DAVID STUZIN—Of the many constitutional cases argued of late, lawyers and law students on the East Coast may have missed Martin v. City of Boise, a case argued before the Ninth Circuit. At stake in Martin was an issue that hit on a fault line of important American values. On the one hand, this case was about the right of state and local governments to police public spaces for the health and safety of their constituents. On the other, this case was about the right of individuals experiencing homelessness to exist in those jurisdictions at all.
The case centered around two Boise city ordinances that made it illegal to sleep or camp in public spaces and whether enforcing those ordinances against Boise’s homeless population was unconstitutional. The plaintiffs, a group of people experiencing homelessness, argued that enforcement of these laws against the homeless was a form of cruel and unusual punishment under the Eighth Amendment. If Boise could not offer them alternative shelter, they argued, people experiencing homelessness in Boise had no other choice but to sleep in public spaces. Therefore, criminalizing the conduct of sleeping or camping in public was, in effect, the same as making it illegal to be homeless within Boise city limits. This, plaintiffs concluded, was unconstitutional following the Supreme Court’s ruling in Robinson v. California, which held that it was cruel and unusual punishment for a state or local government to criminalize a person for their status – in that case as a drug addict – separate from any clear criminal conduct.
The city of Boise argued in its defense that those ordinances “sought to reduce the serious health, safety and environmental dangers” that camping and sleeping in public can pose to both Boise’s citizens and its public spaces. The city argued, further, that because those ordinances applied to all citizens, not just those experiencing homelessness, they were targeted at the conduct of sleeping or camping in public and not at just the homeless population. Rather than discriminating against those citizens experiencing homelessness, the city argued that, on the contrary, they had internal policies against issuing citations when a person is unable to find shelter space.
In late 2018, Judge Berzon, writing for the Ninth circuit, held for the plaintiffs, ruling 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.” Following that, the city of Boise filed a petition for rehearing, which the court denied in April of last year, and, shortly thereafter, the city filed a petition for certiorari in the Supreme Court. Although several interested parties filed amicus briefs urging the Court to take on the case, including the city of Los Angeles and the States of Texas, Alaska, and Idaho, the Court ultimately denied certiorari, allowing Martin to stand.
One of the main reasons so many cities and states have expressed an interest in this case is that homelessness has been on the rise across America, particularly in major metropolitan areas where the cost of housing continues to rise faster than wages. Cities such as Miami, who earlier this year dissolved a consent decree that protected the homeless population from being arrested for engaging in “life sustaining” conduct, have struggled to manage their populations of people experiencing homelessness without police intervention. Many cities and states fear, that a ruling like Martin would limit their ability to address the size of homeless encampments as well as the health and safety risks such encampments pose.
Still, advocates on behalf of people experiencing homelessness, such as the National Law Center on Homelessness & Poverty, argue that policies that criminalize homelessness are not just cruel, but expensive and ineffective when compared with just providing affordable or public housing. These advocates feel that cities pursue criminalization strategies because they are a quick and politically expedient way to manage homeless populations. However, they argue that these strategies do not solve the underlying issues of homelessness and, in many cases, they worsen it by citing individuals experiencing homelessness with fines they cannot pay or by giving them a criminal record that makes it more difficult to find work or housing.
Whatever the ultimate legacy of the Martin case, one thing that seems clear is that the U.S. must do more to address the issue of domestic homelessness. Even if the sorts of ordinances under contention in Martin remain a tool for cities to rely on in managing homelessness, alone, they will not fix the issue. The only thing that can do that is for all governments in America, from the federal to local level, to ensure that Americans have access to sustainable and affordable housing.
