'No place to go': How Kitsap is responding to a federal court ruling on homeless camping laws

Austen Macalus | Kitsap

Kevin Naughton was sleeping outside a parking enforcement building in downtown Bremerton when a police officer woke him in the middle of the night.

Naughton, 39, says he and a partner had been sleeping on and off at a spot on Fifth Street for about a month — packing up their stuff every morning and coming back after dark. But that changed one night in July.

Around 2:40 a.m., a Bremerton officer told the pair to move along, citing the city’s code prohibiting camping in parks or public places. The officer explained they were not allowed to camp in the city and “that tonight was a warning,” according to the police report obtained by the Kitsap Sun.

“We were actually asleep when they came and told us we were breaking the law: ‘You have to go somewhere else,’” Naughton said in an interview. “And we were like, where? Where do you go? There’s nowhere else to go.”

Naughton says he moved spots, sleeping outside a church, then in a park in West Bremerton. But It wasn’t until later that he learned about Martin v. Boise — a federal court ruling that states that cities can’t criminalize homeless people sleeping outside when there is no other place for them to go.

Over the past year, the court’s decision has set off debate about how cities across Washington and throughout the western U.S. are responding to homelessness — as local officials take stock of their policies and practices around policing homeless camping.

It’s led some cities — including Olympia — to open sanctioned homeless encampments, while others — like Burien — have focused on moving unsheltered people out of parks and connecting them to services.

And the case could be bound for the U.S. Supreme Court, which considered taking up an appeal to Martin v. Boise on Friday.

In Kitsap, like many other counties and communities, some local officials are rethinking enforcement practices as shelters continue to run at full capacity. Bremerton leaders say they’ve stopped enforcing parts of their camping ordinance, with plans to formally modify the law in the months ahead.

However, local homeless advocates say Bremerton police are still moving people sleeping on sidewalks or in public places, often based on individual officers’ own discretion.

At a public meeting in October, Naughton confronted Bremerton Mayor Greg Wheeler about the city’s enforcement practices, threatening to sue if the city didn’t follow the Martin ruling.

“We’re not illegally out there in the street being bothersome. We’re sleeping. Woken up at 2 o’clock in the morning telling us that we’re violating the law because we are camping in the city,” he said. “We aren’t camping. I don’t have a home, sir.”

Wheeler, however, maintains the city does not criminalize homelessness. He says unsheltered people are allowed to sleep, rest or lie in public places so long as they don't block a right of away or set up established encampments.

“We are making doubly sure that your rights are not infringed upon with any of those issues,” Wheeler told Naughton at the meeting. “I will reinforce with my staff — and I have the support of my chief and my upper staff — that we will not criminalize homelessness.”

'We're watching really carefully'

In September 2018, the Ninth Circuit Court of Appeals struck down the city of Boise's camping ban.

The landmark Martin decision found criminal penalties on homeless people “sitting, sleeping or lying outside on public property” when there’s no access to shelter constitutes cruel and unusual punishment and violates the Eighth Amendment.

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

But how extensive is the ruling? What regulations can cities put in place to deal with homelessness and how far can officials go to enforce them? And where can homeless people go in public when there’s no available shelter space?

Kitsap County officials are still working out some of those questions, said Kirsten Jewell, the county’s housing and homeless manager. Kitsap County Commissioner policy staff are currently working on an official policy for responding to homeless encampments, but it hasn’t been finalized.

“We’re watching really carefully how other communities are interpreting this, how they’re responding to this,” Jewell said.

In Olympia, for example, city officials called off a large-scale encampment sweep immediately following Martin. But after opening a sanctioned tent city downtown, the city started enforcing its anti-camping ordinance in unsanctioned spots.

In Burien, city leaders have gone forward with a program that aims to connect people sleeping in public parks with services and shelters and gives them 72 hours' notice to leave. Pierce County, on the other hand, has stopped enforcing its ordinance that prohibits camping on public property.

The Martin ruling is a narrow one, according to the Ninth Circuit Court. The ruling decision doesn’t prevent cities from enforcing some restrictions against public camping, like those regulating when or where, said Seattle University law professor Sara Rankin, the director of the Homeless Rights Advocacy Project.

“Martin v. Boise leaves the door wide open for those sorts of regulations,” she said. “It doesn't say that they cannot manage the homeless.”

Rankin says the decision “reinforces” constitutional protections against punishing people for circumstances they can’t determine, but “it doesn't define it to only mean one thing.”

Instead of enforcement, Rankin said cities should be looking at investing in reasonable alternatives, like permanent supportive housing — which is expected to come to Bremerton in a few years.

“Cities should really sit down and do the hard work of governing,” Rankin said.

Bremerton 'toning' down its anti-camping law

For the past several weeks, longtime homeless advocate Dawn Michele Wilson has been instructing those sleeping on the sidewalks to leave enough room for a wheelchair to pass by.

At least 36 inches, she tells them, in order to comply with the Americans with Disabilities Act.

Wilson has started giving that kind of on-the-streets advice in the wake of Martin v. Boise, hoping to put an end to police continually moving people sleeping outside.

“When police move people along, everyone asks the same question: Where am I supposed to go?” she said.

Right now, Wilson says there’s no clear answer.

Across the Kitsap Peninsula, there’s a range of local policies involving public camping: Bremerton and Poulsbo both have ordinances on the books that prevent camping in public spaces. Port Orchard and Bainbridge Island restrict camping only in public parks. Kitsap County does not have any camping ordinances.

All are far less extreme than the law struck down in Boise, which had made it a misdemeanor to camp on streets, sidewalks, parks or public places at any time.

Most cities in Kitsap have not issued citations for camping in the past five years, according to public records requests by the Kitsap Sun. Bremerton, the only city to enforce its ordinance, has issued 62 citations for public camping since 2015.

Bremerton’s ordinance, unlike Boise’s past law, makes the violation a civil infraction. The city issues a fine of $105 for those in violation. But the ordinance switches over to criminal offense for habitual violators who have three or more infractions within two years.

That could make for problems under the Martin v. Boise, said James Lobsenz, an attorney at Seattle-based law firm Carney Badley Spellman. “It's a guess, but I don't think the Ninth Circuit would allow that,” he said.

And although several cities have started enforcing camping regulations as a civil offense, Lobsenz says that tickets and fines for so-called “camping” ordinances are still unfairly punishing homeless people for living.

“Obviously lots and lots of homeless people, if they were found guilty of this infraction, couldn’t afford this fine,” he said.

Bremerton City Attorney Roger Lubovich says the city is planning to “modify” the city’s camping ordinance. “We’re going to obviously tone it down a little bit,” he said.

The end result could be designating a specific area where people could camp or prohibiting camping in certain places.

“We not sure how we are crafting this thing. We would like to have some flexibility,” Lubovich said. “You need a place to go, but we’re also trying to protect our visitors and residents who can access to public spaces.”

Right now, the city has stopped enforcing its camping code to its “full extent,” Lubovich says. Bremerton police have issued just one citation for camping this year, compared with 18 last year, according to public records.

“We are enforcing the provision to the extent authorized by Boise: You can prohibit camping in certain areas as long as there are other areas to go to,” Lubovich said. “We can still enforce it to some extent and that’s what we're doing.”

City officials determine whether to move an encampment on a “case-by-case” basis. That involves a meeting between the mayor’s staff, city attorney office and police. This summer, for example, city officials moved to clear around 10 people who set up camp on Dr. MLK Way by the Marvin Williams Center.

Wheeler says the city distinguishes between those looking for a place to rest and those setting up an established encampment.

“We can’t deny anybody the opportunity to sit, lie down, rest their heads,” he said, explaining that people are free to go to “any public space” to rest, “as long as you are not violating another code,” like blocking a sidewalk or staying in a park after dark.

But Wheeler says “there’s a bright line” with more entrenched encampments: “The official position from the city: not happening. We respectfully give them 24 hours (to leave).”

For Wilson — who’s spent the last several years working with those on the streets — that doesn’t line up with what's really happening. “Is homelessness criminalized here in Bremerton? We believe yes it is,” she said.

Kimmy Siebens, the founder of the Bremerton Homeless Community Coalition, agreed.

In her view, the city’s approach is not applied consistently: people sleeping outside are still moved along by police depending on the officer, even when there are no other violations, she said.

“The problem is these people don’t have a voice, right, so it's hard to keep track of how many people are being criminalized for camping,” Siebens said. “Even if you say it's not enforced (the ordinance) is still there.”

Wheeler says those who have concerns about specific incidents should contact his office. “That’s not our law enforcement policy. That is not an acceptable process,” he said.

Appealing to the Supreme Court

Immediately after the Martin decision, the city of Poulsbo reviewed its camping ban in public spaces.

That ordinance, passed in 2016, makes “unauthorized camping” a misdemeanor punishable by a fine of up to $1,000, jail time of up to 90 days, or both.

City leaders originally thought they would have to redraft the law; officers were told not to enforce the ordinance while the city reviewed its language. But the ordinance is still in effect more than a year later.

Poulsbo City Prosecutor Alexis Foster says the anti-camping law complies with the Martin decision to a “large degree.” The ordinance contains a provision prohibiting officers from enforcing the camping provisions when no alternative accommodations are available through community service providers, which she said fits the ruling.

And Poulsbo has not had to enforce the ordinance since it was passed. “We’ve been very successful in connecting the few people we’ve had, we've been connecting them to services,” Foster said. “I think it’s not something we have to worry about repealing at this time.”

But Foster still has larger questions about the Martin ruling, like what it means to have available shelter space or how to accommodate transient persons.

“How do we balance this decision with the need to provide public space for everyone in the community so everyone can take advantage of and enjoy those spaces equally?” she asked.

Like many other cities, Foster says Poulsbo is hoping the Supreme Court can provide some answers.

Boise petitioned the high court to consider the case, calling it a “far-reaching” and “catastrophic” ruling that will create “a de facto constitutional right to live on sidewalks and in parks.” The Supreme Court met Friday to considered taking up the appeal.

Aberdeen is one of several municipalities across the west that filed a brief supporting Boise’s appeal, saying ”Martin is being used to permit wholesale appropriation of public property, and to prevent the City from removing unsheltered and homeless persons from public property.”

However, pro-Martin attorneys argue that cities protesting the ruling are missing its point.

“I kind of wish that cities would stop hyper-focusing on avoiding the Martin lawsuit and would instead focus on solving homelessness,” said Tristia Bauman, a senior attorney at the National Law Center on Homelessness and Poverty. The NLCHP was among the groups that filed the Martin lawsuit.

Criminalizing homelessness is wrong — as Martin v. Boise ruled — but it's also not very effective, Bauman said.

“I would urge cities not to have the minimal goal to comply with Martin v. Boise but to pursue good policies that will make outdoor homelessness a thing of the past," she said.