Will this ADA lawsuit in Portland take down the 'homeless industrial complex'?

I mentioned this class action lawsuit yesterday but National Review has a more in depth story today which makes me wonder if this lawsuit could be a game changer.

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A 66-year-old woman who had a bottle thrown at her as she maneuvered around a Portland, Ore. homeless camp in her electric wheelchair.

A 62-year-old longtime Portland resident who relies on a wheelchair and a service dog, and who was assaulted, spat on, and sprayed with mace by homeless people in her neighborhood…

According to the lawsuit, the city is failing to keep its sidewalks clear of debris and tent encampments, and failing to ensure the sidewalks are accessible to people with disabilities and visual impairments.

The basic argument here is that the city is required by the Americans with Disabilities Act (ADA) to keep the sidewalks clear for the benefit of those with recognized visual or movement disabilities, but it has not done so. From the lawsuit:

The denial of meaningful, equal, and safe access to the City’s sidewalks for persons with mobility disabilities complained of in this Complaint is the direct result of the City’s policies, procedures, and practices with regard to sidewalks and unsheltered persons. The City has failed to adopt or implement reasonable administrative methods, policies, and procedures for inspecting, clearing, and maintaining the sidewalks, as required by the ADA and the Rehabilitation Act.

These administrative methods, policies, and procedures, or lack thereof, discriminate against persons with disabilities by denying them access to the City’s sidewalks, as well as facilities in which the City’s programs, services, and activities are made available to the public. Simply, the City’s sidewalks, when viewed in their entirety, are not readily accessible to and usable by persons with mobility disabilities due to the City’s failure to maintain clear sidewalks free of debris and tent encampments. Indeed, the City’s most glaring violations are centered in Portland’s Old Town, Chinatown, Downtown, and Pearl District areas, as well as locations on the City’s east side, including the Central Eastside Industrial District, the Lloyd District, and the areas surrounding Laurelhurst Park, Lone Fir Cemetery, and Sunnyside Elementary School. Those areas are some of the City’s busiest commercial and business corridors, as well as home to the majority of the City’s public transportation hubs and Union Station—the City’s sole Amtrak train station. Accordingly, the City’s failure to maintain compliant sidewalks greatly diminishes the ability of persons with mobility disabilities to conduct business, commerce, and travel throughout the City and interstate.

The City has failed to comply with the ADA and Section 504 by allowing tent encampments and debris to block City sidewalks for over three years. Furthermore, for over three years, the City has made compliance with the ADA and Section 504 a lower priority than other activities and projects, including discretionary activities and projects not mandated by law. The City’s failure to prioritize compliance with the ADA and Section 504 constitutes a policy or practice that denies program access to, and discriminates against, persons with mobility disabilities. This lawsuit seeks a court order requiring the City to comply with these laws to provide people with mobility disabilities meaningful access to the City’s sidewalks.

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The complaint also includes a list of specific examples with photographs. The photo above is take from the complaint and here’s what it says about this particular location.

The tent encampment shown in this photograph at NW Broadway & Glisan Street in Old Town blocked an entire sidewalk from use by persons with mobility disabilities. Within one block of this tent encampment are vital public resources and services upon which persons with mobility disabilities rely. The post office, Union Station, the Greyhound station, and several MAX and bus stops are all within a city block or two of this tent encampment. Tent encampments in high traffic areas such as this are particularly troublesome to persons with mobility disabilities. This encampment was removed by the City prior to the filing of this complaint but the City has taken no steps to assure that a similar encampment will not return.

That’s just one of 22 specific examples, with photos, that are mentioned in the complaint. Next we get to the experiences of the 10 plaintiffs in the case, including Mr. Southard.

Mr. Southard lives in the Park Blocks in downtown Portland. Seven years ago, Mr. Southard suffered a spinal cord injury and became permanently disabled. Mr. Southard has limited
mobility and uses a cane, walker, or wheelchair.

Mr. Southard routinely has issues moving through downtown because of tent encampments blocking the sidewalk. Mr. Southard tries to maneuver past encampments to the best of his ability,
but frequently finds that he has to avoid using certain sidewalks on certain streets because they are completely blocked by tents, and he is unable to maneuver around them. Mr. Southard has also been unable to use sidewalks due to debris accumulated and generated by the tent encampments. Mr. Southard also uses the parks in downtown Portland less than he used to due to the obstructions and fear for his safety.

Even worse, Mr. Southard has been threatened and harassed by unsheltered persons in tents on numerous occasions while doing nothing but trying to maneuver around their tents. He has been physically assaulted twice outside his home by such persons, has been held against his will in an attempted mugging, and has been chased by an unsheltered person who pushed her way into the lobby of his building. Both he and his building have reported the crimes to police, but the police officers tell him there is nothing that they can do to address the sidewalk blockages caused by the tent encampments.

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One more example, a woman named Lorien Ilena Welchoff who has cerebral palsy.

Ms. Welchoff is a 21-year-old art student at a college in the Pearl District. Ms. Welchoff was diagnosed with Cerebral Palsy at 18 months old. At 14 years old, she was diagnosed with Spastic Diplegia Type 4. Because of these conditions, Ms. Welchoff has to use an electric scooter or a wheelchair to move around…

Ms. Welchoff has been followed and harassed by unsheltered persons as she attempts to navigate around their encampments and even had her personal property stolen while attempting to
enter her school. Because of this, Ms. Welchoff has become fearful of moving through downtown and uses her school’s campus safety officer to escort her back to her home whenever it is dark
outside—she simply does not feel safe and is scared to deal with unsheltered persons after dark.

Further, Ms. Welchoff has frequently had to wash herself and her wheelchair off after returning home due to operating her wheelchair through human feces which is not visible after dark. The tent encampments obstructing downtown sidewalks have become unsanitary and pose substantial health risks to Ms. Welchoff.

The complaint mentions that one of the plaintiffs has spoken about these problems at a city council meeting and another one filed a previous ADA complaint. But it seems the response from the city has been to ignore them. The complaint ends by asking that a judge require the city to clear the sidewalks and maintain them to prevent the tents returning. It also asks for attorney’s fees and unspecified monetary relief for the plaintiffs.

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One of the lawyers behind the lawsuit told National Review, “The target is not the unsheltered people. We want them to be sheltered in a humane way. Our adversaries are the politicians who are adopting policies that only encourage what we loosely call the homeless industrial complex.”

I don’t know if this is going to work but (as a non-attorney) it appears the plaintiffs have a convincing argument that they are being exposed to unique problems and dangers because of the city’s current policies regarding the homeless. If this lawsuit does succeed, there will be several more like it in cities up and down the west coast.

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David Strom 5:00 PM | May 23, 2024
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