The Ninth Circuit Court of Appeals came down
on the City of Boise's embattled anti-camping ordinances—long accused of targeting the homeless sleeping outdoors—in a Sept. 4 ruling, but the city may not 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 Ninth 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 Specifically, our officers do not cite people for camping when our local shelters have no space."
On Tuesday, the Ninth Circuit Appellate Court agreed with plaintiffs in Martin v. City of Boise, formerly known as Bell v. City of Boise, that the city violated plaintiffs' Eighth Amendment rights when it issued citations for sleeping or camping in public under its Camping and Disorderly Conduct Ordinances.
Boise's Camping and Disorderly Conduct Ordinances prohibit people from sleeping on public property, and in 2009, a collection of civil rights-oriented groups and attorneys filed suit on behalf of a number of homeless people who had received citations for violating them. The city has been embroiled in legal battles over the issue ever since.
In a 2015 flashpoint, U.S. Magistrate Judge Ronald Bush dismissed Bell v. City of Boise on the grounds that the plaintiffs had insufficient standing in the case. 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. The Ninth Circuit Appellate Court accepted their argument Sept. 4, and in its opinion, it wrote, "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 city hasn't indicated what its response will be, though Journee said the city is consulting with its attorneys and hasn't ruled out appealing the decision. The plaintiffs and critics of the city's ordinances, however, hailed the decision as a victory.
"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.
Other municipalities and local governments have likely eyed the progress of the case with an eye toward rules and ordinances of their own. 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 simple bedding, according to Deseret News
. In April, a judge threatened
to bar Orange County in California from enforcing its own anti-camping laws.
"We are hoping that this does cause a similar conversation in a lot of other communities," said Eric Tars, senior attorney with the National Law Center on Homelessness & Poverty, who added that housing-first and supportive-housing initiatives are more effective. "We want people off the streets. The way to get there is the question."
Tars said his organization prefers cities tackle homelessness head-on, and anti-camping ordinances arise when constituents pressure city leaders to deal with visible homelessness. Tuesday's decision, he said, gives cities "an out," freeing them to pursue other methods like housing-first initiatives and supportive housing. (In 2017, the City of Boise and other stakeholders broke ground on the New Path Community Housing
The case, he said, is just one more in a long string of court decisions confirming the unconstitutionality of a whole matrix of laws that have been passed to combat homelessness.
"In addition to this case, which just came down on the Eighth Amendment and camping, we've had a whole series of cases that have struck down panhandling ordinances, Fourth Amendment search and seizure, so the message from the courts is clear: This entire approach to homelessness is not a constitutional one," he said.