Oregon Appellate Court, February 5, 2020

by: Rankin Johnson • February 11, 2020 • no comments

Summarized by Rankin Johnson, OCDLA

TRIAL PROCEDURE - Preservation and making a record

Camping ordinances do not violate constitution. Affirmed.

Defendant was arrested for camping in Portland. Before trial, he filed a motion to dismiss, later captioned a demurrer, raising numerous arguments. The Court of Appeals held that he failed to make a factual record showing that there were no homeless shelters available and that his as-applied arguments could not be raised pre-trial.

Ortega, concurring, would have held that the Eighth Amendment prohibits punishing a homeless person for camping when no alternative is available, but agreed that defendant had not made an adequate record.

James, concurring, believed that because defendant's argument applied to a class of people it was a proper facial challenge, which James would have rejected on the merits.

State v. Barrett 302 Or App 23 (January 29, 2020) (DeVore, Ortega concurring, James concurring) (Multnomah County, Bushong)