Court Rules Enforcement of “Anti-Camping” Ordinance is Unconstitutional When Homeless Persons Lack Shelter
by Derek P. Cole on September 24, 2018
“Anti-camping” and related “sit-lie” ordinances cannot be enforced against homeless persons who have no access to overnight shelter. As the Ninth Circuit Court of Appeals held on September 4, enforcement under such circumstances effectively criminalizes the status of being homeless, violating the Eighth Amendment’s prohibition on cruel and unusual punishment. The Court’s decision, in Martin v. City of Boise, will make it difficult for local agencies to enforce their “anti-camping” ordinances to the extent they did previously.
The Eighth Amendment
The Eight amendment proscribes not only the types and degree of punishment government may impose; it also places limits on what government may criminalize. Laws that punish drug addiction or alcoholism are cruel and unusual, for instance, because they punish someone for his or her status—in other words, for merely being an addict or alcoholic. These laws are different from those involving conduct—such as those criminalizing the sale of narcotics or for being publicly intoxicated—which are intended to prevent public harms, and thus are properly within the right of governments to enact.
An Effect of “Anti-Camping” Ordinances
As the court observed in Martin, homeless persons in Boise and the surrounding county often have no place to sleep overnight due to limitations in the available shelters. Because these individuals sometimes lack a place to sleep, they at times have no choice but to lie down in public places for, as a biological matter, all humans must rest. The practical effect of the City’s enforcement, therefore, is to make these individuals criminals for a circumstance beyond their control—their lack of shelter. Just as it is cruel and unusual to punish drug addicts and alcoholics solely for their afflictions, the court reasoned, it is cruel and unusual to punish persons for sleeping outdoors when they have no place indoors to sleep.
What the Ruling Means for Local Government
After Martin, can anti-camping and sit-lie ordinances still be enforced? The answer is, yes, but there are important limitations.
The Ninth Circuit was careful to note throughout its opinion that its ruling only precludes enforcement of such ordinances when there are no shelters available to homeless persons. The court made clear that its ruling was not intended to cover the situations where individuals do have access to shelter—whether through their own means or in shelters with available beds—but choose not to use it. The court also noted that even where shelters are not available, an agency may still enforce separate ordinances prohibiting obstructions of public rights of way or prohibiting the erection of unlawful structures.
Ultimately, agencies that wish to enforce anti-camping or sit-lie ordinances must carefully assess the nature and extent of their homeless populations and available sleeping facilities before attempting further enforcement. Many cities are already well aware of the relevant statistics and some, like the City of Sacramento, have suspended enforcement of their ordinances because of shortages in available beds.
After Martin, local agencies can no longer treat camping on public property as a purely code enforcement matter. Agencies may still seek to address the blight and secondary effects that are often found to exist at encampments on public properties. But they cannot do so by simply citing or prosecuting persons found to be in violation of their ordinances. Effectively, Martin imposes a duty on agencies to first make sure the persons whom they intend to cite have a place indoors to sleep and that those persons refuse to avail themselves of such shelter. In this regard, Martin requires agencies to address encampments as a social services matter, not just as a code enforcement one.