A federal appeals court has ruled that prosecuting people for sleeping outdoors on public property when they have no shelter available constitutes “cruel and unusual punishment” and therefore violates the Eighth Amendment of the U.S. Constitution.
The decision could impact cities across the western U.S. at a time when homes are becoming increasingly unaffordable, more and more people end up homeless and a rising number of cities enact laws to regulate their presence, including ordinances that prevent sitting, lying or sleeping on public sidewalks and parks.
“We hold only 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,'” wrote Judge Marsha Berzon of the 9th U.S. Circuit Court of Appeals, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
“That is, 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.”
The Sept. 4 ruling concerns a lawsuit brought in 2009 by six residents of Boise, Idaho, who are either currently homeless or were until recently and alleged citations they received under the city’s Camping and Disorderly Conduct Ordinances were unconstitutional.
Boise’s Disorderly Conduct Ordinance bans “[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,” according to the ruling.
The Camping Ordinance makes using “any of the streets, sidewalks, parks, or public places as a camping place at any time” a misdemeanor and defines “camping” as “the use of public property as a temporary or permanent place of dwelling, lodging, or residence.”
For example, a Boise police officer cited one plaintiff, Pamela Hawkes, under the Camping Ordinance for sleeping outside “wrapped in a blanket with her sandals off and next to her,” for sleeping in a public restroom “with blankets,” and for sleeping in a park “on a blanket, wrapped in blankets on the ground,” Berzon noted.
“The Camping Ordinance therefore can be, and allegedly is, enforced against homeless individuals who take even the most rudimentary precautions to protect themselves from the elements. We conclude that a municipality cannot criminalize such behavior consistently with the Eighth Amendment when no sleeping space is practically available in any shelter,” she wrote.
In 2014, the city of Boise amended the ordinances to prohibit their enforcement on any night when the county’s three shelters are full. The city relies on the shelters themselves to call the Boise police department when they are full and two of the three shelters have never done so because their internal policy is to never turn people away due to space constraints, according to the ruling. The other shelter, named Sanctuary, reported being full 38 percent of nights.
But the three-judge panel nonetheless noted that people could still be turned away from the shelters — all of them privately-run nonprofits — for reasons unrelated to space, such as exceeding the shelters’ limits on length of stay or declining to participate in mandatory religious programs.
The city has continued to regularly issue citations for violations of both ordinances, issuing more than 175 such citations in the first quarter of 2015, for example, Berzon wrote.
She described Boise’s “significant and increasing homeless population,” noting that in 2016 there were 867 homeless individuals counted — 125 of them unsheltered — in Ada County, which is where Boise is located. She noted the count was likely an underestimate of the number of homeless people in the county and that the three shelters contain 354 beds and 92 overflow mats total for homeless individuals.
Most of those beds are provided by a Christian nonprofit that prohibits stays longer than 17 days for men and 30 days for women and children unless the individuals join a religious “discipleship” program. In addition to that stipulation, one of the plaintiffs alleged that the nonprofit had required him to attend chapel services before letting him eat dinner.
“A city cannot, via the threat of prosecution, coerce an individual to attend religion-based treatment programs consistently with the Establishment Clause of the First Amendment,” Berzon wrote.
“Yet … an individual may be forced to choose between sleeping outside on nights when Sanctuary is full (and risking arrest under the ordinances), or enrolling in … programming that is antithetical to his or her religious beliefs.”
The cruel and unusual punishments clause of the Eighth Amendment puts limits on what the government can criminalize, according to Berzon. Sitting, lying and sleeping are “universal and unavoidable” to all humans, who have a biological need to rest, she said.
“As a result, just as the state may not criminalize the state of being ‘homeless in public places,’ the state may not ‘criminalize conduct that is an unavoidable consequence of being homeless — namely sitting, lying, or sleeping on the streets,” Berzon wrote.
She noted that the court’s ruling was “narrow” in the sense that it “does not cover individuals who do have access to adequate temporary shelter” but choose not to use it and does not dictate that the city provide sufficient shelter for the homeless or order the city to let anyone who wishes to sit, lie or sleep on the streets do so anywhere and at any time.
“Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible. So, too, might an ordinance barring the obstruction of public rights of way or the erection of certain structures,” she wrote.
“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.”
That means the fate of “sit-lie”ordinances in some cities is unclear. In San Francisco, for instance, it’s a misdemeanor to sit or lie down on a public sidewalk, or on a mattress or other object on a sidewalk, between 7 a.m. and 11 p.m., according to the San Francisco Chronicle. The city attorney’s office told the Chronicle that it was analyzing the ruling to see whether local ordinances fit the court’s standards.
Homeless advocates argue that cities should be spending their funds on providing housing, drug rehabilitation and mental health treatment rather than on prosecuting people who have nowhere else to go.
For instance, San Francisco spends at least $20.6 million per year enforcing its more than 30 “quality-of-life” laws that criminalize homelessness — money that does not reduce the number of people without homes or shrink the city’s waitlist for shelter beds, which had 1,104 people on it as of Wednesday morning, according to the SF Weekly.