As cities continue to determine what they can do to address the housing needs of people experiencing homelessness, now is the time to be mindful of a recent legal decision — especially if your city is located in the Ninth Circuit (which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington).

In Martin v. City of Boise, the Ninth Circuit held that if a person experiencing homelessness has no option of sleeping indoors, a city cannot cite him or her for violating an ordinance disallowing sleeping outside in a public space.

While the letter of this decision has specific legal implications, the spirit of the decision falls in line with a Housing First strategy. For more than a decade, federal partners, led by the U.S. Interagency Council on Homelessness, have worked with communities to prioritize placing people experiencing homelessness into housing as rapidly as possible and providing the necessary supportive services to successfully maintain housing.

Studies of the Housing First strategy have shown it can minimize the human and financial costs of homelessness. However, fines and fees related to citations under anti-camping ordinances can have the unintended consequence of making it more difficult for people experiencing homelessness to secure housing.

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The City of Boise, Idaho adopted a camping ordinance and a disorderly conduct ordinance which made it a misdemeanor to camp or sleep on the streets, sidewalks, parks, or public places. Boise has a significant homeless population and three homeless shelters run by private, nonprofit organizations. While one of the shelters never turns people away for lack of space it does refuse to shelter homeless people who exhaust the number of days allotted by the facilities.

One of the plaintiffs in this case was cited after he reached the shelter’s 17-day limit for male guests. To continue staying he would have had to join the Discipleship Program, which he declined to do because of his religious beliefs. The Ninth Circuit concluded the First Amendment’s Establishment Clause prevents a city from coercing a homeless person to enroll in a religious-based program at a homeless shelter.

Plaintiffs argued, and the Ninth Circuit agreed, that enforcing a statute prohibiting sleeping outside in public spaces against individuals experiencing homelessness with no access to alternative shelter violates the Eighth Amendment’s prohibition against cruel and unusual punishment. In Robinson v. California (1962) the Supreme Court struck down a California statute criminalizing narcotic addiction because it made a disease a criminal offense. In a later decision five Justices gleaned from Robinson the principle that “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.”

According to the Ninth Circuit, “[t]his principle compels the conclusion that the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” In other words, just as a city may not criminalized being homeless in a public place it also may not “criminalize conduct that is an unavoidable consequence of being homeless — namely sitting, lying, or sleeping on the streets.”

The court went to some length to explain how its holding is narrow. Specifically, “we in no way dictate to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets . . . at any time and at any place.” The court also stated that its holding does not apply to those who can pay for temporary housing or have free housing available to them and choose not to use it. The court further explained: “Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible. So, too, might an ordinance barring the obstruction of public rights of way or the erection of certain structures.”

The Ninth Circuit decision is only binding law on the states in the Ninth Circuit. Notably however, it appears to be the first federal court of appeals holding that the Eighth Amendment prohibits criminalizing people experiencing homelessness for sleeping outdoors, on public property, where no beds are available at homeless shelters. In 2000 in Joel v. City of Orlando, the Eleventh Circuit upheld an anti-camping ordinance similar to Boise’s against an Eighth Amendment challenge. In Joel, however, the City presented unrefuted evidence that the homeless shelters in Orlando had never reached capacity. Also in the 1990s, federal district courts in Texas and Florida held that sleeping in public ordinances as applied against people experiencing homelessness were unconstitutional.

Martin v. City of Boise doesn’t require cities to do anything; instead it requires cities in the Ninth Circuit not do something—arrest people experiencing homelessness for sleeping outside in public spaces when they have nowhere else to go. The case also highlights a problem that many cities have—inadequate beds for people experiencing homelessness in non-coercive environments. If cities could help solve this problem, arresting people for sleeping outside wouldn’t even be necessary.

As cities continue to grapple with the byproduct of our nation’s housing affordability crisis, local leaders can use this ruling as a chance to engage residents and key stakeholders about what cities can and cannot do to address homelessness. While there are no easy answers, city officials can use this opportunity to underscore the importance of developing comprehensive and balanced housing strategies so that all residents can have a home.

To date, more than 500 local elected officials have committed to making homelessness rare, brief, and one-time, beginning with our Veterans through the Mayors Challenge to End Veteran Homelessness. While 65 communities across 33 states have achieved the goal of the Mayors Challenge, cities will need additional resources from federal partners to sustain this progress and expand it to other homeless subpopulations, such as the chronically homeless.

In recognition of this fact, NLC, in partnership with the Mayor’s and CEOs for US Housing Investment campaign and the Opportunity Starts at Home campaign, has endorsed a bill to create a bipartisan affordable housing task force to better understand and respond to America’s affordable housing crisis. Senators Todd Young (R-IN), Maria Cantwell (D-WA), and Angus King (I-ME), along with Senators Dean Heller (R-NV), Tim Kaine (D-VA), Doug Jones (D-AL), Cory Gardner (R-CO), Marco Rubio (R-FL), and Chris Coons (D-DE) recently introduced “The Task Force on the Impact of the Affordable Housing Crisis Act of 2018” (S.3231). This is an important and momentous step for Congress to deeply study the country’s housing affordability challenges in a bipartisan way and to jointly articulate robust solutions — and cities are ready top be part of the solutions. City leaders may take action to support the bill by clicking here.

About the Authors: Elisha Harig-Blaine is the Program Manager for Housing at the National League of Cities (NLC), connecting local leaders to best practices and efforts working to ensure all veterans have a safe place to call home. He has worked at the local, state, and federal levels on homelessness and housing for more than 15 years.

Lisa Soronen is the executive director of the State and Local Legal Center, which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.

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