Boise & Garden City

Boise begins to ask U.S. Supreme Court to hear its appeal in homeless camping case

Boise will ask the Supreme Court of the United States to hear its appeal in the case of Martin v. Boise, the “camping lawsuit” that stemmed from a city ordinance that banned sleeping in public places.

The city filed a petition to the court to ask for it to extend the deadline for the city’s writ of certiorari, which is an order of a higher court to a lower court to send documents of a case so that the higher court may review a decision. That request starts the review of the case and the process for determining if the Supreme Court would take the case up.

If the city gets the approval, the deadline will be moved until Aug. 29. Final notification of whether the court would hear the case “should not be expected until October,” according to a city news release.

The 9th U.S. Circuit Court of Appeals ruled in Sept. 2018 that cities can’t prosecute people for sleeping on the streets if they have nowhere else to go because it is unconstitutional cruel and unusual punishment. The court then said in April that it would not reconsider the ruling.

Mayor David Bieter said in a news release that the city is bringing the case forward because it “must have tools to respond to the public health and safety dilemmas created by encampments.”

“By working with partners to provide forward-thinking services to those experiencing homelessness – like Housing First facilities and support of our non-profit emergency shelters – we believe Boise is approaching this issue with thoughtful compassion,” Bieter said in the release. “If the 9th Circuit’s rulings are allowed to stand then no city in the country will have the tools it needs to prevent a humanitarian crisis on its own streets.”

For the time being, the city’s policy is to suspend ticketing for camping when local homeless shelters don’t have room. A total of 30 citations for camping were written in Boise in 2018, up from six in 2017. Mike Journee, spokesman for Bieter, said Monday that no one has been cited for camping in 2019. The city’s ordinances remain in effect “until further clarification can be obtained from the courts,” according to a city release.

Marsha Berzon, one of the three 9th Circuit judges who heard the appeal, said earlier this year that 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. Jailing homeless people is both unconstitutional and “in all likelihood, pointless,” she said.

“The crisis continued to burgeon while ordinances forbidding sleeping in public were on the books and sometimes enforced,” Berzon wrote. “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.”

Housing in Boise has proven has proven difficult — and expensive — to find. The cost of local home ownership has risen much faster than wages, a recent Statesman analysis found, while rents have also skyrocketed. The city has created a “Grow Our Housing” effort to try to address the city’s needs, an initiative that includes relaxing restrictions on backyard apartments and cottages and promoting a “healthy housing ecosystem.”

That’s not enough for many people struggling with homelessness. Even working a full-time job above minimum wage, people are finding that rent prices combined with other struggles can still make it all but impossible to afford housing. Journee told the Statesman on Monday that the city estimates there to be between 120 and 140 chronically homeless people.

The city will be represented by Los Angeles-based law firm Gibson Dunn. The team will be led by Theane Evangelis. She has represented Uber, Yamaha and Starbucks and has argued before the Supreme Court in at least one past case.

Evangelis said in a release that the 9th Circuit’s previous ruling is in conflict with U.S. Supreme Court precedent and other circuit court rulings.

The city will pay $75,000 for writing the argument and another $225,000 if the case is taken up by the Supreme Court and argued, Journee said. He said several firms approached the city to represent it in the case, but Evangelis and Gibson Dunn ultimately stood out. Journee described it as a “great deal.”

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Hayley covers local government for the Idaho Statesman with a primary focus on Boise. Previously, she worked for the Salisbury Daily Times, the Hartford Courant, the Denver Post and McClatchy’s D.C. bureau. Hayley graduated from Ohio University with degrees in journalism and political science.If you like seeing stories like this, please consider supporting our work with a digital subscription to the Idaho Statesman.