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Friday, April 5, 2019
9th Circuit: City Can Only Enforce Sleeping Ban if Shelter Available
By Robert Thomas @ 10:48 PM :: 4889 Views :: Homelessness

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Ninth Circuit: Local Governments Cannot Enforce 24/7 Ban On Sleeping Or Camping On The Sidewalk If Nowhere Else To Go

by Robert Thomas, InverseCondemnation, April 3, 2019

As we've noted before, the growing homeless and "urban camping" situation seems to be getting worse, and in our perception is reaching the point of being intractable. A trip down the sidewalk of any major city  -- if you dare, particularly in the west -- will confirm. And there are no easy answers, except maybe "get used to living with it." Nor is there a consensus whether the law can do anything to remedy the problem.  

The Ninth Circuit's latest foray into this area, this order denying rehearing and rehearing en banc of a panel opinion in a case out of Idaho, confirms. The case is a challenge to Boise's ordinance under the Eighth Amendment's prohibition on cruel and unusual punishments. The panel concluded that the city could not prosecute people for sleeping outside on public property because they have nowhere else to go. Until the city provides them a bed, it can't try to give them a bed (in a jail).

The order is followed by an amended panel opinion, a dissent from the denial of rehearing, an opinion concurring in the denial (arguing that such "dissentals" are disfavored), and a second dissent which focuses on the Eighth Amendment. And somewhat heated words (the expected Red Lily quote, see page 38) and pictures (as above, page 25) from the usually-staid black-robed law lords. 

So what's the law in the Ninth Circuit now, or until the Supreme Court weighs in? Who knows.

We'd take a deeper dive into the opinions to try and get some sense of what this means for Honolulu's "sit/lie" ordinance, which says no to sidewalk camping during certain hours of the day. But this is a busy time on our work schedule in the real world, and we have business to attend to. 

So here's the bottom line in the case. A panel of the Ninth Circuit has ruled thusly:

We consider whether the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to. We conclude that it does.

Slip op. at 38. Because sleeping is a basic human need, and you have to do it somewhere. If a homeless person has nowhere else to sleep, the city can't prosecute them for doing it on the street. Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006) resurrected.

One of the challenged Boise ordinances prohibited sleeping on the streets "at any time." The other was silent about the time, but could be read to prohibit it always. Does this mean ordinances which criminalize sleeping on the sidewalk only during certain parts of the day -- such as Honolulu's -- are not subject to the ruling? It's an argument, for sure. 

And what does the panel's rationale mean for other basic human needs like taking a dump in the street? One of the dissents focused on that: "Moreover, the panel’s reasoning will soon prevent local governments from enforcing a host of other public health and safety laws, such as those prohibiting public defecation and urination." Slip op. at 10 (M. Smith, J., dissenting).

And with two separate dissents from the denial of rehearing en banc (and that concurring opinion decrying such "dissentals"), this case may not be over, and seems teed up for a cert petition. 

Here's more on the decision:

Here's more on what we've posted with our own thoughts on the subject:

No easy answers for sure. 

PDF: Order Denying Rehearing En Banc, Martin v. City of Boise, No. 15-35845 (9th Cir. Apr. 1, 2019)

June, 2018: Caldwell: Outlaw Homeless Blocking Public Facilities While Refusing Shelter Space

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