A federal appeals court says it won’t reconsider its ruling on Boise’s “anti-camping” ordinance banning sleeping outdoors.
Last September, a three-member panel of the 9th U.S. Circuit Court of Appeals ruled that an ordinance banning sleeping outdoors is unconstitutional if the people it affects have no other options.
The city of Boise asked the appeals court for a rehearing before an 11-member panel. The circuit’s 23 active judges were eligible to vote on the reconsideration request. A majority voted against reconsideration, though the vote results were not disclosed, under the court’s procedures.
The city claimed the three-member panel wrongly determined that plaintiffs Robert Martin and Pamela Hawkes were entitled to seek damages under the Eighth Amendment, which prohibits cruel and unusual punishment. Martin and Hawkes, who were homeless, were cited for violating Boise’s ordinance.
The city contends the pair are not entitled to damages because the citations were dismissed before Martin and Hawkes were convicted.
Marsha Berzon, one of the three 9th Circuit judges who heard the appeal, said in Monday’s ruling that people who have no place to live will sleep outside if they have nowhere else to go. She said the cost of housing, the lack of affordable care for people with mental illness and the failure to provide adequate treatment for drug addiction have contributed to the worsening homelessness crisis.
She said taking homeless people to jail for a few days is both unconstitutional and “in all likelihood, pointless.”
“The crisis continued to burgeon while ordinances forbidding sleeping in public were on the books and sometimes enforced,” Berzon wrote in Monday’s ruling. “There is no reason to believe that it has grown, and is likely to grow larger, because Martin held it unconstitutional to criminalize simply sleeping somewhere in public if one has nowhere else to do so.”
In a dissenting opinion, Judge Milan Smith said the 9th Circuit decision conflicts with precedents from two other circuits. One, from the 4th Circuit on a Virginia case, ruled that citing a homeless person for illegal possession of alcohol in public did not violate the 8th Amendment.
That law was challenged on the assertion that it criminalized the plaintiffs’ status as homeless alcoholics. The appeals court found that it passed constitutional review because it was the act of possessing the alcohol that gave rise to issuance of the citations rather than because the plaintiffs were alcoholics.
“Boise’s Ordinances at issue in this case are no different: They do not criminalize the status of homelessness, but only the act of camping on public land or occupying public places without permission,” wrote Smith, who grew up in Pendleton and is the brother of former U.S. Sen. Gordon Smith of Oregon.
The 11th Circuit, he wrote, upheld an Orlando, Florida, ordinance prohibiting sleeping on public property.
The city has not decided whether to appeal the September ruling to the U.S. Supreme Court, city spokesman Mike Journee told the Idaho Statesman.
That ruling by the 9th Circuit did not force the city to abandon its homeless camping ordinance, he said. “Our ordinances are still in effect,” he said.
Last year, the city wrote 30 citations for illegal camping, after writing six the year before. Journee said citations are written as sparingly as possible.
He noted that New Path Community Housing, with apartments for 40 chronically homeless families, opened last fall. A similar project for homeless veterans is also being built.
Howard Belodoff, associate director for Idaho Legal Aid Services, which has represented Martin and Hawkes in the case, said he was gratified by the ruling. “We think they made the right decision,” Belodoff said by phone.
The city could challenge the earlier ruling that its ordinance is unconstitutional with an appeal to the U.S. Supreme Court. If not, the case would return to U.S. District Court in Boise for litigation on the original claims by Martin and Hawkes.