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Court: It’s no crime for homeless to sleep outside when shelter is not an option

Cities banned from punishing homeless who sleep on public property

An appellate court ruled on Tuesday, Sept. 4th that if homeless people who have no other alternatives are sleeping on public property, cities are prohibited from punishing them, as it would violate the Eighth Amendment.
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An appellate court ruled on Tuesday, Sept. 4th that if homeless people who have no other alternatives are sleeping on public property, cities are prohibited from punishing them, as it would violate the Eighth Amendment.

Stanislaus County’s two largest cities are reviewing a federal appeals court decision that says homeless people cannot be prosecuted for sleeping on public property when they don’t have access to shelter.

Modesto and Turlock as well as other cities and counties that have regulations against camping in public could face being sued if they don’t repeal them.

The 9th U.S. Circuit Court of Appeals ruled this week that prosecuting homeless people who sleep outdoors because there are not enough shelter beds or other alternatives amounts to cruel and unusual punishment and violates the U.S. Constitution’s Eighth Amendment.

The appeals court also ruled that even if a shelter has available beds, that may not constitute an alternative to sleeping on the street if the shelter has religious programming or requirements that violate a homeless person’s own religious beliefs.

A three-judge panel of the court ruled on a 2009 lawsuit brought by homeless people and others challenging Boise’s camping and disorderly conduct ordinances, which ban sleeping in public.

The ruling could have a far-reaching impact. The 9th U.S. Circuit Court of Appeals’ jurisdiction includes California as well as several other western states.

“Criminally punishing homeless people for sleeping on the street when they have nowhere else to go is inhumane,” said National Law Center on Homelessness & Poverty Executive Director Maria Foscarinis in a news release. The Washington, D.C.,-based center was one of the plaintiffs in the Boise lawsuit.

Stanislaus County Superior Court records show Modesto filed 71 cases against people from June through August for violating its ordinances against camping in city parks and on public and private property. Turlock filed 31 cases during the same period for violating its ordinance against camping in city parks and other public areas.

Modesto and Turlock officials said they are assessing the appeals court decision.

“The city is reviewing the Ninth Circuit Court’s ruling carefully for how it impacts Modesto’s current policies and risk exposure,” spokesman Thomas Reeves said in a statement. “We will not cite someone for being homeless, and we will continue to ensure our first priority is offering services for those who need them. “

Interim Turlock City Attorney Jose Sanchez provided this statement: “The City of Turlock is currently evaluating the Court of Appeals’ decision and its potential impact to the City.”

But Eric Tars — the National Law Center’s senior attorney — said he expects cities and counties with ordinances that ban sleeping in parks and other public property to stop enforcing them as they work toward eliminating them entirely.

Tars said the court ruling gives local jurisdictions political cover to provide more shelter and services for the homeless. He said that is a much more effective and less expensive approach than criminalizing homelessness. “I hope what cities do with this is not look at it as a limitation, but as an opportunity to do more,” he said.

Tars said his organization will work with the American Civil Liberties Union and local legal aid groups to notify cities and counties with these ordinances. “Ideally,” he said, “it (repealing the ordinances) should happen without the need of litigation. But we are already looking at a strategy.”

The appeals court ruling comes as Stanislaus County considers declaring what is called a shelter crisis because there are more homeless people in the county than shelter for them.

Annual counts of homeless people in the county and its nine cities show about half are not in emergency shelters or transitional housing but living outdoors.

The shelter crisis declaration would streamline the process to open emergency shelters and lead to more state funding for local homeless programs. The county’s nine cities also could consider declaring shelter crises.

Boise spokesman Mike Journee said the city’s attorneys are reviewing the circuit court’s decision and the city’s options. He said that includes requesting the full 9th U.S. Circuit Court of Appeals to reconsider the ruling or appealing it to the U.S. Supreme Court.

Journee added that Boise stopped citing people in 2014 for sleeping outdoors when there was no room in its homeless shelters. He said Boise police have issued about 20 citations for sleeping outdoors this year.

“We do feel like the language in (the circuit court’s) opinion affirmed what we have been doing for the past four years,” he said.

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