Homeless law's defense declined

Sleeping in public not illegal

WASHINGTON -- The Supreme Court said Monday that it would not hear a closely watched case on whether cities can make it a crime for homeless people to sleep outdoors.

The case was brought by six people in Boise, Idaho, who said a pair of local laws violated the Eighth Amendment's prohibition of cruel and unusual punishment. One prohibited "camping" in streets, parks and other public property. The other prohibited "lodging or sleeping" in any place, whether public or private, without the owner's permission.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco ruled for the plaintiffs and struck down the laws, saying the Constitution does not allow prosecuting people for sleeping outdoors if there is no shelter available.

The Supreme Court typically understands the Eighth Amendment to address acceptable punishments rather than what conduct can be made criminal. But in 1962, it struck down a California law that made being a drug addict a crime on Eighth Amendment grounds.

Relying on that decision and quoting from an earlier 9th Circuit ruling, Judge Marsha Berzon, writing for the panel, said "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."

"As long as there is no option of sleeping indoors," Berzon wrote, "the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter."

Dissenting from the full 9th Circuit's refusal to reconsider the panel's decision, Judge Milan Smith, joined by five colleagues, wrote that the ruling "has begun wreaking havoc on local governments, residents and businesses."

"Under the panel's decision," Smith wrote, "local governments are forbidden from enforcing laws restricting public sleeping and camping unless they provide shelter for every homeless individual within their jurisdictions. Moreover, the panel's reasoning will soon prevent local governments from enforcing a host of other public health and safety laws, such as those prohibiting public defecation and urination."

In their petition seeking Supreme Court review in the case, lawyers for the city said the appeals court had heedlessly created a new right not grounded in the Constitution.

"The consequences of the Ninth Circuit's erroneous decision have already been -- and will continue to be -- far-reaching and catastrophic," the city's petition said. "The creation of a de facto constitutional right to live on sidewalks and in parks will cripple the ability of more than 1,600 municipalities in the Ninth Circuit to maintain the health and safety of their communities. Public encampments, now protected by the Constitution under the Ninth Circuit's decision, have spawned crime and violence, incubated disease, and created environmental hazards that threaten the lives and well-being both of those living on the streets and the public at large."

The petition attracted some 20 supporting briefs, many from cities, counties and states.

But activists, including the National Law Center on Homelessness and Poverty, said the city and its advocates had exaggerated the breadth of the 9th Circuit's decision to try to win Supreme Court review.

"It does no more than prohibit the imposition of criminal penalties against homeless individuals who engage in the simple act of sleeping outside when no alternative shelter is available to them -- something that already is supposed to be prohibited under Boise's current law," the activists said.

"That result is limited in scope, and reflects the ought-to-be uncontroversial principle that a person may not be charged with a crime for engaging in activity that is simply a universal and unavoidable consequence of being human."

Lawyers for the homeless people challenging the Boise laws said the 9th Circuit's ruling was modest and unexceptional.

"The decision below recognizes that it would be cruel and unusual to criminally punish a homeless person who violates the law simply because he engages in the biologically compelled activities of sitting, lying or sleeping outside when he has no place else to go," their brief said. "That result reflects basic common sense."

The case is City of Boise v. Martin, No. 19-247.

Information for this article was contributed by Adam Liptak of The New York Times; and by Robert Barnes of The Washington Post.

A Section on 12/17/2019

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