A prior Alaska Landmine article from August 15 – What the Ninth Circuit Court ruling actually says about camping on city property – details the U.S. Court of Appeals for the Ninth Circuit’s recent decision in Martin v. Boise and other decisions that have shaped the Municipality of Anchorage’s response to homeless individuals camping in public parks. Importantly, that article explains why municipal officials and employees are incorrect when they cite to the Ninth Circuit’s decision in Martin as prohibiting them from addressing this issue. Martin only affects the Municipality of Anchorage’s ability to criminally sanction homeless individuals from camping in public parks and public property. The Martin decision does not prohibit the Municipality of Anchorage from taking other actions to prevent and remove any individual, including homeless individuals, for camping in public places so long as the Municipality does not criminally punish these individuals.

A month after the Alaska Landmine article, retired Alaska District Court Judge Stephanie Rhodes, who is credited with starting Anchorage’s mental health court, echoed that conclusion in an article to the Anchorage Daily News:

Our municipal leaders act as though these decisions bind their hands and prevent any real enforcement of prohibitions against illegal camping and public nuisances.

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Court decisions only protect involuntarily homeless people from being charged with a crime for failing to leave a public space unless there is indoor shelter available for them. They also protect property rights when they are removed. No law grants the right to occupy and defile public land. No law or court sanctions the semi-permanent “homesteads” or “communities” of illegal camps erected for the convenience of those who want to live in public parks.

The prior Landmine article ended by explaining that Boise was appealing the Ninth Circuit’s ruling to the U.S. Supreme Court. This update explains what has occurred at the U.S. Supreme Court since the August 15 article.

On August 22, 2019, Boise filed its Petition for Writ of Certiorari with the U.S. Supreme Court. To have your case heard by the Supreme Court, which gets to largely pick and choose which cases it will review, you must convince four of the nine justices that your case is worthy of review. Rule 10 of the U.S. Supreme Court’s rules explain what attributes of a case are likely to make it appealing to the U.S. Supreme Court: (1) circuit splits, meaning different circuits of the U.S. Court of Appeals have come to different conclusions on the same issue; (2) a state supreme court decided an important question of federal law that conflicts with another decision from a state supreme court or circuit of the U.S. Court of Appeals; and (3) state supreme court of a U.S. Court of Appeals has decided an important question of federal law that has not yet been, but should be, decided by the Supreme Court.

In other words, to get the Ninth Circuit’s decision reviewed by the U.S. Supreme Court, the City of Boise needs to show either a split of opinions between U.S. Courts of Appeal or state supreme courts and federal courts, or that the case involves an important issue of federal law that the Court should resolve. Here, the federal question is whether the Eighth Amendment’s prohibition on cruel and unusual punishment prevents the City of Boise from issuing criminal citations to homeless individuals camping on city property.

Boise’s Petition asserts that all of the Rule 10 factors that make a case attractive are present. Boise states that the Martin decision conflicts with the U.S. Supreme Court’s decisions making it lawful for local governments to penalize a person’s “conduct,” but not their “status.”

In Robinson v. California (1962), the U.S. Supreme Court held that a state law making it a crime for a person to be addicted to narcotics violated the Eighth Amendment. In Powell v. Texas (1968), the Court upheld against an Eighth Amendment challenge a Texas law that made it illegal to be drunk in public. Justice Thurgood Marshall, who wrote for the plurality of the Powell Court, explained that because the Texas statute: “ha[d] not sought to punish a mere status,” but rather imposed upon the defendant a criminal sanction for public behavior which may create substantial health and safety hazards, both for the defendant and for members of the general public, and “which offends the moral and esthetic sensibilities of a large segment of the community,” the law did not violate the Eighth Amendment.

Conversely, the California law in Robinson – which was ruled unconstitutional by the U.S. Supreme Court – made it a crime to be addicted to narcotics, regardless of where that person was and whether they posed a risk to anyone else or whether their conduct offended the moral or esthetic sensibilities of the public. Boise pointed out that its ordinance prohibiting camping in public places fit squarely into the Powell line of cases that are punishing conduct, and not a person’s mere status. Boise claims in its Petition that the Ninth Circuit’s decision in Martin that Boise’s ordinance is unconstitutional under the Eighth Amendment is contrary to the Court’s decisions in Powell and Robinson.

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Boise also asserted that there was a circuit split amongst federal circuit courts and state supreme courts. Boise pointed to the following decisions as contrary to the Ninth Circuit’s Martin decision:

California Supreme Court. In Tobe v. City of Santa Ana (1995), the California Supreme Court upheld an ordinance against an Eighth Amendment challenge that made it “unlawful for any person to camp, occupy camp facilities or use camp paraphernalia in . . . any street [or] public parking lot or public area.” In 2015, a California appellate court applied the Tobe ruling to an ordinance passed by the City of Sacramento and held that “Sacramento’s ordinance punishes the act of camping, occupying camp facilities, and using camp paraphernalia, not homelessness. . . . Because the Eighth Amendment does not prohibit the punishment of acts, plaintiffs’ challenge based on cruel and unusual punishment lacks merit.”

Eleventh Circuit. In Joel v. City of Orlando (2000), the Eleventh Circuit upheld against an Eighth Amendment challenge a City of Orlando ordinance that provided “camping is prohibited on all public property except as may be specifically authorized by the appropriate governmental authority.” The Eleventh Circuit explained that a “distinction exists between applying criminal laws to punish conduct, which is constitutionally permissible, and applying them to punish status, which is not.” Because the Orlando ordinance punished someone for camping and not merely for being homeless the Eleventh Circuit held the ordinance did not violate the Eighth Amendment.

First, Fourth, and Seventh Circuits. Boise says that these circuits have concluded, contrary to the Ninth Circuit’s Martin decision, that the Eighth Amendment’s prohibition against cruel and unusual punishment exempts “involuntary conduct” (such as the biologically required function of sleep) from generally applicable criminal laws (such as the ordinance prohibiting camping on public property).

Boise also asserted that the Ninth Circuit’s decision was impractical because bigger cities like Boise – such as Los Angeles, San Francisco, Portland, and Seattle -lacked the amount of beds required by the Martin decision to enforce the camping ban. “In Los Angeles County, for example, there are nearly 22,000 shelter beds available, but the homeless population approaches 60,000.”

On September 24-25, 2019, numerous individuals, corporate entities, and local governments filed amicus briefs supporting the City of Boise’s position and asking the U.S. Supreme Court to reverse the Martin decision. An amicus is a “friend of the court,” and an amicus brief is the brief filed by a non-party to the lawsuit that claims it will be particularly affected by the lower-court decision. Among the amicus supporting Boise’s request for Supreme Court review of Martin are seven states including Alaska; the City of Los Angeles; 33 other California cities including Sacramento, Fresno, and San Diego; and several state-wide California law enforcement associations.

The Municipality of Anchorage did not file an amicus brief.

On October 25, 2019, the Martin Plaintiffs, which are the homeless individuals that brought the lawsuit to enjoin Boise’s anti-camping ordinance, filed their opposition to Boise’s Petition. Not surprisingly, the Martin Plaintiffs take the position that the U.S. Supreme Court should not review the Ninth Circuit’s decision. This is common, as it is rare that a litigant that prevails in a court wants that judgment reviewed by another court, lest it be reversed.

The Martin Plaintiffs make the following arguments against U.S. Supreme Court review:

Boise mischaracterizes the Ninth Circuit’s decision. The Martin Plaintiffs state that contrary to Boise’s claims, the Martin decision does not prohibit Boise from enforcing its anti-camping ordinance if an individual has the means to pay for shelter elsewhere or a shelter is available for sleeping. Plaintiffs also complain that the Ninth Circuit only prohibited ordinances that criminalize “biologically compelled” conduct, such as sleep.

Martin is harmonious with Robinson and Powell. Plaintiffs point out that the Supreme Court’s decision in Powell upholding the Texas ordinance that criminalized public drunkenness was a fractured opinion with no opinion having a majority of the justices join.

Martin does not conflict with the California Supreme Court’s decision in Tobe because that case involved a facial challenge (a claim that the law is unconstitutional under any set of facts) and Martin only involved an as-applied challenge (a claim that the law is unconstitutional only to the individuals bringing the lawsuit because of their status). The Supreme Court should not take into account the California appellate court decision from 2015 coming to the same conclusion as Tobe for an as-applied claim, because that court isn’t California’s highest court.

Martin does not conflict with the Eleventh Circuit’s decision in Joel v. City of Orlando, because in that case Orlando put forward unrefuted evidence that was available space at its shelters when it cited the homeless for camping in public.

As to the alleged conflict with First, Fourth and Seventh Circuit’s decisions that involuntary conduct is not exempt from generally applicable laws, Plaintiffs assert that Martin did not decide something so broad. Instead Martin only decided that involuntary and biologically necessary conduct was exempt from criminal punishment under the Eighth Amendment.

As to the practical consequences, the Plaintiffs point out that the Ninth Circuit only prohibits criminal punishment of homeless individuals camping on public property. In the words of Plaintiffs, Martin only prohibits the arrest and imprisonment of homeless individuals. No other government enforcement of the ordinances is barred by Martin.

What Comes Next

Under the Supreme Court’s rules, the clerk of the court will distribute Boise’s Petition and the Plaintiffs’ Opposition on November 8, 2019. Then, the Court will decide whether to grant review or not of the Martin decision. There is no rule governing when the Court must issue a decision on whether it has granted review or not. It takes four out of the nine justices to vote in favor of review for the case to be accepted by the Court.

Statistically, it is a longshot for anyone to convince the U.S. Supreme Court to review a lower court decision. According to ScotusBlog.com (which is a well-trusted resources on Supreme Court goings on) the Supreme Court receives “well over 7,000 annual petitions for certiorari” and the court accepts roughly 70 cases each year. That puts a litigant’s chance of obtaining review at a whopping 1%. However, a litigant’s chances go up if it can show that there are conflicting lower-court decisions, or it is a critical matter of federal law that needs to be decided. There is certainly much media attention on this issue, and several states and cities have told the Court how important this case is to their health and safety.

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If the U.S. Supreme Court takes the Martin case, then the parties will start a new round of brief writing in which they tackle the merits of the Ninth Circuit’s decision in Martin. The merits turn on whether the Eighth Amendment to the federal Constitution prohibits the government from enforcing anti-camping laws that criminally punishing homeless individuals who are camping on public land when the government has not provided enough shelter beds for homeless individuals to utilize that day. This briefing will take several months to complete. After that briefing is completed, the Court holds oral argument where the parties argue in Court in front of the nine Justices.

Lee Baxter is a practicing Anchorage attorney. He provides periodic legal analysis for the Landmine in his spare time – when he is not fishing.