Ruling protecting homeless who sleep in parks when they don’t have options remains

Crystal, a homeless resident, gathers up possessions before city workers arrive to remove what city officials say is illegally stored property at Broadway Park in Turlock, Calif., Wednesday, Jan. 9, 2019.
Crystal, a homeless resident, gathers up possessions before city workers arrive to remove what city officials say is illegally stored property at Broadway Park in Turlock, Calif., Wednesday, Jan. 9, 2019.

The 9th U.S. Circuit Court of Appeals has declined to review a case in which it ruled last summer that prosecuting homeless people who sleep in parks and other public property because they don’t have a choice amounts to cruel and unusual punishment and violates the Eighth Amendment.

The decision has had far-reaching consequences because the circuit court’s jurisdiction includes nine Western states, including California. Cities and counties have stopped enforcing their ordinances against people sleeping in parks and, in some cases, have scrambled to provide more shelter beds for the homeless.

For instance, while Modesto continues to enforce its ordinances, it allowed homeless people to camp in Beard Brook Park until recently when it and Stanislaus County opened a homeless camp in the nearby Tuolumne River Regional Park’s Gateway Parcel.

A three-judge panel of the circuit court made the cruel and unusual punishment ruling Sept. 4 as it reviewed a 2009 lawsuit brought by homeless people and others against Boise, challenging the Idaho city’s camping and disorderly conduct ordinances.

Boise asked the panel to reconsider its ruling, and if it declined, requested that the full 25-judge circuit court hear the case. The panel and court declined Boise’s requests. The ruling was posted Monday on the circuit court’s website.

“Today, the court says that people experiencing homelessness cannot be punished for sleeping or sheltering on the streets in the absence of alternatives,” said Eric Tars, legal director at the National Law Center on Homelessness & Poverty, in a news release. The Washington, D.C.,-based center is one of the plaintiffs in the Boise lawsuit.

“But our hope is that tomorrow, cities will begin to create those alternatives,” Tars continued. “(G)etting homeless people into housing is a win-win approach, benefiting both the individuals helped and the communities that no longer have to deal with the negative impacts of people living in public spaces, at lower cost than cycling people through the criminal justice system.”

Tars said in an interview that studies have shown it’s two to three times cheaper to put homeless people in housing with services than to have them live on the streets and end up emergency rooms and jail. He also said Modesto has been among the first jurisdictions in the Ninth Circuit to create alternatives for sheltering homeless people.

The lawsuit can now go back to U.S. district court to litigate its remaining issues, or Boise could reach a settlement with the plaintiffs or decide to ask the U.S. Supreme Court to hear the matter.

While the majority of Ninth Circuit judges voted not to take up the case, Judge Milan D. Smith Jr. wrote a stinging dissent, calling the three-judge panel’s ruling “misguided” and said the panel had “crafted a holding that has begun wreaking havoc on local governments, residents, and businesses throughout our circuit.”

“Under the panel’s decision, local governments are forbidden from enforcing laws restricting public sleeping and camping unless they provide shelter for every homeless individual within their jurisdictions,” Smith wrote. “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.”

Smith added that the panel’s ruling “shackles the hands of public officials trying to redress the serious societal concern of homelessness.” Five other judges joined Smith in his dissent.

But Judge Marsha S. Berzon, who voted with the majority, wrote that the panel’s decision was limited in scope and does not stop cities from enforcing ordinances against people putting up tents, obstructing the public right or way or, quoting from another court ruling, “allow anyone who wishes to sit, lie, or sleep on the streets ... at any time or at any place.”

“This crisis continued to burgeon while ordinances forbidding sleeping in public were on the books and sometimes enforced,” Berzon wrote. “There is no reason to believe that it has grown, and is likely to grow larger, because (the three-judge panel) held it unconstitutional to criminalize simply sleeping somewhere in public if one has nowhere else to go.”