Dismissed by a judge in 2015, Michael O'Callaghan's case claims the law amounts to 'cruel and unusual' treatment of people forced to sleep outside.

PAMPLIN MEDIA GROUP FILE PHOTO - Three federal appellate judges heard arguments Thursday morning, July 13, in Portland in a case challenging the city's anti-camping ordinance as unconstitutional.Homeless advocate Michael O'Callaghan hopes the 9th Circuit Court of Appeals sides with him and declares Portland's anti-camping ordinance unconstitutional.

O'Callaghan, who says he is homeless by choice, took his case to a three-judge panel Thursday morning, July 13, in Pioneer Courthouse. At the heart of his argument is a request for appellate judges to reinstate his challenge of a 2011 arrest on the Springwater Trail south of the Ross Island Bridge for damaging public property, saying the city ordinance on which the arrest was based amounted to a violation of O'Callaghan's constitutional rights.

A federal judge threw out O'Callaghan's case in 2015, setting up his appeal.

Saying that Portland city employees have been harassing him for six years, O'Callaghan sued the city in 2011. O'Callaghan, a long-time homeless advocate and activist who lives on $785 a month, was involved with the Occupy movement, serving as secretary and treasurer at Right 2 Dream Too homeless "rest stop" in Old Town. He moved to Oregon in 2003 after spending some time in Alaska and Eugene,growing up in Tualatin.

"I can't go rent a room under $500 a month and leave me $300 to live off of," he says.

He would like the city allow more tiny-home homeless villages with community agreements, such as Dignity Village.

PAMPLIN MEDIA GROUP FILE PHOTO - Homeless advocate Michael O'Callaghan was a part of the Occupy movement and was active in Right 2 Dream Too, a homeless 'rest stop' in Old Town.

Caught 'red-handed'

According to O'Callaghan's federal lawsuit, Portland police found him constructing a cave along the trail, damaging public property. He was charged with second-degree criminal mischief. O'Callaghan says his arrest violated the Fourth Amendment, which protects people from unlawful searches and seizures.

O'Callaghan's 2011 lawsuit challenges the city's anti-camping ordinance as a violation of his Eighth Amendment rights, saying it's cruel and unusual punishment when homeless shelters are full, leaving many people with no options except to sleep outside.

O'Callaghan and his lawyers, who are handling the case free of charge, argued Thursday that Portland lacks adequate resources for homeless people, such as shelters and other services, as their numbers increase during a housing affordability crisis.

Attorneys representing the city countered that the ordinance was directed at specific conduct — such as camping on public property or public rights of way. They also challenged O'Callaghan's homeless "status," saying he had the ability to live elsewhere other than on a public right of way at the time he was arrested. According to court documents, O'Callaghan has income from two trust funds and a home in Portland.

City attorneys also argued that that although O'Callaghan believes that police had no reason to arrest him — officers caught him "red-handed in the process of damaging public property."

A decision in the case is not expected for several weeks.

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