Cities are largely ignoring a federal appeals court’s recent ruling that Boise, Idaho’s ban on people camping out in public spaces was illegal, and are doubling down on their own similar laws that push people who are homeless even further into distressed living situations.
The judge ruled that there was not enough shelter space throughout Boise that didn’t have religious requirements attached. People who are experiencing homelessness sleeping on public spaces when there is a lack of available shelter space was, as the court described, a “universal and unavoidable consequences of being human” and arresting them for doing so is a cruel and unusual punishment.
Major cities in the ninth circuit’s jurisdiction, including Seattle, Portland, Tacoma, and San Diego, all say their laws do not explicitly ban camping the same way Boise’s does and therefore are not impacted by the court’s rulings and have no plans to change or repeal them.
But homeless-persons’ advocates and researchers, who have long battled such laws, say in light of the ruling, those cities that are enforcing or considering such bans should reconsider.
“If you have a practice like this, where you are arresting and prosecuting people for sleeping on the streets when you haven’t given them any other options, you can be liable for a lawsuit,” said Steve Berg, Vice President for programs and policy at the National Alliance to End Homelessness.
“It’s an occasion for communities to look at what they’re doing. Are we going to solve the problem rather than just leave it up to law enforcement to solve the problem?” Berg added. “To solve homelessness requires people to work together and these policies do the opposite of working together.”
Cities and towns across the country have essentially criminalized homelessness by imposing local laws that outlaw sleeping in public. Yet many of those cities do not have enough beds at shelters to accommodate the number of people that live without homes in their community. And often times the beds that are available have restrictions related to religion, sobriety, gender, or even pets that are prohibitive and keep people out.
A group of people who were homeless sued Boise almost a decade ago over its ban. The Ninth Circuit Court of Appeals ruled just last week in their favor. The court’s decision could impact similar laws in cities within its jurisdiction, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
The ruling found that a city cannot prosecute people for living in public if there are more people than available shelter beds (available beds cannot have barriers like religious mandates). Doing so would be considered a cruel and unusual punishment, in violation of the Eighth Amendment.
A footnote in the ruling says the court is not suggesting that cities “with insufficient shelter can never criminalize the act of sleeping outside. Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible.” City officials are leaning on that distinction when claiming the ruling does not apply to their own local laws.
Seattle, for example, bans people from lying or sitting down down on public sidewalks between 7 a.m. and 9 p.m. in most of its public parks, its downtown, and most business districts. Those are all places people are likely to find some sort of coverage from the elements, such as under awnings. The city claims people can still sleep outside in the city’s residential areas.
“Unlike Boise, Seattle has no blanket citywide policy that criminalizes sleeping outside, therefore we don’t expect that this decision will affect the way the city is able to respond to people living outdoors,” said Seattle’s City Attorney Pete Holmes in a statement.
However, Sara Rankin, director of Seattle University’s Homeless Rights Advocacy Project, argues the ruling does not “explicitly limit” its holdings to complete bans or rule that bans like Seattle’s are constitutional and that the cities “vastly underestimate” the ruling’s implications.
“Cities have for too long failed to adequately invest in well-known, cost effective solutions to homelessness, while they enact and enforce laws that punish people for surviving in public,” she said. “Seattle, like many other cities, has a long way to go before it can rest easy.”
Cities maintain homelessness bans
The Las Vegas city council was scheduled to discuss a proposal for a similar type of ban Sept. 5, the day after the appeals court ruling. The proposal would have banned people from setting up temporary shelters or camps near food processing or manufacturing facilities, but it was taken off the table just before the meeting.
Lois Tarkanian, the Ward 1 city councilwoman who introduced the proposal, said the appeals court ruling did not impact her decision to take it off the agenda. She said while many her constituents have asked her to impose broader citywide homeless camp bans, it is not the will of the city council to do so and she will run anything she proposes in the future by the American Civil Liberties Union.
“I think people on the city council understand you need to protect the rights of the homeless as well as the rights of others,” Tarkanian said.
However, following the ruling, a number of cities along the coast with far stricter policies on the books say they do not plan to make any reforms.
Tacoma, Wash.’s ban on camping in public is not impacted by the ruling because it is only enforced when there is space available at a shelter the person on the street has access to, said the city’s spokesperson Megan Snow. So a single man would not be cited if there was space available only at a family-centered shelter.
“We continue to look for answers to the complex problems associated with homelessness and affordable housing that do not involve putting individuals in jail for sleeping outside,” Snow said. “We have resources going towards better serving them. But at the same time we are also at a state of public health emergency in that those encampments pose a public health and safety issue.”
Portland, Ore. officials defended the city’s ban because they use it sparingly, about three or four times total over the past two years, according to Michael Cox, the mayor’s chief of staff. And the city only enforces it in extreme cases, like if someone returns to the same sidewalk location with a lot of living materials a number of times after police told them to move, city attorney Tracy Reeve added.
Reeve did not address whether she thought the law deterred people from seeking refuge in public spaces.
“We do not criminally cite people merely for sleeping outdoors,” she said. “That doesn’t mean that everyone who is homeless has the right to set-up a full-blown camp site and stay there.”
San Diego officials do not plan to change the city’s anti-camping laws as well because, “We always have beds available. Every night, we have beds available,” said Greg Block, the city’s senior press secretary. While there are an estimated 1,400 people who are chronically homeless in the city, he said the city tries to find them a place to go and that officials have taken steps to getting rid of the barriers to those available beds, like ending restrictions on pets.
The police is “trying to help people move along to some kind of shelter… Being outside is not considered illegal here,” said Block.