Ruling displays struggle to find homelessness solutions

MUNICIPAL MATTERS

For many years, cities have struggled to regulate some of the negative side-effects of the homeless population in an effort to encourage people to not lie down or sleep on public property, particularly public benches, doorways and sidewalks. These measures are called "sit-lie" ordinances, because that is the activity regulated by the proposed or enacted ordinances. To be certain, this issue is one without clear solutions as homelessness is an issue that has continued to grow over the last decade.

The very discussion of sit-lie ordinances raises the ire of people on each side of this issue, each with some valid points. Homeless advocates argue that regulations against sitting, laying down for an extended period of time or sleeping, criminalize activity that is part of human nature, and which is physiologically required by the human body to survive, which has the effect of marginalizing the homeless population. Those proposing regulation argue that the laws apply equally to all citizens and that everyone should have a right to expect sidewalks, doorways, and other public areas to be clean, safe, and free from occupation that prevents use by other citizens.

The 9th U.S. Circuit Court of Appeals recently issued an opinion that gives clarity to public agencies which wish to enact regulations related to sit-lie activity. The city of Boise, Idaho enacted two statutes which worked in tandem. The first statute, titled "Camping Ordinance," defined camping as a temporary or permanent place of dwelling, lodging or residence. The second statute, titled "Disorderly Conduct Ordinance" banned "occupying, 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." Working together, the two ordinances allowed for misdemeanor prosecution of any individuals who sat, laid down, or slept on any public property. Homeless individuals were particularly vulnerable under these ordinances as they were among those most likely to be prosecuted for violations.

In 2014, Boise had a significant and increasing homeless population. At this time, there were more than 750 homeless individuals at any one point in time within the city. However, there were only 354 beds and 92 overflow mats in the city's homeless shelters. Plaintiffs, several homeless individuals in the city, alleged that the prosecution of individuals for sleeping or resting on public property when no reasonable alternative existed was a violation of the Eighth Amendment's prohibition against cruel and unusual punishment.

More specifically, the Eighth Amendment places substantive limits on what activity the government may criminalize. Ingraham v. Wright, 430 U.S. 651, 667 (1977). For example, the U.S. Supreme Court has held that "[e]ven one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold." Robinson v. California, 370 U.S. 660, 667 (1962). In Martin v. City of Boise, 2018 DJDAR 8871 (Sept. 4, 2018), the plaintiffs alleged that being cited for sleeping, which is a biologically required activity, violated the Eighth Amendment's prohibition against cruel and unusual punishment merely because the activity occurred in a public space when no other alternatives were available to these individuals.

In analyzing the limits of government regulation of human activity, the 9th Circuit stated in 2006 that "the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one's status or being." Jones v. City of Los Angeles, 444 F.3d 1118, 1135. Relying on this prior precedent, the Martin Court of Appeals ruled that "[t]his principle compels the conclusion that the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter." The court noted that since "human beings are biologically compelled to rest, whether by sitting, lying, or sleeping" the government may not criminalize homelessness by outlawing conduct that is an "unavoidable consequence of being homeless -- namely sitting, lying, or sleeping on the streets."

The court in Martin held that "so long as there is a greater number of homeless individuals in a jurisdiction than the number of available beds in shelters, the jurisdiction cannot prosecute homeless individuals for involuntarily sitting, lying, and sleeping in public." Notwithstanding the ruling, government agencies are still able to enact sit-lie ordinances without a court ordered mandate to provide sufficient shelter for the homeless. As a result of the Martin ruling, a public agency may enact a sit-lie ordinance provided that it may only be enforced when sufficient sleeping space is practically available in a local shelter.

With homelessness on the rise and without clear solutions in sight, public agencies are still able to balance the needs of all its citizens through the use of a sit-lie ordinance, provided sufficient constitutional safeguards are included in the ordinance. Each side of this issue comes away with some new court delineated rights and some new social obligations. Homeless advocates have obtained a sense of security for their clients in the knowledge that homeless people will not be unfairly prosecuted for sleeping in a public place, and regulators have been given options to enforce sit-lie ordinances provided sufficient space is practically available for homeless individuals to occupy. Until more long lasting solutions to homelessness can be found, this may be a "middle of the road" temporary solution for some public agencies and homeless advocates. To be sure, the issue of homelessness will only grow until real solutions are found.