Legal Alerts Sep 07, 2018

Local Ordinances Cannot Permit Prosecution for Sleeping Outside on Public Property When No Shelter is Available

Ninth Circuit Holds Such Laws Violate the Eighth Amendment

Local Ordinances Cannot Permit Prosecution for Sleeping Outside on Public Property When No Shelter is Available

Cities cannot prosecute people criminally for sleeping outside on public property if they have no home or no other shelter to go to, the U.S. Ninth Circuit Court of Appeals ruled earlier this week. The court held that prosecution under such circumstances amounts to cruel and unusual punishment.
In Martin v. City of Boise, the court found in favor of six homeless people who sued the City in 2009 over two ordinances. The first ordinance made it a misdemeanor to use parks or public places, including streets and sidewalks, for camping. The second banned occupying, lodging or sleeping in any public or private building, structure or public place without permission from the owner or person entitled to possess or control the property.
In 2014, while the case was still ongoing, the ordinances were amended to prohibit their enforcement when the individual is on public property and there is no available overnight shelter. As a result of this amendment, the lower court dismissed the case. The homeless individuals appealed.
Despite the 2014 amendment to the ordinances, the Ninth Circuit found in favor of the homeless individuals. The court concluded that the government may not punish an individual either for being in a state of homelessness or for conduct that is the unavoidable consequence of being homeless — namely sitting, lying or sleeping on the streets. In so ruling, the court resurrected its 2006 opinion in Jones v. City of Los Angeles, which was previously rendered null and void because of an out-of-court settlement. Ultimately, the court ruled that the government may not enforce anti-camping ordinances “as long as there is no option of sleeping indoors.”
In addressing the 2014 amendment to the ordinances, the court noted that the fact that there were three shelters in the City did not solve the problem. Two of the shelters were run by an explicitly religious organization that allegedly required homeless recipients of services to enroll in religious programs to continue using the services. The final shelter was reportedly full almost 40 percent of the time. As a result of the shelter situation, homeless individuals might logically be forced to choose between a night on the streets and enrollment in programming antithetical to her or his religious beliefs.
Importantly, the court limited its decision in several key ways. For example, it made clear that its ruling would not apply to individuals who can pay for temporary shelter and choose not to, or to individuals who have realistic access to free shelter and choose not to use it. Similarly, the court noted that a jurisdiction may, in certain circumstances, criminalize the act of sleeping outside, at particular times or in particular locations.
A spokesperson for the City indicated that the City’s attorneys are taking a closer look at the ruling to determine what steps to take. This includes considering whether to request reconsideration of the case before the entire Ninth Circuit and whether to appeal to the U.S. Supreme Court. 
In response to this decision, cities should carefully review their anti-camping ordinances with their city attorneys to ensure that there are exemptions for where no shelter is available. Cities should also work with enforcement personnel to ensure that adequate procedures are put in place to determine whether shelters are, in fact, available at the time of prosecution.
For more information about this decision and how it may impact your organization, contact the authors of this Legal Alert listed at the right in the firm’s Municipal Law practice group or your BB&K attorney.
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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