Court decision allows homeless to sleep in public spaces


The decision not to hear the appeal filed by the Boise case impacts not only locations under 9th Circuit Jurisdiction but could have a significant impact nationally

Jan. 15, 2020 — A Dec. 16 Supreme Court decision to deny a petition to review Martin v. City of Boise has finalized a significant holding by the 9th Circuit Court of Appeals which protects the right for homeless people to sleep in public spaces without reprisal.

The 9th Circuit reviews cases from 10 western districts including Oregon, Idaho, Washington and California.

The plaintiffs in the controversial case, supported by the National Law Center on Homelessness and Poverty, were individuals that were homeless.

The decision not to hear the appeal filed by the Boise case impacts not only locations under 9th Circuit Jurisdiction but could have a significant impact nationally.

The impact in Florence will be less dramatic as there are few instances here where the homeless are actually arrested or cited for vagrancy or loitering in city limits.

Commander John Pitcher is the point person for the Florence Police Department, and he reports the FPD does not target the homeless for sleeping in public places, but they do enforce other laws that may be broken by individuals without a permanent residence.

“We have been complying with the 9th Circuits order for some time now and have not been enforcing prohibited camping on public property,” Pitcher said. “We do enforce other ordinances and crimes that are public nuisance issues such as offensive littering, criminal trespass, crimi-nal mischief, blocking a sidewalk, disorderly conduct, etc., that are committed by a variety of people that include homeless at times.”

The Martin vs City of Boise case was originally argued in July of 2017 and centered around a complaint filed by six individuals that were homeless, seeking protection from prosecution stemming from their use of public spaces.

The plaintiffs had been cited, some more than once, for sleeping in public spaces and were seeking to prevent further arrest or fines — which they were unable to pay.

The decision to not revisit the case through the appeals process essentially blocks any practice of citing or arresting homeless individuals when there are no alternate locations provided by the municipality for them to utilize for attending to basic human needs.

“We’re thrilled that the Court has let the 9th Circuit decision stand so that homeless people are not punished for sleeping on the streets when they have no other option,” said Maria Foscarinis, Executive Director at the National Law Center on Homelessness and Poverty. “But ultimately, our goal is to end homelessness through housing — which is effective and saves tax-payer dollars — so that no one has to sleep on the streets in the first place. We hope that the 9th Circuit decision will help communities find the political will to put that housing in place. Housing, not handcuffs, is what ends homelessness.”

The argument presented to the court by attorneys for the plaintiffs asked the judges to consider the case in the context of the Eighth Amendment, which states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted...”

There were a number of Amicus (friend of the court) briefs filed in support of the City of Boise, most from cities experiencing rapidly rising numbers of homeless individuals, often in numbers that exceed the services provided by local religious and municipal support agencies.

“Sleeping outside is a biological necessity for those who cannot obtain shelter,” the lawyers for the plaintiffs said in court papers. “A city that criminalizes both sleeping on private property and public property when no alternative shelter is available leaves a homeless individual who cannot obtain shelter with no capacity to comply with the law.”

The argument presented by plaintiff’s council was apparently persuasive as Ninth Circuit Court Judge Marsha Berzon makes clear in the majority opinion.

“The imposition of criminal penalties for sitting, sleeping or lying outside on public property, for homeless individuals that cannot obtain shelter, amounted to the unconstitutional criminal-ization of the homeless,” Berzon wrote. “We consider whether the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to. We conclude that it does.”

There was an immediate response from the defendant in this case, the City of Boise, which posted the following statement on their website after the Supreme Court rejection of their request for appeal.

The Ninth Circuit decision effectively creates a constitutional right to camp, holding that cities cannot prevent anyone from camping until they first provide enough shelter beds for everyone, thus exempting public encampments from a host of public health and safety laws.

The ripple effect of this decision will be noticed in Florence but will present a much larger scale problem for cities like Seattle, Los Angeles and San Francisco, which are experiencing un-precedented levels of long-term homelessness.

The reaction by Boise is reflected in the statements issued from a number of these municipalities, suggesting the problem is just too big for individual cities to handle within the framework suggested by Judge Berzon’s opinion.

Advocates for the homeless have a different take on the angst expressed by these municipali-ties.

“Despite the doom and gloom of the appellants and those who joined them in filing amici, this ruling is a win for everyone,” said Eric Tars, Legal Director at the Law Center. “Cities can still address encampments on their streets, they just have to do it in constructive ways that reduce harm and actually help end homelessness. Public health and public safety are best maintained by making sure everyone has an adequate place to live, not by putting homeless people in jail or giving them fines and fees they can’t pay.”

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