Homelessness is a complex problem that challenges if not defies solutions. In fact, there is some evidence that the problem has grown worse, in spite of the efforts involving declarations of emergency, the commitment of millions of dollars by both government and private sector, and the collective, if not always well coordinated efforts by multiple nonprofit agencies. The visual – and economic – impact of homelessness in our urban environments, which are characterized by tents on sidewalks, encampments under freeway overpasses, and reports of retail businesses having to lock up shelves or close their doors altogether, certainly supports the narrative that the situation is out of control. (Photo from Martin v. Boise, 920 F.3d 584, 597; credited to Los Angeles County).
Equally frustrating has been the confusion surrounding the extent to which local governments can take action. In the nine western states under the jurisdiction of the 9th Circuit Court of Appeals, angry and concerned citizens are often told by local officials that they cannot remove tents and encampments unless and until sufficient housing has been constructed. The basis for this stems from a ruling from the 9th Circuit’s decision in Martin v. Boise in 2019, holding that subjecting individuals to criminal penalties for “sitting, sleeping or lying outside on public property,” was a violation of the 8th Amendment’s prohibition against “cruel and unusual punishment.” A small group of individuals who had been arrested for sleeping in a public park – some of whom had spent a short time in jail – who argued that they had done so because there was simply no shelter available – successfully argued that criminal punishment for their status – homeless – when they had no alternative, was a violation of their rights under the Eighth Amendment. A panel of the 9th Circuit agreed, and a divided Court denied a request for a rehearing. The U.S. Supreme Court subsequently denied hearing the case, letting the panel’s decision stand.
Shortly after the decision in Martin v. Boise was handed down, another group of individuals in the town of Grants Pass, Oregon, filed a class action, challenging an ordinance that prohibited camping in public parks. Violators were issued civil fines, and if they got caught a second time, were banned from the parks for 30 days. If they returned before then, they were criminally charged for trespassing. The 9th Circuit found no distinction between the criminal citations issued in Boise from the penalties issued in Grants Pass, ruled in favor of the plaintiffs, and denied a request for rehearing. As in Boise, several Judges on the 9th Circuit strongly dissented. This time, they argued that the decision in Boise had generated “dire practical consequences for the hundreds of local governments within our jurisdiction, and for the millions of people that reside therein.” The dissent went on to claim that the decision in Boise had been “egregiously flawed.” The dissent concluded that both the decisions in Boise and Grants Pass “should be overturned or overruled at the earlies opportunity, either by this court sitting en banc, or by the U.S. Supreme Court.” (Emphasis added).
On January 12, the dissent got their wish. Dean Chemerinsky writes in his Editorial that he thinks that the Supreme Court will allow local jurisdictions to impose criminal penalties for being homeless, which he argues – as did Judge Berzon in Boise, was a “status” over which a person had no choice, or that they cannot change. In Grants Pass, the violation was “sleeping,” which the 9th Circuit had clearly ruled was an involuntary act – everyone needs to sleep. Dean Chemerinsky declares “Criminal law exists to punish people who choose to break the law, not for conduct that is not a choice.” (Mercury News, January 19, 2024).
In response to the dissenting Judges, both Judge Berzon and Dean Chemerinsky attempt to make the point that the ruling in Boise was narrow, that it “recognized the right of cities to clear encampments and prevent the use of tents on public property.” (Emphasis added; Mercury News, January 19, 2024). In her decision in the Boise case, Judge Berzon wrote:
“Our holding is a narrow one. [ ] “…we in no way dictate to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets … at any time and at any place. [ ] We hold only that “so long as there is a greater number of homeless individuals in [a jurisdiction] than the number of available beds [in shelters],” the jurisdiction cannot prosecute homeless individuals for “involuntarily sitting, lying, and sleeping in public.” Id. That is, as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”
MARTIN V. CITY OF BOISE
To clarify this point, Judge Berzon included a comment in the following footnote:
Naturally, our holding does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it. Nor do we suggest that a jurisdiction 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. (Citation) So, too, might an ordinance barring the obstruction of public rights of way or the erection of certain structures. Whether some other ordinance is consistent with the Eighth Amendment will depend, as here, on whether it punishes a person for lacking the means to live out the “universal and unavoidable consequences of being human” in the way the ordinance prescribes. (Emphasis added).
It is noteworthy that the City has announced plans to remove encampments along the Guadalupe River, continuing an effort undertaken previously pursuant to directives issued by the FAA, and expanding the scope through much of Downtown San Jose. According to both the author of the Boise decision and affirmed by Dean Chemerinsky, the City has always had this authority. But it has become clear that in the face of increasing numbers of encampments and complaints, it is time to put this authority to work. Hopefully the City can do so in a thoughtful and effective manner and avoid the pitfalls that took place in Boise and Grants Pass.
The Supreme Court is expected to hear arguments in Grants Pass v. Johnson in April, and a ruling is expected by the end of the Court’s term (June 30, 2024).
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