

, 

, 

 (1968), applied and concluded that the “choice-of-evils”
defense was the appropriate means for defendant to challenge the public camping charges against her. Nevertheless,
a majority of this court declines to address whether those
conclusions by the trial court were correct, on the basis that
doing so would require the assumption of hypothetical facts.
          Although I agree with the majority that the trial
court did not err in denying defendant’s pretrial motion—I
reject defendant’s contention that the fact that she is homeless is alone sufficient to decide her Eighth Amendment
challenge—and thus agree that we must affirm defendant’s
convictions, I write separately because the importance of
the issue deserves a fuller engagement with the merits. As
I see it, it is not hypothetical that the homeless in Portland
are subject to criminal punishment for a circumstance that
is, in many cases, beyond their control, and those in circumstances similar to those faced by defendant would benefit
from guidance by this court. Having examined Robinson,
Powell, and the two well-developed contemporary decisions from federal appellate courts on this issue, I disagree
with the trial court’s bases for rejecting defendant’s Eighth
Amendment argument. The city’s blanket prohibition of
public camping violates the Eighth Amendment when the
camping is an unavoidable consequence of being homeless.
         To explain why, I begin with the relevant constitutional law. A state has the authority to punish individuals for criminal conduct, but the “constitutional prohibition
against excessive or cruel and unusual punishments mandates that the State’s power to punish be exercised within
the limits of civilized standards.” Kennedy v. Louisiana, 

, 

, 

, modified on
denial of reh’g, 

, 

 (Mem), 

 (2008) (internal quotation marks omitted). In addition
to the Eighth Amendment limitation on the kind of punishment that may be imposed, and its mandate that punishment may not be grossly disproportionate to the severity
of the crime, the Eighth Amendment “imposes substantive
38                                                State v. Barrett

limits on what can be made criminal and punished as such.”
Ingraham v. Wright, 

, 

, 

 (1977) (emphasis added). That last limitation, the
Court has said, is “one to be applied sparingly.” 

         Robinson provides the foundation for defendant’s
argument that the city’s public camping prohibition fell
within that third limitation articulated by the Court in
Ingraham. The Robinson court invalidated, under the
Eighth Amendment, a California law making it a criminal
offense to “be addicted to the use of narcotics.” 

.
The Court reasoned that the California law was “not one
which punishe[d] a person for the use of narcotics, for their
purchase, sale or possession, or for antisocial or disorderly
behavior resulting from their administration.” 

.
That is, it did not punish any conduct but the mere fact of
being addicted to narcotics, i.e., it made “the ‘status’ of narcotic addiction a criminal offense.” 

 Further, the Court
recognized that, because narcotics addiction is an illness
or disease and, as such, can be “contracted innocently or
involuntarily,” “a state law which imprisons a person thus
afflicted as a criminal, even though he has never touched
any narcotic drug within the State or been guilty of any
irregular behavior there, inflicts a cruel and unusual punishment.” 

.
         In Powell, six years later and in a 4-1-4 divided
decision, the Court revisited Robinson when it assessed an
Eighth Amendment challenge to a Texas law that imposed
a $100 fine for being “found in a state of intoxication in
any public place.” 

. The trial court found that
the defendant was an alcoholic who had no control over his
drinking or appearing in public while drunk, but rejected the
defendant’s argument that, under the Eighth Amendment,
he could not be punished for involuntarily appearing in public while drunk. 

 The plurality opinion, which affirmed
the defendant’s conviction, interpreted Robinson as precluding only the criminalization of “status” and not the criminalization of conduct associated with status. 

. It
reasoned that the
     “entire thrust of Robinson’s interpretation of the Cruel and
     Unusual Punishment Clause is that criminal penalties
Cite as 

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   may be inflicted only if the accused has committed some
   act, has engaged in some behavior, which society has an
   interest in preventing, or perhaps in historical common
   law terms, has committed some actus reus. It thus does not
   deal with the question of whether certain conduct cannot
   constitutionally be punished because it is, in some sense,
   ‘involuntary’ ….”

 Thus, because, “[o]n its face the present case does not fall
within that holding, since appellant was convicted, not for
being a chronic alcoholic, but for being in public while drunk
on a particular occasion,” the plurality opinion upheld the
public intoxication law. Id. at 532.
         The four-Justice dissent concluded that Robinson
was broader in its reach: “Criminal penalties may not be
inflicted upon a person for being in a condition he is powerless to change.” Id. at 567 (Fortas, J., dissenting). The
dissent acknowledged that, unlike the statute in Robinson,
the public intoxication statute covers more than just status. Id. The dissent reasoned, however, that “the essential
constitutional defect here is the same as in Robinson, for in
both cases the particular defendant was accused of being
in a condition which he had no capacity to change or avoid.”
Id. at 568. That is, the state cannot punish a person for
actions that are intertwined with “the syndrome or disease
of alcoholism.” Id. at 559 n 2 (distinguishing public intoxication from crimes such as driving while intoxicated, which
“require independent acts or conduct [that] do not typically
flow from and are not part of the syndrome of the disease of
chronic alcoholism”).
           In a concurring opinion, Justice White considered
the voluntariness or volitional nature of the conduct in question. Id. at 548-51 (White, J., concurring in the judgment).
He reasoned that, if sufficient evidence is presented to show
that the conduct at issue was involuntary due to one’s condition, the Eighth Amendment prohibits criminalization of
that conduct. However, he concurred with the plurality’s
affirmance of the conviction because, although the record
supported a finding that the defendant involuntarily drank,
nothing in the record suggested that the defendant—who
had a home and a wife—was compelled to be drunk in public. Id. at 553. The defendant’s circumstances, Justice White
40                                                State v. Barrett

noted, were different from those of many chronic alcoholics
who are also homeless:
     “For all practical purposes the public streets may be home
     for these unfortunates, not because their disease compels
     them to be there, but because, drunk or sober, they have
     no place else to go and no place else to be when they are
     drinking. This is more a function of economic station than
     of disease, although the disease may lead to destitution and
     perpetuate that condition. For some of these alcoholics I
     would think a showing could be made that resisting drunkenness is impossible and that avoiding public places when
     intoxicated is also impossible.”
Id. at 551.
         The Ninth Circuit was persuaded by Justice White’s
approach in Powell when it addressed a 

challenge by homeless individuals who had been cited or
arrested for violating a City of Los Angeles ordinance that
made it illegal to sit, lie, or sleep on the city’s sidewalks and
streets at all times. Jones v. City of Los Angeles, 

 (9th Cir 2006), vac’d, 

 (2007). There, in
reviewing the district court’s grant of summary judgment to
the city on grounds that the ordinance in question penalized
conduct, not status, the Ninth Circuit considered the undisputed factual record that indicated, among other things,
the pervasive homelessness problem in Skid Row (where the
city’s homeless population was concentrated), and that for
“the approximately 11,000 - 12,000 homeless individuals
in Skid Row, space is available in [single-room occupancy]
hotels, shelters, and other temporary or transitional housing for only 9000 or 10,000, leaving more than 1000 people
unable to find shelter each night.” Id. at 1122.
         Persuaded by the reasoning supplied by the Court
in Robinson, and by the dissent and Justice White’s concurrence in Powell, the Ninth Circuit held that “the involuntariness of the act or condition the City criminalizes is
the critical factor delineating a constitutionally cognizable status, and incidental conduct which is integral to and
an unavoidable result of that status, from acts or conditions that can be criminalized consistent with the Eighth
Amendment.” Id. at 1132. That is, the court explained that
“five Justices in Powell understood Robinson to stand for
Cite as 

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the proposition that the Eighth Amendment prohibits the
state from punishing an involuntary act or condition if it is
the unavoidable consequence of one’s status or being.” Id. at
1135. Accordingly, because the plaintiffs “made a substantial showing that they were unable to stay off the streets on
the night[s] in question,” the enforcement of the city’s ordinance “at all times and in all places against homeless individuals who are sitting, lying, or sleeping in Los Angeles’s
Skid Row because they cannot obtain shelter violates the
Cruel and Unusual Punishment Clause.” Id. at 1136.
         Although the Jones decision was vacated when the
parties settled, the Ninth Circuit returned to the same conclusions in Martin v. City of Boise, 

 (2019), cert
den sub nom Boise, ID v. Martin, 19-247, 

(US Dec 16, 2019). In Martin, the plaintiffs were homeless
residents of the City of Boise who had been cited by the
police for violating the city’s ordinance that made it a misdemeanor offense to camp in public at all times. 

. The Ninth Circuit, reaffirming its holding in Jones,
held that “an ordinance violates the Eighth Amendment
insofar as it imposes criminal sanctions against homeless
individuals for sleeping outdoors, on public property, when
no alternative shelter is available to them.” 

.1
         It is important to emphasize that the Martin court’s
holding is limited; it applies “only that ‘so long as there is a
     1
       The Fourth Circuit recently came to a similar view of the Eighth
Amendment, Robinson, and Powell. Manning v. Caldwell for City of Roanoke, 

 (4th Cir 2019). In Manning, the en banc court considered a Virginia
law that prohibited the possession, purchase, or consumption of alcohol by a person who is subject to a civil order—an interdiction—when the person has been
convicted of driving while intoxicated or designated as a “habitual drunkard.”

. Among other constitutional challenges in that case, homeless persons who were alcoholics and had been prosecuted for violating their interdiction
orders argued that the interdiction law criminalized their status as homeless
alcoholics and was thus, under the Eighth Amendment, cruel and unusual punishment. 

 The court reversed the district court’s dismissal of the suit for failure to state a claim, concluding that, under the Eighth Amendment, the habitual
drunkard statute punished “conduct that is an involuntary manifestation of an
illness.” 

 (emphasis in original). Notable is the court’s view of federal
circuit opinions on the issue. Responding to the principal dissent’s suggestion
that the majority’s conclusion “ ‘runs headlong into a large chorus of circuit
court opinions’ holding to the contrary,” the court pointed to the Ninth Circuit’s
Martin decision and characterized the two opinions from the Eleventh Circuit
as “cursory and unpersuasive.” Manning, 

 n 17 (quoting 

(Wilkinson, J., dissenting)).
42                                               State v. Barrett

greater number of homeless individuals in [a jurisdiction]
than the number of available beds [in shelters],’ the jurisdiction cannot prosecute homeless individuals for ‘involuntarily sitting, lying, and sleeping in public.’ ” Id. at 617 (quoting Jones, 

). Put differently, under Martin,
the Eighth Amendment prohibits a local government from
enforcing a public camping ordinance that is unrestricted
to particular places or times against a homeless person who
does not have access to adequate temporary shelter. The
Martin holding “ ‘in no way dictate[s]’ ” to a local government
“ ‘that it must provide sufficient shelter for the homeless, or
allow anyone who wishes to sit, lie, or sleep on the streets
… at any time and at any place.’ ” 

 (quoting Jones, 

). Nor does the holding “cover individuals who
do have access to adequate temporary shelter, whether they
have the means to pay for it or because it is realistically
available to them for free, but who choose not to use it.”

 at 617 n 8.
         With that said, Justice White’s concurrence in
Powell comes the closest to providing a guiding United
States Supreme Court opinion for resolving the constitutionality of a public camping ordinance enforced against
the homeless. To begin with, Justice White and the plurality did not achieve consensus in Powell on the reach of
Robinson and the Eighth Amendment. When “a fragmented
Court decides a case and no single rationale explaining
the result enjoys the assent of five Justices, the holding of
the Court may be viewed as that position taken by those
Members who concurred in the judgmen[t] on the narrowest grounds.” Marks v. United States, 

, 

, 

 (1977) (internal quotation mark
omitted). Consequently, under the Marks rule, the precedential effect of the Powell plurality opinion is constrained
by its particular facts, and neither the plurality opinion nor
Justice Black’s concurrence compels the view advanced by
Judge James’s opinion in this case. 302 Or App at 49-53
(James, J., concurring). Although I do not necessarily agree
with the Fourth Circuit’s conclusion that Justice White’s
concurrence “offers the narrowest basis for the Court’s
fractured decision, and so is controlling under the Marks
rule,” Manning v. Caldwell, 

 (2019), I find
Cite as 

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that Justice White’s concurrence, when combined with the
reasoning of the four justices in the Powell dissent, is the
appropriate basis to approach the Eighth Amendment issue
presented to us by defendant. That is, with those two opinions, five justices agreed that a law that criminalizes an act
that is an unavoidable byproduct of a person’s status—as
opposed to one that criminalizes status itself—still runs
afoul of the Eighth Amendment’s stricture against cruel
and unusual punishment.
          Turning to the issue at hand, I start by concluding
that homelessness is a status for the purpose of deciding
the Eighth Amendment challenge here. Under Robinson, it
is cruel and unusual under the Eighth Amendment to punish the status of narcotic addiction. 

 (characterizing the law in question as a “statute which makes the
‘status’ of narcotic addiction a criminal offense”). Likewise,
the Court in Powell recognized that a law that sought to
punish the status of alcohol addiction would similarly violate the Eighth Amendment. 

 (“On its face the
present case does not fall within [Robinson’s] holding, since
appellant was convicted not for being a chronic alcoholic, but
for being in public while drunk on a particular occasion.”).
I would extend those holdings to criminalizing the status of
being homeless. As the Jones court put it:
   “Homelessness is not an innate or immutable characteristic, nor is it a disease, such as drug addiction or alcoholism.
   But generally one cannot become a drug addict or alcoholic,
   as those terms are commonly used, without engaging in
   at least some voluntary acts (taking drugs, drinking alcohol). Similarly, an individual may become homeless based
   on factors both within and beyond his immediate control,
   especially in consideration of the composition of the homeless as a group: the mentally ill, addicts, victims of domestic violence, the unemployed, and the unemployable.”

. In addition to the involuntary and voluntary causes of homelessness, it is unlikely that a person
chooses to remain homeless. That is, the causes of homelessness—mental illness, addiction, economic conditions—
similarly remain to pose substantial, if not in some cases,
insurmountable, obstacles to obtaining a “decent, safe,
stable and permanent place to live that is fit for human
44                                            State v. Barrett

habitation” while a person is in the throes of homelessness.
ORS 458.528 (so defining homelessness).
         Further, the act at issue here—sleeping or resting—
is fundamental to the human condition, as it involves a
human act or condition that is life sustaining and biologically unavoidable. See Martin, 

 (explaining that the conduct at issue is a “ ‘universal and unavoidable consequence[ ] of being human’ ” (quoting Jones, 

)). Sleeping or resting is inescapable, and, if
the only means to satisfy that human necessity is by violating the city’s public camping ordinance, any distinction
drawn between status and conduct violating the ordinance
is illusory. See Jones, 

 (reasoning that any
“conduct at issue here is involuntary and inseparable from
status—they are one and the same, given that human beings
are biologically compelled to rest, whether by sitting, lying,
or sleeping”).
          Consequently, if a person is homeless, and the city
does not have temporary shelter available, then complying
with PCC 14A.50.020 is impossible. PCC 14A.50.020 prohibits setting up or remaining in or at a campsite as a temporary
place to live on all of the city’s public property at all times
of day. Camping on private property without permission is
not an option. Homeless persons do not, or should not, have
to leave the city to comply with PCC 14A.50.020. See Harry
Simon, Towns without Pity: A Constitutional and Historical
Analysis of Official Efforts to Drive Homeless Persons from
American Cities, 66 Tul L Rev 631, 634-35 (1992) (citing
Papachristou v. City of Jacksonville, 

, 

, 

 (1972), and Kolender v. Lawson, 

, 

, 

 (1983), for the proposition that those decisions invalidating vagrancy and loitering laws as impermissibly vague in violation of the Due
Process Clause of the Fourteenth Amendment effectively
caused local governments to shift from using those laws as
a way to drive homeless persons from cities to enacting laws
like sleeping or camping in public); Dunn v. Blumstein, 

, 

, 

 (1972) (recognizing
that “freedom to travel through the United States has long
been recognized as a basic right under the Constitution”).
Hence, it is my view that the Eighth Amendment does not
Cite as 

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permit punishing a homeless a person for public camping
when the camping is an unavoidable consequence of being
homeless.
         I do not come to that conclusion lightly, as I recognize that the category of limitations under the Eighth
Amendment implicated here, namely, “what can be made
criminal and punished as such,” is to “be applied sparingly.”
Ingraham, 

. However, when the derivative conduct is a human necessity, punishing a homeless person for
violating PCC 14A.50.020 is one of those rare circumstances
in which what can be punished runs afoul of the Eighth
Amendment. The core premise of the Eighth Amendment is
that “punishment be exercised within the limits of civilized
standards.” Kennedy, 

. Because it is impossible
for a homeless person to comply with PCC 14A.50.020 when
no temporary shelter is available, that conduct is missing
the moral culpability required to justify criminal punishment, and, thus, criminalizing public camping when it is an
unavoidable consequence of homelessness does not fit within
those standards, particularly when it affects the most vulnerable among us—the mentally ill, the drug addicted, marginalized communities, casualties of economic crises, and
victims of domestic violence.
          It is worth mentioning that the Ninth Circuit’s
Martin holding is the law of the land in Oregon. Local governments and their officials are examining the viability of
ordinances prohibiting camping on public property given the
exposure to lawsuits and the threat of litigation. Because
local governments are already contending with the legality
of enforcing public camping ordinances against the homeless if temporary shelter is unavailable, or the ordinance to
be enforced covers all public property at all times of day, any
conclusions or comments on this court’s part as to the constitutionality of the city’s public camping ordinance is not
as impactful as it would be otherwise. Further, given that
backdrop of civil liability for the enforcement of public camping ordinances,2 it is, in my view, appropriate for litigants,
trial courts, and appellate courts to explore a procedural

    2
      Because the United States Supreme Court denied certiorari in Martin, it is
likely that that will be the case in Oregon for the foreseeable future.
46                                            State v. Barrett

pathway for resolving the Eighth Amendment challenge
raised here in criminal proceedings.
         I am also skeptical that the availability of a choice-of-evils defense, under ORS 161.200, cures the constitutional defect of criminalizing public camping when the
camping is an unavoidable consequence of being homeless.
This court has explained that entitlement to an instruction
on the defense requires a showing of “evidence that …
criminal conduct was necessary as an emergency measure
to avoid imminent injury” and, when “the defense is properly raised, the trier of fact may balance the desirability of
avoiding the injury against the desirability of avoiding what
the law seeks to prevent by making that conduct criminal.”
State v. Neubauer, 

, 

 (1984).
In this instance, PCC 14A.50.020 is violated when a person sets up a campsite on public property, and a defendant
would have to offer evidence that the proscribed conduct was
required as an emergency measure to avoid an imminent
injury. Although public camping is inescapable when there
are no other options, public camping in that circumstance
is not necessarily an emergency measure to avoid imminent
injury. That is, the risk of injury from not going to sleep with
one’s belongings essential for that act, depending on the circumstances, may be uncertain or speculative, or the risk of
injury may be one that accrues over time. See State v. Freih,

, 

 (2015) (“To show that the
injury that the defendant sought to avoid was ‘imminent’
within the meaning of the statute, defendant was required
to show that the threat of injury existed at the time that
defendant committed his offense.” (Emphasis in original.)).
         I emphasize that, like the Ninth Circuit’s holding,
my conclusion regarding PCC 14A.50.020 is limited. The
city’s public camping ordinance applies to all public property within the city at all times of day, and, as defendant
acknowledges, the city can enact an ordinance proscribing
camping in public at certain times (for example, by requiring persons to remove campsites by a certain time in the
morning) or in certain areas (like Chapman Park, where
defendant was cited) or excluding campsites placed in public walkways without violating the Eighth Amendment.
Moreover, the Eighth Amendment does not prohibit a local
Cite as 

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government from enacting ordinances regarding a campsite’s sanitary conditions. Further, there may be circumstances when shelter beds are available, but a homeless person charged with public camping has nevertheless decided
that he or she simply does not like the available shelter or
shelters and chooses to camp on public property.3 It also
needs to be said that the limited conclusion I make here is
not an attempt to address the homeless crisis. My conclusions here are confined to the constitutionality of the city’s
public camping law when it is applied to the homeless and
cannot be obeyed.
           Powers, J., joins in this concurrence.
           JAMES, J., concurring.
        Every member of this court agrees that the trial
court judgment in this case should be affirmed. We differ,
however, in the rationale for that affirmance. Unfortunately,
I must add to this fracture. The majority and the concurrence by Judge Ortega each forge separate pathways to
affirmance. Regrettably, I cannot join either, but for different reasons, as I will explain.
         Judge Ortega, drawing upon the rationale articulated by the Ninth Circuit in Martin v. City of Boise, 

 (9th Cir 2018), opinion amended and superseded
on denial of reh’g, 

 (9th Cir 2019), concludes that
“it is my view that the Eighth Amendment does not permit
punishing a homeless person for public camping when the
camping is an unavoidable consequence of being homeless.”
    3
      The court in Martin noted that its
    “holding does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it
    is realistically available to them for free, but who choose not to use it. Nor do
    we suggest that a jurisdiction with insufficient shelter can never criminalize
    the act of sleeping outside. Even where shelter is unavailable, an ordinance
    prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible. See Jones, 

. So, too, might an ordinance barring the obstruction of public rights
    of way or the erection of certain structures. Whether some other ordinance
    is consistent with the Eighth Amendment will depend, as here, on whether
    it punishes a person for lacking the means to live out the ‘universal and
    unavoidable consequences of being human’ in the way the ordinance prescribes. 

.”

 n 8.
48                                               State v. Barrett

302 Or App at 44-45 (Ortega, J., concurring). However, she
reasons, in this case the factual record is insufficient under
Martin to hold that the enforcement of the Portland City
Code (PCC) ordinance at issue against defendant constituted an Eighth Amendment violation. As I will discuss, I
am unpersuaded by Martin and would not adopt its reasoning, and accordingly, I do not join in that construction of the
Eighth Amendment.
         The majority does not reach the merits of the Eighth
Amendment challenge, instead affirming based on judicial
discretion. The majority accepts the parties’ characterization of this case as presenting an “as-applied” constitutional
challenge, and subsequently concludes that the factual
record is insufficient to reach the merits of the as-applied
challenge:
        “We begin and end with the recognition that, with
     her pretrial motion, defendant did not develop a factual
     record that was sufficient to permit the court to determine
     whether conviction of defendant under PCC 14A.050.020
     would violate the Eighth Amendment as applied to her.”
302 Or App at 30.
         I agree that the lack of a developed factual record
should prudentially preclude a court from reaching the merits of an as-applied constitutional challenge. Unfortunately,
and for reasons I will discuss, we cannot treat this case as
an as-applied challenge. This case is a classic example of
the grey area that exists between facial and as-applied challenges, having characteristics of both. In such instances, the
United States Supreme Court has held that, when faced with
a federal constitutional challenge, a court must look to the
nature of the relief, and if the holding sought would extend
beyond the individual litigant, then a court must treat the
issue under the standards for a facial challenge. I conclude
that is the case here. Accordingly, I do not join the majority
opinion, which holds that deficiencies in the factual record
preclude us reaching the merits. As a facial challenge, any
deficiency in the factual record is not an impediment to the
analysis we must conduct, which simply involves comparing the statute against the Eighth Amendment. Therefore, I
would affirm on the merits.
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               THE EIGHTH AMENDMENT
         To help explain why I do not join with Judge Ortega,
I must briefly discuss my understanding of what limits the
Eighth Amendment places on states. In our federalist system, it is the state that is the primary sovereign, possessed
of plenary power, as opposed to the limited enumerated
power of the federal government. This plenary power is most
commonly described as the “police power.”
   “The Constitution may restrict state governments—as it
   does, for example, by forbidding them to deny any person
   the equal protection of the laws. But where such prohibitions do not apply, state governments do not need constitutional authorization to act. The States thus can and
   do perform many of the vital functions of modern government—punishing street crime, running public schools, and
   zoning property for development, to name but a few—even
   though the Constitution’s text does not authorize any government to do so. Our cases refer to this general power of
   governing, possessed by the States but not by the Federal
   Government, as the ‘police power.’ ”
National Federation of Independent Business v. Sebelius,

, 

, 

 (2012)
(internal citation omitted). The states traditionally have had
great latitude under their police powers to legislate as “ ‘to
the protection of the lives, limbs, health, comfort, and quiet
of all persons.’ ” Metropolitan Life Ins. Co. v. Massachusetts,

, 

, 

 (1985) (quoting Slaughter-House Cases, 83 US (16 Wall) 36, 62, 

 (1872), in turn quoting Thorpe v. Rutland & Burlington
R. Co., 27 Vt 140, 149 (1855)).
          The Eighth Amendment provides that “excessive
bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.” The amendment uses past participles—fines imposed and punishments inflicted. Accordingly, the amendment limits the
effect of a state’s use of its police power after it has been
used and is not generally interpreted to impose a prohibition on the use of that police power in the first instance.
The “primary purpose” of the Eighth Amendment’s Cruel
and Unusual Punishment Clause “has always been considered, and properly so, to be directed at the method
50                                            State v. Barrett

or kind of punishment imposed for the violation of criminal statutes.” Powell v. Texas, 

, 

, 

 (1968). Accordingly, the overwhelming number of cases construing the limits imposed on the
state by the Eighth and Fourteenth Amendments concern
the penalty imposed, assessing whether it was cruel and
unusual or disproportionate. There is one very narrow
exception.
         The United States Supreme Court has recognized
that the Eighth Amendment “imposes substantive limits on
what can be made criminal and punished as such,” however, those limits are “to be applied sparingly.” Ingraham v.
Wright, 

, 

, 

 (1977)
(internal citation omitted). So sparingly, in fact, that only
one case has ever found the Eighth Amendment to prohibit a
state from using its plenary powers to regulate its citizens,
and, in that lone instance, the regulation was not of conduct,
but one that “ma[de] the ‘status’ of narcotic addiction a criminal offense.” Robinson v. California, 

, 

, 

 (1962).
          The statute in Robinson criminalized the status of
being a drug addict, regardless whether an individual actually used or possessed drugs. 

. In essence, the
state sought to penalize its citizens not based on their acts,
but their existence. In that unique factual scenario, the Court
determined that, because “narcotic addiction is an illness
… which may be contracted innocently or involuntarily,
… a state law which imprisons a person thus afflicted as
criminal, even though he has never touched any narcotic
drug” violates the Eighth Amendment. 

.
         The Court revisited Robinson in Powell, 

, this time considering a Texas law that banned public
drunkenness. A four-justice plurality interpreted Robinson
to stand for the narrow proposition that a state could not
criminalize one’s status. 

. The plurality held that,
because the Texas statute criminalized conduct—being
drunk in public—rather than the status of alcoholism, the
Eighth Amendment did not prohibit the state from exercising its police powers in enacting and enforcing the law.

.
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          Four dissenting justices interpreted Robinson to
stand for a broader principle, namely, that “criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change.” Id. at 567 (Fortas, J., dissenting). For the dissent, the statute’s focus on an act was a
veil for status:
   “But the essential constitutional defect here is the same as
   in Robinson, for in both cases the particular defendant was
   accused of being in a condition which he had no capacity to
   change or avoid. The trial judge sitting as trier of fact found
   upon the medical and other relevant testimony, that Powell
   is a ‘chronic alcoholic.’ He defined appellant’s ‘chronic alcoholism’ as ‘a disease which destroys the afflicted person’s
   will power to resist the constant, excessive consumption
   of alcohol.’ He also found that ‘a chronic alcoholic does not
   appear in public by his own volition but under a compulsion symptomatic of the disease of chronic alcoholism.’ I
   read these findings to mean that appellant was powerless
   to avoid drinking; that having taken his first drink, he
   had ‘an uncontrollable compulsion to drink’ to the point of
   intoxication; and that, once intoxicated, he could not prevent himself from appearing in public places.”
Id. at 567-68 (Fortas, J., dissenting).
         Justice White concurred in the judgment affirming the conviction based on a defect in the factual record,
specifically, that the defendant had not shown that he was
unable to stay off the streets on the night he was arrested.
Id. at 552-53 (White, J., concurring). But, in so doing, White
offered language that, while dicta, indicated at least some
support for the reasoning of the dissent:
   “It is also possible that the chronic alcoholic who begins
   drinking in private at some point becomes so drunk that
   he loses the power to control his movements and for that
   reason appears in public. The Eighth Amendment might
   also forbid conviction in such circumstances, but only on
   a record satisfactorily showing that it was not feasible for
   him to have made arrangements to prevent his being in
   public when drunk and that his extreme drunkenness sufficiently deprived him of his faculties on the occasion in
   issue.”
Id. at 551-52 (White, J., concurring).
52                                           State v. Barrett

         Nevertheless, White’s opinion in Powell stands alone.
As far as United States Supreme Court jurisprudence is
concerned, Robinson remains a solitary holding. The only
successful facial challenge to the upfront use of a state’s
police power—Robinson—is limited to when that legislation
targets status, not acts. Subsequently, the Court has never
declared that the Eighth Amendment prohibits a state from
exercising its police power to regulate acts, even purportedly “involuntary” acts.

         The 4-1-4 nature of Powell resulted in uncertainty.
Advocates and commentators have attempted to build upon
Robinson, the Powell dissent, and White’s concurrence,
arguing that certain involuntary acts are indistinguishable
from status. However, all of that discussion has occurred
at the lower court level, such as before the Ninth Circuit in
Martin. In Martin, 

, the Ninth Circuit construed the Eighth Amendment’s applicability to a specific
city code provision. There, the Boise city code at issue, former section 9-10-02 (2009), amended and renumbered as section 7-3A-2A (2014), made it a misdemeanor “for any person
to use any of the streets, sidewalks, parks or public places
as a camping place at any time.” “Camping,” for purposes of
that statute, was defined to include “the use of public property as a temporary or permanent place of dwelling, lodging or residence, or as a living accommodation at any time
between sunset and sunrise, or as a sojourn.” 

 (emphasis
added).

          Martin held that enforcement of the ordinance “violates the Eighth Amendment insofar as it imposes criminal
sanctions against homeless individuals for sleeping outdoors,
on public property, when no alternative shelter is available
to them.” Martin, 

. In reaching that result,
the Ninth Circuit relied upon its earlier, though vacated,
opinion in Jones v. City of Los Angeles, 

(9th Cir 2006), vac’d, 

 (9th Cir 2007). There,
the court held that “so long as there is a greater number
of homeless individuals in Los Angeles than the number of
available beds [in shelters]” Los Angeles could not enforce
an ordinance against homeless individuals “for involuntarily sitting, lying, and sleeping in public.” Id.
Cite as 

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         I am unpersuaded by Martin, for many of the reasons
discussed by Justice Marshall in Powell, that “[t]raditional
common-law concepts of personal accountability and essential considerations of federalism” preclude such an interpretation of the Eighth Amendment. Powell, 

.
Otherwise, there would be no “limiting principle that would
serve to prevent this Court from becoming, under the aegis
of the Cruel and Unusual Punishment Clause, the ultimate
arbiter of the standards of criminal responsibility, in diverse
areas of the criminal law, throughout the country.” 

.
         Similarly, I find the words of Justice Black, in his
concurring opinion in Powell, compelling. He agreed with
the plurality that Robinson was “explicitly limited … to
the situation where no conduct of any kind is involved.”

 (Black, J., concurring). He cautioned that the
“revolutionary doctrine of constitutional law” advocated by
the Powell dissent would “significantly limit the States in
their efforts to deal with a widespread and important social
problem” and would take the Court “far beyond the realm
of problems for which we are in a position to know what
we are talking about.” 

. Black thus declined to
“depart[ ] from … the premise that experience in making
local laws by local people themselves is by far the safest
guide for a nation like ours to follow.” 

.
         I find the federalism concerns referenced by
Marshall and Black especially present under the Martin
rationale, in that Martin does not bar a state’s police power
entirely; rather, it preconditions it. Under Martin, whether a
state has an inherent police power to regulate conduct and
enforce that regulation against certain persons is a function of expenditures. If a local municipality spends sufficient
monies, it has the police power to regulate, if it does not, the
police power does not exist. That construction of the Eighth
Amendment is unprecedented and represents a profound
alteration to the federalist model of our nation.
            FACIAL VERSUS AS-APPLIED
           CONSTITUTIONAL CHALLENGES
        Having discussed the Eighth Amendment, and why
I do not join Judge Ortega, I must now explain why I am
54                                            State v. Barrett

equally unable to join the majority. To do so, I must briefly
discuss the nature of constitutional challenges.
         Constitutional challenges are routinely, though
somewhat imprecisely, conceived of as fitting neatly within
one of two boxes: facial challenges and as-applied challenges.
Typically, a court considering a facial constitutional challenge compares the text of a statute against a constitutional
provision asking if “ ‘no set of circumstances exists under
which the Act would be valid,’ i.e., that the law is unconstitutional in all of its applications.” Washington State Grange
v. Washington State Republican Party, 

, 

, 

 (2008) (internal citation omitted).
Facial challenges present questions of law. They are largely
not fact dependent, and a reviewing court typically does not
need to defer ruling on the merits due to a deficiency in the
factual record.
         On the other hand, “[a]n as-applied challenge consists
of a challenge to the statute’s application only as-applied to
the party before the court.” Minnesota Majority v. Mansky,

 (8th Cir 2013) (internal quotation marks
omitted). “If an as-applied challenge is successful, the
statute may not be applied to the challenger, but is otherwise enforceable.” 

 (internal quotation marks omitted).
Consequently, an as-applied challenge is a fact-dependent
inquiry. Richmond Med. Ctr. for Women v. Herring, 

 (4th Cir 2009) (quoting Richard H. Fallon,
Jr., As-Applied and Facial Challenges and Third-Party
Standing, 113 Harv L Rev 1321, 1331 (2000)). A court may
properly defer ruling on an as-applied challenge when the
factual record is incomplete, because as-applied ruling must
be “based on a developed factual record [showing the] application of a statute to a specific person.” Educ. Media Co. at
Va. Tech, Inc. v. Insley, 

, 298 n 5 (4th Cir 2013)
(internal citation omitted).
         However, as alluded to, facial versus as-applied
classifications are not necessarily discrete boxes. As the
United States Supreme Court has cautioned, “the distinction between facial and as-applied challenges is not so well
defined that it has some automatic effect or that it must
always control the pleadings or disposition in every case
Cite as 

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involving a constitutional challenge.” Citizens United v.
Federal Election Comm’n, 

, 

, 

 (2010). The important inquiry—and the truest
indicator of whether a case presents a facial or as-applied
challenge—is whether the claim and the relief that would
follow is beyond the particular circumstances of the plaintiff.
        In John Doe No. 1 v. Reed, 

, 

, 

 (2010), the United States Supreme
Court took up the constitutionality of the disclosure, via
the State of Washington’s Public Records Act, of the names
and addresses of initiative petition signers. The parties disagreed about whether the issue before the Court was a facial
or an as-applied challenge. As the Court explained:
   “It obviously has characteristics of both: The claim is ‘as
   applied’ in the sense that it does not seek to strike the PRA
   in all its applications, but only to the extent it covers referendum petitions. The claim is ‘facial’ in that it is not limited
   to plaintiffs’ particular case, but challenges application of
   the law more broadly to all referendum petitions.
       “The label is not what matters. The important point is
   that plaintiffs’ claim and the relief that would follow …
   reach beyond the particular circumstances of these plaintiffs. They must therefore satisfy our standards for a facial
   challenge to the extent of that reach.”

 (internal citation omitted).
          Since Citizens United and John Doe No. 1, federal
courts have been increasingly sensitive to the nebulous distinction between facial versus as-applied claims. See, e.g.,
Center for Individual Freedom v. Madigan, 

 (7th Cir 2012) (“It is true that facial challenges and
as-applied challenges can overlap conceptually.”); Am. Fed’n
of State, Cty. & Mun. Emps. Council 79 v. Scott, 

 (11th Cir 2013) (“[T]he line between facial and as-applied
relief is a fluid one, and many constitutional challenges may
occupy an intermediate position on the spectrum between
purely as-applied relief and complete facial invalidation.”);
Showtime Entm’t, LLC v. Town of Mendon, 

(1st Cir 2014) (“[T]his case highlights the sometimes nebulous nature of the distinction between facial and as-applied
challenges, for Showtime’s challenge does not fit neatly
56                                                  State v. Barrett

within our traditional concept of either type of claim.”);
Catholic Leadership Coal. of Tex. v. Reisman, 

 (5th Cir 2014) (noting that “the precise boundaries of
facial and as-applied challenges are somewhat elusive—
certain challenges can have characteristics of both”).
         Appling Citizens United and John Doe No. 1 here,
I conclude that this case presents elements of both a facial
as well as an as-applied challenge. Though this issue was
raised in an individual criminal case, and defendant sought
the dismissal of particular discrete charges, and though the
parties call it an as-applied challenge, the relief sought goes
far beyond this one defendant. At trial, defendant did not
challenge a specific fine or punishment imposed upon her.
Her challenge was raised pretrial, before any punishments
had been imposed. Her argument was that the state’s inherent police power was limited, by operation of the Eighth
Amendment, because of her membership in a class of persons: the homeless. That type of pretrial challenge, inviting
a court to limit that state’s police power proscriptively due
to class membership, obviously carries with it legal effects
beyond the individual litigant.
         We need look no further than defendant’s own
pleading, which asked the trial court to conclude that
“Portland’s camping ordinance is unconstitutional as applied
to the homeless under the Eighth Amendment as cruel and
unusual punishment.” (Emphasis added.) Defendant did not
argue that the ordinance was unconstitutional as applied
to her, based upon her unique traits, but rather that it was
unconstitutional as applied to a broader class of persons to
which she identified.
         Further, at oral argument on the motion, counsel
specifically asked the trial court to broadly declare the ordinance unconstitutional:
        “[DEFENSE COUNSEL]: Thank you, Your Honor.
     Before we get to the actual argument about why the
     Portland camping ordinance is unconstitutional, I just sort
     of want to address quickly the procedural posture. When
     we initially filed this motion, we filed it as a motion to dismiss. And then when we filed our reply, we included in our
     footnote how, uhm, it perhaps should have been filed as a
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   demurrer under [ORS] 135.630 (4). Now that we’re here
   this morning, we have had a chance to sort of re-evaluate
   that, and re-evaluate the posture that this motion is being
   brought in.
      “As we know 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.
   Uhm, 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.”
       Later, again, counsel argued that the ordinance
was broadly unconstitutional:
      “[DEFENSE COUNSEL]: … And so as we set out in
   both our initial motion and in our reply, there are really
   four arguments that we’re bringing. And that is that the
   Portland City Code 14A.020.050 is unconstitutional. It is
   unconstitutional on four grounds.
      “And that is that it constitutes cruel and unusual punishment as applied to Ms. Barrett who is a—because it
   punishes her for her status of being a homeless citizen in
   the city of Portland. Second is that the camping ordinance
   violates the equal protection clause of the United States
   Constitution. And then third, the ordinance is overbroad.
   And then, fourth, the ordinance is vague.”
         In concluding arguments, defense counsel asked the
trial court to adopt the reasoning of Jones, and to similarly
invalidate the ordinance as applied to the greater homeless
population of the city:
       “[DEFENSE COUNSEL]: I think that going to—that
   in its application, it is a Portland City ordinance in its application, although on its face, it applies to everybody equally.
   It goes to the famous quote by (inaudible), or—you know,
   the law in its equal majesty prohibits sleeping—prohibits
   the rich and the poor alike from sleeping under a bridge.
      “And, here in the Portland just like in the Los Angeles
   ordinance where it prevents somebody from sleeping on
   the city streets, from sitting down on the sidewalk, so too
   does the Portland ordinance, with the exception that so
   long as that person does not place any bedding down on the
58                                                 State v. Barrett

     sidewalk or on the street, if it’s just down by themselves,
     then, okay, the ordinance does not apply.
         “But with the Portland homeless population, that seems
     to be, I guess that the phrase I used in my (inaudible) was
     that—is the difference by distinction, where if somebody is
     just trying to survive out in the city, then they are going to
     use something to protect themselves from the elements. So
     I think that’s why in application it’s applied just the same
     as the Los Angeles ordinance in preventing homeless individuals from engaging again in those basic necessities of
     life.”
         In determining whether this case presents a facial
or an as-applied federal constitutional challenge, it matters
not that the parties have labeled this an as-applied constitutional challenge. “The label is not what matters. The
important point is that plaintiffs’ claim and the relief that
would follow … reach beyond the particular circumstances
of these plaintiffs.” John Doe No. 1, 

. In many
respects, the caution expressed by the Supreme Court in
Bucklew v. Precythe, ___ US ___, 

,

 (2019), concerning an as-applied challenge
under the Eighth Amendment to an execution protocol is
instructive:
         “Here’s yet another problem with Mr. Bucklew’s argument: It invites pleading games. The line between facial
     and as-applied challenges can sometimes prove ‘amorphous,’ Elgin v. Department of Treasury, 

, 

, 

 (2012), and ‘not so well defined,’
     Citizens United, 

, 

. Consider an
     example. Suppose an inmate claims that the State’s lethal
     injection protocol violates the Eighth Amendment when
     used to execute anyone with a very common but not quite
     universal health condition. Should such a claim be regarded
     as facial or as-applied? In another context, we sidestepped
     a debate over how to categorize a comparable claim—one
     that neither sought ‘to strike [the challenged law] in all
     its applications’ nor was ‘limited to plaintiff’s particular
     case’—by concluding that ‘[t]he label is not what matters.’
     Doe v. Reed, 

, 

, 

 (2010). To hold now, for the first time, that choosing a
     label changes the meaning of the Constitution would only
     guarantee a good deal of litigation over labels, with lawyers
     on each side seeking to classify cases to maximize their
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   tactical advantage. Unless increasing the delay and cost
   involved in carrying out executions is the point of the exercise, it’s hard to see the benefit in placing so much weight
   on what can be an abstruse exercise.”
         This case presents that same trap of “pleading
games” prophesized in Bucklew. While the case has been
pleaded as an as-applied challenge, and while the specific
remedy sought in this case was the dismissal of charges, no
one involved in this litigation sought a ruling applicable only
to defendant. Here, defendant was the face of a constitutional
challenge that was intended to prevent enforcement of the
PCC ordinance against the homeless as a community. When
a party makes the decision to frame the litigation in this
manner, they cannot avoid the consequences of those choices
by labeling their challenge “as applied.” Rather, when a case
exists in the grey area of both a facial and an as-applied
challenge, the litigant must “satisfy our standards for a
facial challenge to the extent of that reach.” John Doe No. 1,

.
           When we apply the standards of a facial challenge,
resolution of this case becomes straightforward. Defendant
can only succeed in a facial challenge by showing that “ ‘no
set of circumstances exists under which the Act would be
valid,’ i.e., that the law is unconstitutional in all of its applications.” Washington State Grange, 

 (internal citation omitted). Pursuant to Robinson, a state’s prospective exercise of police power only violates the Eighth
Amendment “in all of its applications” when the statute on
its face penalizes status. Defendant conceded at trial that
she could not satisfy the burdens of such a facial challenge.
      “THE COURT: You concede that this ordinance on its
   face doesn’t violate any constitutional provision?
       “[DEFENSE COUNSEL]: On its face, the Portland
   City Code ordinance does not facially violate the constitution. That’s the way we just brought this as an as applied
   challenge.”
        That concession is well taken. Here, the PCC ordinance at issue defines public camping as “to set up, or to
remain in or at a campsite” which is, in turn, defined as a
place “where any bedding, sleeping bag, or other sleeping
60                                                         State v. Barrett

matter, or any stove or fire is placed, established, or maintained.” PCC 14A.50.020.1 The statute on its face plainly
targets acts, not status. The facial challenge must fail
under Robinson. I am, therefore, compelled to affirm on the
merits.
         In reaching my decision to affirm on the merits of
the Eighth Amendment claim, however, it bears emphasis
that the question before us is narrow. We are asked only
to assess the enforcement of Portland’s anticamping ordinance against the homeless using the yardstick of the
Eighth Amendment. Axiomatically, the federalism concerns
that exist when interpreting the Eighth Amendment’s constraints on plenary state power are not present when considering limits on that power that may exist pursuant to
the state constitution. Similarly, John Doe No.1’s distinction
between facial and as-applied challenges applies to federal constitutional claims, not state constitutional claims.
However, defendant does not develop a distinct argument
under Article I, section 16, of the Oregon Constitution.
Likewise, defendant here offers no federal constitutional
basis for a limitation on state plenary power apart from the
Eighth Amendment.2
      My judgment on that singular question before
us—whether one specific provision to the United States
    1
      The ordinance at issue in this case is PCC 14A.50.020, which reads, in pertinent part:
        “(A) As used in this Section:
        “(1) ‘To camp’ means to set up, or to remain in or at a campsite, for the
    purpose of establishing or maintaining a temporary place to live.
        “(2) ‘Campsite’ means any place where any bedding, sleeping bag, or
    other sleeping matter, or any stove or fire is placed, established, or maintained, whether or not such place incorporates the use of any tent, lean-to,
    shack, or any other structure, or any vehicle or part thereof.
        “(B) It is unlawful for any person to camp in or upon any public property
    or public right of way, unless otherwise specifically authorized by this Code
    or by declaration by the Mayor in emergency circumstances.
        “(C) The violation of this Section is publishable, upon conviction, by a
    fine of not more than $100 or imprisonment for a period not to exceed 30 days
    or both.”
    2
      Some scholars have considered whether plenary state power might be independently limited by the Ninth and Fourteenth Amendments. See, e g., Randy E.
Barnett, The Proper Scope of the Police Power, 79 Notre Dame L Rev 429, 429-95
(2004).
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Constitution prohibits local enforcement of a specific provision of a city code—is not the same as passing judgment on
the propriety, or the humanity, of that enforcement. At the
Hubert Humphrey Building dedication in Washington, D. C.,
on November 1, 1977, former Vice President Humphrey said
that “the moral test of government is how that government
treats those who are in the dawn of life, the children; those
who are in the twilight of life, the elderly; and those who are
in the shadows of life; the sick, the needy and the handicapped.” That there exist among us those who, through happenstance or ill-fortune, have nowhere to lay their head—no
shelter, no safety, no sanctuary—is a profound indictment
of our society. There can be no doubt that there is a moral
and ethical imperative to address homelessness in our state.
And, as homeless encampments throughout Oregon bear
witness, our collective response has yet to meet the challenge. The frustration by all—the homeless, land owners,
merchants, and the citizenry at large—is real. But impetus for action must find its roots in different soil than the
Eighth Amendment.
        Egan, C. J., joins in this concurrence.