Municipal Efforts to Combat Homelessness
Many municipalities, confronted with rising numbers of persons who are homeless and homeless encampments, have resorted to public camping and disorderly conduct ordinances to combat the phenomenon. There are three basic types of homelessness: (1) chronic, (2) transitional, and (3) episodic. The categories are largely as their names suggest. Persons are chronically homeless if they have, for a least a year, or repeatedly, been homeless while struggling with a disabling condition such as a serious mental illness, substance abuse disorder, or physical disability. Transitional homelessness encompasses persons who are earning too little money to afford long-term or permanent housing. Episodic homelessness is defined as a person who has experienced three episodes of homelessness within a given year. It typically afflicts younger persons who are fighting health issues or addiction. Governmental attempts to control or regulate homelessness implicate land use and zoning ordinances, fair housing laws, and the United States Constitution.
The city of Boise, Idaho attempted to fight homelessness in the community through a combination of its public camping ordinance and its disorderly conduct ordinance. In Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), the 9th Circuit Court of Appeals considered whether the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from criminally prosecuting people for sleeping outside on public property when those people have no shelter. The Court concluded that it does. A municipality cannot criminalize people who sleep outside when no sleeping space is practically available in any shelter. Id.
The Boise police issued citations to homeless residents when they violated one or both of two city ordinances. The first ordinance, Boise City Code § 9-10-02 (the “Camping Ordinance”), makes it a misdemeanor to use “any of the streets, sidewalks, parks, or public places as a camping place at any time.” The Camping Ordinance defines “camping” as “the use of public property as a temporary or permanent place of dwelling, lodging, or residence.” Id. The second ordinance, Boise City Code § 6-01-05 (the “Disorderly Conduct Ordinance”), bans “occupying, lodging, or sleeping in any building, structure, or public place, whether public or private . . . without the permission of the owner or person entitled to possession or in control thereof.”
The Martin plaintiffs filed an action in 2009 alleging that the previous citations under the Camping Ordinance and the Disorderly Conduct Ordinance violated the Cruel and Unusual Punishment Clause of the Eighth Amendment. They sought damages for those alleged violations under 42 U.S.C. § 1983. In 2010, the Boise Police Department instituted a new Special Order that prohibited enforcement of either the Camping Ordinance or the Disorderly Conduct Ordinance against any homeless person on public property on any night when no shelter had an available overnight space.
Boise shelters nightly notified the police when they reach capacity per the Boise Shelter Protocol. “Sanctuary,” the sole shelter with no religious requirements, had reported that it was full on almost 40% of nights. The other two Boise shelters each had religious requirements for residents. Although they both agreed to the Shelter Protocol reporting system, they never turned anyone away due to lack of space. The religious shelters only refused admittance because of residents’ noncompliance with the Christian Discipleship Program, or because they had exhausted the allotted 17 consecutive days of residence. If all shelters were full on the same night, police were to refrain from enforcing either ordinance. Boise police continued to issue citations regularly, however, under both ordinances because the religious shelters did not self-report as full.
Although Boise argued that even the religious shelters were secular, Martin plaintiffs testified to the contrary, stating chapel attendance was a pre-requisite for permission to eat dinner at those shelters. A city cannot, via the threat of prosecution, coerce an individual to attend religion-based treatment programs without violating the Establishment Clause of the First Amendment. Inouye v. Kemna, 504 F.3d 705, 712-13 (9th Cir. 2007). But in Boise, at the conclusion of a pre-determined length of stay, a shelter resident may be forced to choose between sleeping outside on nights when Sanctuary is full, thus risking arrest under the ordinances, or enrolling in programming that is antithetical to their religious beliefs. Martin, at 22.
The City of Boise established that the combined shelters had never been full because they had never cited any person under the ordinances who could not obtain shelter due to a lack of shelter capacity. The Court nevertheless concluded that a genuine issue of material fact existed as to whether homeless individuals in Boise run a credible risk of being issued a citation on a night when Sanctuary is full and they have been denied entry to a shelter for reasons other than capacity. The Court held that therefore, as a practical matter, no shelter is available on those nights. Despite the Shelter Protocol and amendments to both ordinances, the City continued regularly to issue citations for violating both ordinances. In fact, during the first three months of 2015, the Boise Police Department issued over 175 such citations.
The Martin Court then concluded that the Eighth Amendment prohibits the criminalization of sitting, sleeping, or lying outside on public property, for homeless individuals who cannot obtain shelter. The Court adopted the rationale of the Court in Jones v. City of Los Angeles, 444 F.3d at 1136, stating “[w]hether sitting, lying, and sleeping are defined as acts or conditions, they are universal and unavoidable consequences of being human.” Moreover, any “conduct at issue here is involuntary and inseparable from status — they are one and the same, given that human beings are biologically compelled to rest, whether by sitting, lying, or sleeping.” Id. As a result, just as the state may not criminalize the state of being “homeless in public places, the state may not criminalize conduct that is an unavoidable consequence of being homeless — namely sitting, lying, or sleeping on the streets.”
The Court emphasized that it was not dictating to Boise 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.” The Court held only that if 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. A municipality cannot criminalize such behavior consistently with the Eighth Amendment when no sleeping space is practically available in any shelter.
Whether the decision of the Ninth Circuit in Martin will gain traction as local governments grapple with the growing problem of homelessness and homeless encampments is yet to be seen.
With contribution from Jacqueline Stryker, J.D. Penn State Dickinson Law.