U.S. Supreme Court declines to weigh in on Boise homeless law

WASHINGTON The U.S. Supreme Court said Monday it would not hear a closely watched case on whether cities can make it a crime for homeless people to sleep outdoors.

The case, Boise v. Martin, was brought by six people in Boise, Idaho, who said a pair of local laws violated the Eighth Amendment’s prohibition of cruel and unusual punishment. One prohibited “camping” in streets, parks and other public property. The other prohibited “lodging or sleeping” in any place, whether public or private, without the owner’s permission.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco ruled for the plaintiffs and struck down the laws, saying the Constitution does not allow prosecuting people for sleeping outdoors if there is no shelter available. That ruling stands.

The Supreme Court typically understands the Eighth Amendment to address acceptable punishments rather than what conduct can be made criminal. But in 1962, it struck down a California law that made being a drug addict a crime on Eighth Amendment grounds.

Relying on that decision and quoting from an earlier 9th Circuit ruling, Judge Marsha Berzon, writing for the panel, said “the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being.”

“As long as there is no option of sleeping indoors,” Berzon wrote, “the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

Dissenting, Judge Milan D. Smith Jr., joined by five colleagues, wrote that the ruling “has begun wreaking havoc on local governments, residents and businesses.”

“Under the panel’s decision,” Smith wrote, “local governments are forbidden from enforcing laws restricting public sleeping and camping unless they provide shelter for every homeless individual within their jurisdictions. Moreover, the panel’s reasoning will soon prevent local governments from enforcing a host of other public health and safety laws, such as those prohibiting public defecation and urination.”

The 9th Circuit is the largest court of appeals, meaning that its ruling directly affected not only Boise and all of Idaho, but also California, Oregon, Washington, Montana, Nevada, Arizona, Alaska and Hawaii. The decision was considered a victory by advocates for people who are homeless, but cities across the 9th Circuit have struggled to work within the ruling.

On Monday, Jay Burney, Olympia’s interim city manager, said, “No matter which way this ruling went, it does not or would not change the homelessness crisis that is facing Olympia and communities up and down the I-5 corridor.”

The city has been complying with Boise v. Martin since fall 2018. It opened a sanctioned camping site last December with that decision in mind, he said.

“There isn’t a change in terms of how we would move forward,” Burney said. “We’re on the same path.”

However, Burney said a regional and statewide response to homelessness is needed: “We can’t do this by ourselves.”

Lacey City Manager Scott Spence said Monday’s news won’t directly impact his city. But he said he was disappointed the Supreme Court did not take up the issue.

“I think there are competing issues as to what Boise v. Martin did or did not do,” he said, adding he sees confusion about the extent to which cities can and can’t regulate or enforce, and how far the ruling goes.

For example, when Lacey passed rules restricting RV parking earlier this year, the city called it a parking ordinance, but because it affected homeless people, some people said it should be held to the Martin v. Boise standard.

In their petition seeking Supreme Court review in the case, lawyers for Boise said the appeals court had heedlessly created a new right not grounded in the Constitution.

Advocates for people who are homeless considered Monday’s decision a victory as news came down. Theane Evangelis, Boise’s lead counsel on the case, disagreed, saying in a statement that “the 9th Circuit’s decision ultimately harms the very people it purports to protect.”

Boise appealed the case to the Supreme Court because “if the 9th Circuit’s ruling is allowed to stand, then cities will not have the tools they need to prevent a humanitarian crisis on their own streets,” Boise Mayor David Bieter said in an August news release. The city has issued seven camping citations this year.

Evangelis said the city “will be evaluating next steps” as the case returns to District Court. What those next steps look like is up in the air — Bieter’s spokesman, Mike Journee, said in a phone call Monday that it’s up to Mayor-elect Lauren McLean’s administration to make the decision on how to move forward.

McLean did not comment on whether her administration would continue to pursue the case in a statement Monday, instead saying that the city “needed to be planning for this scenario.”

“I look forward to continuing and expanding the City of Boise’s good work with key community partners in housing and homelessness, and believe we have effective, humane, and constitutionally sound solutions in our grasp,” McLean said in a statement.

Jodi Peterson, director of Boise’s Interfaith Sanctuary, said in a phone interview Monday that the court’s decision was “absolutely the best-case scenario.”

“Now we as entities must look at real solutions to address homelessness,” she said. “We can’t just lock people in a jail cell over it.”

Boise has created a “Grow Our Housing” effort to try to address the city’s needs, an initiative that thus far has included reducing restrictions on backyard apartments and cottages, and promoting a “healthy housing ecosystem.”

Geoffrey McCauley, a 34-year-old guest at Boise’s Interfaith Sanctuary, said ending ticketing is one of the biggest steps the city could take to support people who are homeless.

“This decision is a step in the right direction,” he said. “Getting a ticket and not being able to pay it and going to jail over and over is a waste of resources, and it makes things worse for people. I’m so glad this happened the way it did, and I know a lot of other people in the community are going to be, too.”

Idaho Statesman reporter Hayley Harding and Olympian reporter Abby Spegman contributed to this report.

This story was originally published December 16, 2019 at 4:12 PM.