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Homeless people gain ‘de facto right’ to sleep on sidewalks through federal court

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Supreme Court declines to re-examine the criminalization of homelessness in Martin v. City of Boise case

The Tenderloin Housing Clinic in San Francisco

An Idaho lawsuit concerning how cities across the West enforce laws about sleeping in public—potentially changing how they treat their homeless populations—will not be heard by the Supreme Court, potentially changing how many cities interact with this population.

This morning, the high court decided against hearing an appeal to the case of Martin v. City of Boise, which emerged in 2009 when Robert Martin and five other homeless individuals challenged the Idaho city’s ability to fine them for violating an anti-camping ordinance. According to the Ninth Circuit Court of Appeals ruling on the case from this past April, cities can’t arrest or punish people for sleeping on public property unless they provide adequate and relatively accessible indoor accommodations.

The city of Boise, in its appeal to the Supreme Court, argued that “the creation of a de facto constitutional right to live on sidewalks and in parks will cripple the ability of more than 1,600 municipalities in the Ninth Circuit to maintain the health and safety of their communities.”

The ruling means that unless there is enough shelter space for the homeless population of a city such as Seattle or San Francisco, city officials can’t enforce anti-vagrancy laws or prohibitions against camping in public parks or sidewalks. The court can’t force cities to build adequate shelter space or homeless housing, but it can make it unconstitutional for them to criminalize homelessness until that burden has been met.

More than a dozen cities, including Los Angeles, filed briefs asking the Supreme Court to rule on the case.

After the Ninth Circuit decision was announced, Eve Garrow, a homelessness policy analyst and advocate for the American Civil Liberties Union (ACLU), said that advocacy groups such as her own would engage in proactive public education campaigns to ensure municipalities were aware of the Martin decision and the group’s interpretation of the court ruling.

“I do believe if cities and counties continue to enforce in a way that’s now clearly unconstitutional, advocacy organizations will engage in litigation to protect the civil rights of these people,” she says.

Homeless camp out September 23, 2015, in the Skid Row section of Los Angeles.
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Kicking the homeless out of public spaces is “cruel and unusual punishment”

The April 1 decision by the Ninth Circuit Court of Appeals, which covers nine states in the western U.S. including California and Washington, rejected a petition to challenge a September ruling on the case. The 2-1 decision by a panel of three judges means that the earlier decision by the court stands, an affirmation of the theory that criminalizing people for camping of sleeping in public without any place to go is illegal.

According to the court, “the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

Steve Berg, vice president of programs and policy for the National Alliance to End Homelessness, says the decision has gotten a lot of attention, and will hopefully accelerate the movement towards more supportive housing and services.

“There are still too many people in local governments who think the right answer to homelessness is arresting people,” he says.

The legal reasoning grew out of an interpretation of the Eighth Amendment and its prohibition on cruel and unusual punishment, according to ACLU’s Garrow.

“You’re criminalizing someone for behavior that’s unavoidable,” she says. “Everyone has to sleep.”

In effect, she says, municipal laws that ban sleeping in public are making it illegal to be poor.

“This is such an important ruling,” Garrow says. “These enforcement actions punished people for unavoidable behavior. You can’t punish people for eventually falling asleep. It sends a message that people have choices, and that we don’t need to build any more supportive housing, and we don’t have any options. From a public policy perspective, they don’t make sense, they send the wrong message, they treat those who are poor as criminals, and create fear and mistrust of those experiencing homelessness.”

The Martin case, which will not be heard by the Supreme Court, will change enforcement around homelessness, Garrow says. If a municipality builds enough shelter spots that are truly, reasonable, accessible alternatives for everyone experiencing homelessness in their jurisdiction, it wouldn’t be prohibited from enforcing laws against sleeping in public.

But for cities in, say, California, she says that’s a pretty tall order.

“There’s such a dire crisis in our municipalities, especially in the city and county of Los Angeles,” she says. “They have a really long way to go to meet those requirements.”

How will this impact city policy?

Going forward, Garrow says, it’s pretty clear that enforcement of anti-camping and anti-sleeping ordinances should be prohibited. They need to be either repealed or prohibited.

The Martin case reinforces arguments made by the Housing Not Handcuffs campaign, which has pushed against the criminalization of homelessness and for more supportive housing and medical care.

“We want communities to see this as an opportunity, not a limitation. Criminalization of homeless, anyway you look at it, is never a positive step,” Eric Tars, senior attorney for the National Law Center on Homelessness and Poverty, told Governing magazine. “From a fiscal standpoint, it costs communities more to cycle these people through law enforcement than actually providing shelter or giving them resources.”

But, for cities seeking to conform to the expectations being laid out by the Martin v. Boise decision, it’s not strictly a numbers game. The Martin case, which originated in 2009 when six residents sued the city, arguing that laws against sleeping in public and qualifying that action as “disorderly conduct” were unconstitutional, specifically discussed reasonable and accessible spots for everyone. That means having beds accessible for the disabled and for pregnant women and families. An important argument in the Martin case concerned faith-based services that required those staying there to pray in a certain manner. Judges declared spots that coerced religious observation were not accessible to all.

Cities have already been adjusting their policy based on the September ruling in the case. San Francisco, Portland, and Sacramento have stopped enforcing such rules based on this new precedent. Modesto, California, dedicated a park to housing the homeless, while Olympia, Washington, called off sweeps of homeless encampments.

Los Angeles has a 50-year-old law banning sidewalk sleeping but has not enforced it in recent years due to a 2007 settlement with the ACLU. Last year Mayor Eric Garcetti said the city would start to enforce the ban again but only near one of 15 new emergency shelters.

Josh Leopold, a senior research assistance at the Urban Institute, wonders how this decision will impact the importance of homeless counts in cities, and whether there will be more controversy over official numbers if its more closely connected to enforcement actions.