On December 16, 2019, the Supreme Court of the United States declined to review the Ninth Circuit’s decision. A copy of the order can be found here. As such, the Ninth Circuit’s decision remains in effect. The California Joint Powers Insurance Authority (California JPIA) encourages cities and municipalities to review the advice at the end of this post.
On September 4, 2018, the United States Courts of Appeals for the Ninth Circuit, in reviewing an appeal from a motion for summary judgment, ruled in Martin, et al. v. City of Boise that the Eighth Amendment of the United States Constitution prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter. An amended opinion was filed on April 1, 2019.
This case was brought by six current or former residents of the City of Boise (“City”) who are homeless or were recently homeless. Each Plaintiff alleged that between 2007 and 2009, he or she had been cited by Boise police for violating the City’s Camping Ordinance (Boise City Code § 9-10-02) and/or the City’s Disorderly Conduct Ordinance (Boise City Code § 6-01-05). The City’s Camping Ordinance made it a misdemeanor to use “any of the streets, sidewalks, or parks, or public places as a camping place at any time.” The Camping Ordinance defined “camping” as “the use of public property as a temporary or permanent place of dwelling, lodging, or residence.” The Disorderly Conduct Ordinance banned “[o]ccupying, lodging, or sleeping in any building, structure, or public place, whether public or private . . . without the permission of the owner or person entitled to possession or in control thereof.” In 2014, the City amended both the Camping Ordinance and Disorderly Conduct Ordinance to preclude the City from enforcing the ordinance when there was no available shelter space.
At all times relevant to the case, there were three homeless shelters in the City that offered emergency shelter services. All of the three shelters were run by private, nonprofit organizations. All three shelters agreed to notify City police if they reached capacity on a given night.
One of the shelters, “Sanctuary”, was operated by Interfaith Sanctuary Housing Services, Inc. This shelter was open to men, women, and children and imposed no religious requirements on its residents. Sanctuary reached capacity for men “at least half of every month”, and the women’s area reached capacity “almost every night of the week”.
The remaining two shelters were operated by Boise Rescue Mission (“BRM”), a Christian nonprofit organization. BRM limited the duration of stays to 17 consecutive days for men and 30 consecutive days for women and children. After the time limit was reached, homeless individuals could not return to the shelters for at least 30 days unless they joined the Discipleship Program, an “intensive, Christ-based residential recovery program” of which “[r]eligious study is the very essence.” While BRM agreed to inform the police of their capacity, its internal policy was never to turn any person away because of lack of space, and neither BRM shelter ever reported to City police that it was full. As such, City police continued to issue citations under both ordinances.
The Ninth Circuit first addressed whether two of the six Plaintiffs had standing to challenge the constitutionality of the City’s Camping and Disorderly Conduct ordinances based on a credible threat of prosecution in the future when they are unable to stay at any City homeless shelter. The Court found that Sanctuary was often full for men, and even though BRM never turned away individuals for lack of space, they did refuse shelter space for those people who exhausted the number of days allotted by the facilities. As such, the Court held that there remained a genuine issue of material fact as to whether homeless individuals in the City run a credible risk of being issued a citation on a night when Sanctuary is full and they have been denied entry to BRM shelters for reasons other than shelter capacity. The Court determined that this essentially amounted to no shelter availability and concluded that the two Plaintiffs had standing.
Notably, in determining that these two Plaintiffs had standing, the Court highlighted that the facts appear to demonstrate that BRM’s services all had a religious component, which homeless individuals would have to participate in in order to avoid the time limits on stays at the shelters. The Court also cited to the Plaintiffs’ objections to the overall religious atmosphere of the BRM shelters, which had Christian messaging on the shelter’s intake form and Christian iconography on the shelter walls. The Court remarked, “A city cannot, via threat of prosecution, coerce an individual to attend religion-based treatment programs consistently with the Establishment Clause of the First Amendment.”
The Ninth Circuit then considered whether the Cruel and Unusual Punishments Clause of the Eighth Amendment precluded the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter. Relying heavily on the now-vacated Ninth Circuit opinion in Jones v. City of Los Angeles, the Court recognized that the Eighth Amendment prohibited the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being. It stated that the state may not “criminalize conduct that is an unavoidable consequence of being homeless – namely sitting, lying, or sleeping on the streets.” As such, the Court held that “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.”
However, the Ninth Circuit insisted that its ruling is narrow, stating “we in no way dictate to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets . . . at any time and at any place.” Significantly, in footnote 8, the Court specifically clarifies that the holding “does not cover individuals who do have access to adequate temporary shelter, . . . but who choose not to use it.” The Court also stated, “Nor do we suggest that a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside. Even when shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible.” The Court further hinted that an ordinance barring the obstruction of public rights of way or the erection of certain structures may be constitutionally permissible. The Court concluded, “Whether some other ordinance is consistent with the Eighth Amendment will depend, as here, on whether it punishes a person for lacking the means to live out the ‘universal and unavoidable consequences of being human’ in the way the ordinance prescribes.”
Given this opinion, cities and municipalities are strongly advised to review immediately any ordinance that may impose criminal penalties for sitting, lying, or sleeping on public property especially in those jurisdictions that do not have sufficient shelter space to accommodate all the homeless individuals who reside in their jurisdiction. This review should not be limited to simply “camping” ordinances, but any ordinance that could criminalize any conduct that is the unavoidable consequence of being homeless, primarily sitting, lying, or sleeping. The review should focus on whether such ordinances are consistent with the Ninth Circuit’s holding or whether repeal or amendments are appropriate. Finally, for those cities and municipalities that rely on shelters self-reporting their capacities in order to determine when to enforce such ordinances, those jurisdictions may wish to revisit those self-reporting protocols to ensure that shelters are accurately self-reporting, to determine whether there may be reasons other than capacity that may result in homeless individuals being turned away, or to develop measures by which the jurisdiction will confirm these self-reports.
A copy of the Ninth Circuit’s decision can be read here.
Providing innovative risk management solutions for its public agency partners for more than 40 years, the California Joint Powers Insurance Authority (California JPIA) is one of the largest municipal self-insurance pools in the state, with more than 100 member cities and other governmental agencies. Members actively participate in shaping the organization to provide important coverage for their operations. The California JPIA provides innovative risk management solutions through a comprehensive portfolio of programs and services, including liability, workers’ compensation, pollution, property, and earthquake coverage, as well as extensive risk management training and loss control services.
By Kimberly Chin with Allen, Glaessner, Hazelwood, Werth