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Appeals Court: Criminalizing Homeless For Sleeping Outside Is Cruel

A federal appeals court ruled the Eighth Amendment against cruel and inhuman punishment prohibits the city of Boise from prosecuting homeless individuals who sleep outside on public property when they have no home or bed in a shelter.

Six current and former residents of Boise, Idaho, sued the city over two ordinances that were used to criminalize them between 2007 and 2009.

The Ninth Circuit Court of Appeals recognized sitting, lying, or sleeping are all “universal and unavoidable consequences of being human.” The city is not permitted to criminalize sleeping on outside property, especially if there are no beds available at homeless shelters.

According to the decision [PDF], “Boise has a significant and increasing homeless population.”

The count conducted by the Idaho Housing and Finance Association put the number of homeless individuals in Ada County, where Boise is located, at 867 in 2016. At least 125 people were “living in places unsuited to human habitation such as parks or sidewalks.” (Note: The court acknowledges this likely underestimates the true extent of homelessness in the Boise area.)

Two ordinances were used to prosecute the plaintiffs who filed the lawsuit. A “camping ordinance” made it a misdemeanor to use “any of the streets, sidewalks, parks, or public places as a camping place at any time.” A “disorderly conduct” ordinance barred “occupying, lodging, or sleeping in any building, structure, or public place, whether public or private,” especially if the owner did not grant permission.

Pamela Hawkes, one of the plaintiffs who sued the city, was cited for violating the “camping ordinance.” A Boise police officer testified that Hawkes was criminalized for sleeping outside while “wrapped in a blanket with her sandals off and next to her,” for sleeping in a public restroom “with blankets,” and for sleeping in a park “on a blanket” and “wrapped in blankets on the ground.”

“The camping ordinance therefore can be, and allegedly is, enforced against homeless individuals who take even the most rudimentary precautions to protect themselves from the elements,” the appeals court declared. “We conclude that a muncipality cannot criminalize such behavior consistently with the Eighth Amendment when no sleeping space is practically available in any shelter.”

There are three shelters in and around Boise. Each is run by two private nonprofit organizations: Interfaith Sanctuary Housing Services, Inc. and the Boise Rescue Mission.

The Boise Rescue Mission is a Christian nonprofit organization that may bar individuals from their shelters if they choose not to participate in religious services.

Robert Anderson, a resident of Boise and plaintiff, is homeless and has relied on Boise shelters. In the summer of 2007, he stayed at the Boise Rescue Mission’s River of Life shelter for men until he reached the “17-day limit for male guests.”

While at the shelter, Anderson was “required to attend chapel services before he was permitted to eat dinner.” He “declined to enter the discipleship program because of his religious beliefs” after his 17-day stay and was barred from the shelter for 30 days.

“On September 1, 2007, Anderson was cited under the camping ordinance. He pled guilty to violating the camping ordinance and paid a $25 fine; he did not appeal his conviction,” according to the decision.

As of January 2010, the police enforced a new order that prohibited enforcement of the ordinances when shelters had no “available overnight space.” This protocol is highly imperfect and has done little to prevent criminalization of homeless residents.

“If any shelter in Boise reaches capacity on a given night, that shelter will so notify the police at roughly 11:00pm,” the decision described. “Each shelter has discretion to determine whether it is full, and Boise police have no other mechanism or criteria for gauging whether a shelter is full.”

Sanctuary has reported their shelter was full 40 percent of nights, however, BRM never has reported its shelter is full. As a result, police continue to issue citations for violating the ordinances.

The challenge against Boise’s ordinances became noteworthy in 2015 when the Justice Department filed a “statement of interest” in 2015. It argued,“It should be uncontroversial that punishing conduct that is a universal and unavoidable consequence of being human violates the Eighth Amendment.”

“Sleeping is a life-sustaining activity—i.e., it must occur at some time in some place. If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless,” the Justice Department added.

Vanita Gupta, who was the principal assistant attorney general and head of the Justice Department’s civil rights division, contended:

“Many homeless individuals are unable to secure shelter space because city shelters are over capacity or inaccessible to people with disabilities…Criminally prosecuting those individuals for something as innocent as sleeping, when they have no safe, legal place to go, violates their constitutional rights. Moreover, enforcing these ordinances is poor public policy. Needlessly pushing homeless individuals into the criminal justice system does nothing to break the cycle of poverty or prevent homelessness in the future. Instead, it imposes further burdens on scarce judicial and correctional resources, and it can have long-lasting and devastating effects on individuals’ lives.”

The lawsuit against the city of Boise was part of a national “Housing Not Handcuffs Campaign” led by the National Law Center on Homelessness and Poverty, which represented plaintiffs along with counsel from Idaho Legal Aid Services.

While the appeals court decision importantly affirmed the constitutional rights of homeless people, it may only be a temporary barrier to anti-homeless policies. It does not order the city of Boise to provide shelter to homeless people. Nor does the decision address the issue of “defensive architecture” built into public spaces (i.e. benches) to make it impossible for homeless people to sleep there overnight.

The decision makes it even more clear. City and county officials have failed to address a homeless crisis, even as it worsens and impacts more and more children because the number of affordable homes has dwindled significantly.

Photo by niXerKG on Flickr.
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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."