Two lawyers are threatening to sue Portland if it does not continue to sweep homeless encampments.

A draft version of the complaint written by attorneys Talcott Franklin and former district attorney Jonathan Sahrbeck was sent to city leaders last month – at a time when there were relatively few encampments in the city. If filed, it would aim to bar the city from ever passing an ordinance to allow public camping and it would require Portland to continue moving anyone living outside expediently into shelter.

“I just really want the City Council to understand that there are consequences to not sheltering people,” Franklin said.

The complaint alleges that an unnamed “national legal organization,” has been continually offering the city shoddy legal advice about encampments, including a proposal known as Order 68 that Councilors Anna Trevorrow and Roberto Rodriguez brought forward in November to temporarily lift the city’s public camping ban.

The organization is brought up repeatedly in the suit. Franklin declined to answer questions about which organization he was referencing. However leaders at the American Civil Liberties Union of Maine say they are nearly certain it’s a reference to their organization.

“They quote from an open letter we sent to the city in October. So, based on that we think that the (national legal organization) refers to us,” said Carol Garvan, legal director of the ACLU of Maine.

The city has its own lawyers, Garvan said. And Mayor Mark Dion says the complaint has been sent along for review to Corporation Counsel Michael Goldman.

“At this point, this suit hasn’t been filed so I’m really taking this as a communication, just like emails or phone calls or anything else we receive from the public,” Dion said.

Both Garvan and Dion said they were confused at the timing of the complaint. As of Wednesday, there were 31 tents in the city, according to a homelessness dashboard, far less than were reported last summer and fall.

Franklin said he recognizes that this complaint comes at a moment when encampments are not a major issue for Portland, but he hopes it will guard against any encampments popping up again in the future.

He declined to comment about a small group of tents that have popped up near Preble Street and whether he would file this lawsuit if those are not cleared.

“I want councilors to know that if they try and pass an Order 68, there’s an injunction coming,” he said.

‘A PUBLIC SERVICE’

Franklin said the unprecedented number of tents throughout the city last summer inspired him and Sahrbeck to write an op-ed in the Press Herald last June. After it was published, Talcott says a number of community members asked if he could represent them in a case against the city.

Though Talcott declined to name plaintiffs, six are mentioned in the complaint. One “has a medical condition protected by the ADA that requires the use of a cart for mobility. Plaintiff’s use of the parks, sidewalks, and public rights of way has been continually impeded by encampments,” the complaint says. Another “owns a business located off Marginal Way. Individuals residing in encampments threatened plaintiff’s employees and customers, engaged in vandalism and theft, and polluted the property,” the complaint states.

Franklin said he and Sahrbeck have offered their services for free.

“It’s a public service in my opinion, it’s not something I want to get paid for,” said Franklin. “I don’t want to sue the city, I love the city. But if they’re going to destroy Portland I’m not going to just sit here watching them.”

The draft lawsuit argues that the presence of encampments violates a state law which protects people from harm in their home or in public by “nuisances.” The lawyers hope that by sending it to the council now, they will deter councilors from protecting encampments – something they are concerned may come up again as the weather gets warmer and more people try to camp outside.

LEGAL CONCERNS

The city’s current policy for handling encampments under the Encampment Crisis Response Team has been to send in outreach workers to get people into housing. If after a few weeks or months people are still camping, the city will clear the encampment.

Franklin said he takes no issue with this model.

“I’m not looking to just run in and sweep out every encampment, I don’t think that’s the way to go. But I think it’s critical that they get them moving inside and that the city focus on making sure they have capacity at the shelter,” he said.

The motivation behind the complaint, Franklin said, is precautionary. He hopes never to file it, but he wants the councilors to know that action will be taken should encampments proliferate in the city.

Dion said he views the complaint as “a sophisticated legal document.” But Garvan doesn’t think it will hold water.

“This does not read like an ordinary court complaint, in a lot of ways it reads more like a blog post or an opinion piece,” Garvan said, noting that it is unusual to circulate an unfiled lawsuit.

She said that allegations made in the draft lawsuit – that a “national legal organization” used “erroneous legal advice and scare tactics,” to push the city to sanction encampments – are unfounded.

Garvan said the ACLU followed its usual protocol last fall when the encampment crisis reached a fever pitch.

“We did what we do often throughout the state, which is share our legal opinion in an open letter. We laid out possible legal concerns with what the city was doing,” she said.

She also argued that the legal arguments supporting encampment sweeps would be trumped by the constitutional violations that sweeps pose to the city’s homeless population.

“If there is a federal constitutional violation, that overrides any kind of state nuisance law,” she said.

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