Municipalities must find new solutions to homeless after Supreme Court refuses to help them

The U.S. Supreme Court declined Monday to review an appellate decision that says people can't be punished for camping in public places when no other shelter is available, solidifying a controversial policy driver for West Coast states grappling with a growing homeless problem.

The denial of a petition for a writ of certiorari in a lawsuit out of Boise, Idaho, means cities without homeless shelters could be prohibited from enforcing anti-camping and other ordinances aimed at quelling loitering by homeless people in public places.

"It's going to have a big affect on California because it will now require our cities to actually create housing for homeless people rather than thinking they just can push them around on the street and move them from campground to campground," said Oakland attorney Daniel M. Siegel, a partner at Siegel & Yee who's involved in ongoing lawsuits related to homelessness. "A lot of local governments have just been hanging their hopes that the Supreme Court would grant review."

The 9th U.S. Circuit Court of Appeals in September 2018 reversed key parts of a trial court summary judgment, holding that six Boise citizens with no access to shelter were improperly cited for camping and disorderly conduct violations under the Eighth Amendment's ban on cruel and unusual punishment. The City of Boise paid Gibson, Dunn & Crutcher LLP $75,000 for the Supreme Court petition and was to pay another $225,000 if it proceeded to oral argument, said city spokesman Mike Journee. The high court received 20 amicus briefs on behalf of dozens of stakeholders, including three statewide police associations, the California State Association of Counties, the City and County of Los Angeles, and at least 40 other counties and cities as well as the states of Idaho, Alaska, Indiana, Louisiana, Nebraska, South Dakota and Texas.

Latham Watkins LLP teamed with Idaho Legal Aid Services in the appeal and to oppose the cert petition. Filed by partner Michael E. Bern, the opposition said it's "rare to find a petition that so thoroughly distorts the decision below and so brazenly asserts harms it previously disclaimed."

Gibson Dunn partner Theane D. Evangelis said Monday jurisdictions in the 9th Circuit "continue to work hard to address the complex problem of homelessness and, as an overwhelming number of amicus briefs supporting the Court's review also argued, the Ninth Circuit's decision ultimately harms the very people it purports to protect."

"As the case now returns to the district court for further proceedings, the City of Boise will be evaluating next steps," Evangelis said in an email.

As the 225,000-population capital city of Idaho, Boise has since 2014 been enforcing anti-camping ordinances only if the city's homeless shelters has empty beds. Meanwhile, plaintiffs attorneys have used the 9th Circuit's ruling as a basis for civil rights lawsuits around California, including lawsuits over homeless camps in Santa Cruz and Oakland.

In Orange County, U.S. District Judge David O. Carter is overseeing an unprecedented consent decree that gives him power over municipal services in defendant cities. The case began as a civil rights dispute over the county's plan to close a 1,000-person homeless camp along Anaheim river in 2018. Carter halted the closure with a temporary restraining order then instead of considering an injunction worked with attorneys, law enforcement and elected officials to move people from the camp to motels, then into new social services programs and shelters that are continuing to open. Several Orange County cities voluntarily entered the lawsuit to join the consent decree, and Bellflower in Los Angeles County joined in September.

The decree means Carter acts as a mediator when problems arise over homeless camps and ordinances enforcement. He regularly accompanies police and city officials as they dismantle camps, including a recent 4:30 a.m. outing in the City of Fullerton.

The judge recently addressed Martin v. Boise directly in a speech Dec. 6 at a United Way event on homelessness, warning that if it was overturned, the old system of pushing homeless people from city to city would continue.

"The end result is my court's going to get flooded with [American with Disabilities Act] lawsuits and discrimination lawsuits that's going to eat my city council alive, and I'm deathly afraid of that for local government," Carter said. "Because our money's better spent other places."

Enforcement, however, isn't occurring everywhere in Orange County. Cities in South Orange County hired Jones Day attorneys to fight a lawsuit over the lack of a homeless shelter in the area, and the attorneys successfully persuaded Judge James V. Selna to disqualify Carter from the case because of concerns he was biased against the cities.

The lawsuit transferred to U.S. District Judge Percy Anderson and has since been dismissed. However, the Orange County sheriff's department, citing Martin v. Boise, is refusing to enforce anti-camping ordinances in those South County cities because they don't have a shelter.