Camping Out in the Courts

All eyes are on the fate of Boise's anti-camping ordinances


Long accused of being a set of anti-homeless measures, Boise's anti-camping ordinances took a big hit on Sept. 4<, when the Ninth Circuit Court of Appeals declared that in enforcing them, the City had violated the plaintiffs' Eighth Amendment rights. In her opinion, Ninth Circuit Judge Marsha Berzon cast the ordinances in bitter irony, quoting Anatole France's The Red Lily: "The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread."

"We consider whether the Eighth Amendment's prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to," Berzon wrote, departing from the text. "We conclude that it does."

In filings and courtroom debates, the case revolved around the question of whether there were enough beds in Boise homeless shelters for all of the people experiencing homelessness—in other words, whether those people slept under the stars instead of a roof by choice or necessity.

Advocates for the homeless weren't alone in watching from the sidelines; they shared the peanut gallery with cities and counties around the country that have similar ordinances, concerned that the ruling could set an inconvenient precedent. With them in mind, one of the attorneys representing the plaintiffs let loose in his announcement of the court's Sept. 4 decision.

"The outcome of the court's decision will ripple across the country," wrote Howard Belodoff, an attorney with Idaho Legal Aid Services who represented the plaintiffs along with The National Law Center on Homelessness & Poverty, and Latham & Watkins LLP.

If final, the Ninth Circuit Appellate Court's determination would have far-ranging effects. South Jordan, Utah, announced in May it would implement an anti-camping ordinance that, among other things, would prohibit using public property for temporary or permanent dwellings, from shanties and tents to laying down bedding to sleep, according to Deseret News. In April, a judge threatened to bar Orange County in California from enforcing its own anti-camping laws.

According to Voice of OC, the Santa Ana, California, Mayor Miguel Pulido said in August that the city should use law enforcement to "harass" and "get tougher" with homeless people there so that they would "move out of town and go harass another town." A tent city or homeless encampment, he added, could provide the City of Santa Ana cover to resume enforcing its anti-camping and loitering laws.

"They want to push the problem out of public view without touching on the underlying causes of the problem," said Eric Tars, senior attorney with the National Law Center on Homelessness & Poverty, which was party to the lawsuit against the City of Boise.

Boise's own laws, which go by the name "Camping and Disorderly Conduct Ordinances," proscribe obstructing streets, camping in public, unlicensed selling on streets, "loafing" or loitering, and a variety of other activities. One attorney involved in the lawsuit said the ordinances ran the risk of butting against the Eighth Amendment from the get-go.

"The basic premise is that since the 1970s, there's a line of court cases that say you can't punish somebody for their status. Every human needs to sleep," Tars said. "If a person has no private place to do it, it's still a biological need."

A group of civil rights-oriented groups and attorneys filed suit in 2009 on behalf of a number of homeless people who had run afoul of those ordinances, and the city has been embroiled in legal battles over the issue ever since. In a 2015 flashpoint, U.S. Magistrate Judge Ronald Bush dismissed their case, Bell v. City of Boise, on the grounds that the plaintiffs had insufficient standing. In his opinion, Bush wrote that there was "no known citation of a homeless individual under the Ordinances for camping or sleeping on public property on any night or morning when he or she was unable to secure shelter due to a lack of shelter capacity," though he added that in dismissing the case, he left the door open to future challenges of the ordinances on Eighth Amendment grounds.

The plaintiffs rejiggered their case under a new name, Martin v. City of Boise, to reflect their reinforced standing, ultimately leading to the Ninth Circuit's Sept. 4 decision.

Despite the courtroom defeat, the City of Boise may not be ready to give up the fight just yet.

"Our attorneys are taking a closer look at this complicated ruling to determine our best path forward. Options could include asking for a reconsideration by the entire 9th Circuit panel or an appeal to the U.S. Supreme Court," wrote Mike Journee, a spokesman for Mayor Dave Bieter, in a statement. "That said, key portions of the ruling seem to support how we've approached this issue to date. Specifically, our officers do not cite people for camping when our local shelters have no space."

Tars said he hopes the Ninth Circuit's decision will spur other cities to adopt housing-first and supportive housing initiatives that, though they have steep up-front costs, have proven effective in reducing homelessness and its financial burdens for cities in the long run. He did concede that nationally, some cities may not learn what he said are the lessons of the Sept. 4 decision.

"Cities are, unfortunately, endlessly creative when it comes to finding ways around these court rulings," Tars said. "I have no doubt that somebody is out there trying to thread this constitutional needle. Those efforts could be much better applied."