Cities, States Urge Supreme Court to Hear Homeless Camping Ban Case

Denver Police Department officers keep watch during a sweep of homeless people who were living on the walks surrounding a shelter near the baseball stadium Tuesday, Nov. 15, 2016, in downtown Denver.

Denver Police Department officers keep watch during a sweep of homeless people who were living on the walks surrounding a shelter near the baseball stadium Tuesday, Nov. 15, 2016, in downtown Denver. AP Photo/David Zalubowski

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After a Boise, Idaho law that prohibits sleeping in public spaces was ruled unconstitutional by an appellate court, some local governments are raising concerns about how they can now legally address problems stemming from homeless people living on the streets.

Dozens of cities and states across the country are encouraging the Supreme Court to hear and clarify, if not fully overturn, an appellate court ruling that bans municipalities from prosecuting homeless people for sleeping on the streets.

The case stems from a 2018 decision against the city of Boise, Idaho, which local governments argue has undercut their ability to maintain public spaces and enforce public health and safety laws. The 9th U.S. Circuit Court of Appeals found that when 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.”

Local governments in Western states, as well as a coalition of seven states, filed amicus briefs last week to encourage the high court to hear the case.

Some cities, like Los Angeles, agree with the underlying finding in the Boise case—that individuals should not be prosecuted for sleeping on the sidewalk at night if no shelter is available. But the city said it simply does not have the capacity or resources to be able to provide beds for the 27,000 unsheltered homeless people who live in the city.

“The city cannot build housing or shelter for 27,000 individuals overnight. As a result, thousands of unsheltered Angelenos have no choice but to dwell in public spaces,” the city wrote in an amicus brief filed last week.

The League of Oregon Cities argued that the ruling creates “a hopelessly unworkable framework” that cities must navigate before they can prohibit a person from sleeping on city property.

Compliance with the ruling is next to impossible given the difficulty in counting a jurisdiction’s homeless population and determining exactly how many shelter beds are needed, the league wrote. Further, the group said many shelters run by religious organizations would not count toward the number of shelter beds because of issues raised in the ruling about shelters that require people to take part in some religious programs.

Los Angeles was also concerned about the ambiguity of the ruling and further implications regarding the responsibilities of state that local governments if they are barred from prohibiting conduct considered an “unavoidable consequence” of being homeless.

“Humans need to eat. Must the city allow open flame cooking in public?” the city wrote. “All humans must relieve themselves. Must the city suspend enforcement of its ban on public defecation in the absence of a certain number of public toilets? How many toilets are required?”

The Boise lawsuit was originally filed in 2009 by homelessness advocacy groups on behalf of six homeless people who had received citations under the city’s camping ban.

A 9th Circuit panel in September 2018 agreed with the plaintiffs and the full appellate court earlier this year declined to review the case. The National Law Center on Homelessness and Poverty, which brought the case, at that time said the ruling signaled that cities should start proposing real solutions to homelessness. Eric Tars, legal director for the group, said cities should be spending time creating alternatives for people sleeping on the street. 

“Getting homeless people into housing is a win-win approach, benefitting both the individuals helped and the communities that no longer have to deal with the negative impacts of people living in public spaces, at lower cost than cycling people through the criminal justice system,” he said in a statement.

Arguing that the 9th Circuit ruling should be overturned, other municipal associations and cities detailed the effects of homelessness, as well as their efforts to address related problems.

The Brentwood Community Council, which represents an unincorporated neighborhood on the outskirts of Los Angeles, wrote that concerns raised by residents about large homeless encampments range from battling daily fires that start in encampments, and behavior or homeless people who have exposed themselves to children who walk past or thrown rocks at cars that drive by.

In Denver, lawmakers passed a ban on unauthorized camping on public and private property in 2012. The city has taken strides to address the local homeless crisis, but simply allowing people to camp in public spaces will not help homeless individuals deal with any underlying issues nor will it help the communities in which they camp, argued the Downtown Denver Partnership.

“For Denver, such judicial policy could result in the unauthorized encampment of Red Rocks Amphitheater, the Denver Zoo, or any of the City’s major urban parks, like Washington Park, City Park, and Sloan’s Lake; the contamination of the South Platte River and Denver’s other waterways with human waste; and the occupation of Denver’s business and cultural centers, leading to economic downfall,” the partnership wrote.

Denver’s ban on public camping has not translated to a severe crackdown on the city’s homeless, the partnership wrote. The group said the Denver Police Department officers detailed to homeless outreach unit primarily relies on support services over criminal citations, according to an amicus brief filed by partnership.

“Since 2013, DPD officers have conducted over 11,700 checks, reaching over 18,000 people on the streets,” the partnership wrote. “Of those thousands of street checks, officers only issued 32 criminal citations for violations of the camping ordinance.”

Six states argued that the Boise ruling also infringes on their right to protect the public health and safety.

“Homelessness is a complex issue that challenges states and local governments,” attorneys general from Alaska, Idaho, Indiana, Louisiana, Nebraska, South Dakota and Texas wrote. “The Ninth Circuit’s decision prevents states from enforcing necessary public health and safety laws prohibiting sleeping and camping in certain circumstances, and it has also raised the specter of unconstitutionality over a wide range of vital criminal laws, including the basic law of trespass.”

A response by lawyers representing the homeless individuals who brought the case is due by October 25.

Andrea Noble is a staff correspondent with Route Fifty.

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