One court case changed how West Coast cities deal with homeless encampments

Five years ago, federal judges ruled it was “cruel and unusual” for cities to fine or arrest homeless people for sleeping outside when they had nowhere else to go.

Fast-forwarding to recent months, elected officials in the West Coast are railing against the decision, asking the conservative-majority U.S. Supreme Court to overturn Martin v. Boise.

But why now?

Due to a novel coronavirus pandemic and continually rising rents, the number of people living outside has surged, along with housed residents’ outrage over the public safety impacts of encampments and humanitarian crisis in full view.

And cities are now confronting the true cost of building enough shelter and housing to end homelessness.

But for cheaper, cities can use fines and the threat of arrest to reduce the visibility of unsheltered people. Often, that pushes people out of city boundaries, into greenbelts out of view, or into low-income neighborhoods that have less political voice.

The problem with this strategy is cities keep getting sued or are threatened with legal action, and Martin v. Boise underpins those lawsuits.

For example, in June, Hawaii County police and Department of Parks and Recreation staff removed 23 homeless individuals from the Kona Aquatics Center.

In the days leading up to the “sweep,” the American Civil Liberties Union of Hawaii wrote to Hawaii County, declaring that eviction of homeless “unconstitutional” under Martin v. Boise.

County officials defended their actions, saying they have “taken a balanced approach” in the handling of homeless living near the aquatics campus, Managing Director Lee Lord wrote to Wookie Kim, legal director of the ACLU of Hawaii, in June.

The ACLU has yet to file a lawsuit against Hawaii County, saying it is monitoring the handling of homeless encampments on the Big Island, Kim told the Tribune-Herald over the summer.

The same organization, however, elected to sue the City and County of Honolulu in July over its treatment of the homeless, including sweeps, citations and more. An evidentiary court hearing about the lawsuit was held earlier this month, and the case is ongoing.

West Coast officials say actions like the ACLU’s have the potential to hamstring their ability to address a crisis.

Legal experts say that the actual language of Martin v. Boise places very few limitations on what cities can do.

But the turn against Martin v. Boise, especially by Democratic-led cities and states, has dismayed those who had hoped the courts would spur cities toward fixing the housing crisis, rather than addressing symptoms of it.

Now, legal experts and advocates are worried about what would happen if those limited protections go away.

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WHAT WAS MARTIN V. BOISE?

Six homeless people, including Robert Martin, sued the city of Boise in 2009 after receiving fines from police for sleeping on public property. They argued that the three homeless shelters in Boise — the only ones in the county — weren’t suitable for them because they either were full almost every night or required longer-term residents to enroll in Christian programming, according to court filings.

In 2018, the 9th U.S. Circuit Court of Appeals sided with the homeless campers.

“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,” the court wrote.

Criminal penalties for sitting, sleeping, or lying outside — which the court said are “unavoidable consequences of being human” — violated the Eighth Amendment’s protection against “cruel and unusual” punishment.

And the court wrote that programs requiring religion-based treatment do not count as available shelter because they conflict with the First Amendment’s right to religious freedom.

Boise settled the lawsuit in 2021, costing the city about $1.8 million, partly from building more shelter. The city also required police to check whether a shelter space was both available and appropriate for someone before issuing someone a citation.

The number of fines for camping on public property dropped from hundreds to dozens per year. The number of people sleeping outside decreased from 121 to 80 between 2018 and 2022, according to the Point-In-Time Count.

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OFFERS OF SHELTER

Suddenly, states under the jurisdiction of the 9th Circuit — Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington — had to reevaluate their practices.

In 2019, the city of Boise unsuccessfully asked the U.S. Supreme Court to rehear the case, and many other cities and counties wrote in support.

“The Martin decision hamstrings the County from stopping the rash of violence and crime on our streets,” wrote the County of Los Angeles Board of Supervisors in a 2019 motion directing its lawyers to write an amicus brief for the Supreme Court to rehear Martin v. Boise.

But legal experts say the decision actually does very little to restrict cities’ ability to clear encampments.

For example, Sara Rankin, a professor at Seattle University of Law and a national homelessness law expert, said if police can get people on the street to move without fining or arresting them, Martin v. Boise does not apply.

In addition, Martin v. Boise explicitly allows officials to designate geographic areas and times of day that people are not allowed to camp that cities are allowed to enforce.

For example, Portland passed an ordinance in July that prohibits camping during the day between 8 a.m. and 8 p.m. or in parks and near schools, which legal experts say is allowed.

Many cities followed Boise’s lead and began offering people shelter, enforcing camping bans only if refused.

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A CALL TO OVERTURN

The U.S. Supreme Court rejected the city of Boise’s request in 2019 to rehear Martin v. Boise. Cities are now targeting a separate but similar case called Johnson v. Grants Pass.

In that case, the city of Grants Pass attempted to align with Martin v. Boise by modifying its camping ban from prohibiting sleeping outside to prohibiting the use of “bedding, sleeping bag, or other material used for bedding purposes.”

The 9th Circuit again ruled against Grants Pass in a decision that said cities could not punish people for taking the “most rudimentary precautions” to protect themselves from the elements.

California Gov. Newsom and Seattle City Attorney Ann Davison, along with dozens of other local officials in both progressive and conservative places, have written amicus briefs to the Supreme Court asking for it to overturn both rulings.

“The 9th Circuit’s decision in this case strips local authority from a complex problem,” Davison wrote in news release. “Local officials know what their community needs and what unique obstacles face those experiencing homelessness in their region.”

Other cities are saying they need more flexible enforcement options because they can’t afford to actually end homelessness. In its amicus brief, San Francisco wrote that providing shelter to everyone living outside would cost a third of its budget.