Boise formally asked the U.S. Supreme Court to consider its appeal in the case of Martin v. Boise, the “camping lawsuit” that arose from enforcement of a city ordinance that banned people who are homeless from sleeping in public places.
The U.S. 9th Circuit Court of Appeals ruled in September that cities cannot prosecute people for sleeping on the streets if there is nowhere else for them to go, saying that violates the Eighth Amendment and amounts to unconstitutional cruel and unusual punishment.
The city on Thursday filed a petition for a writ of certiorari, 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 whether the Supreme Court will accept it.
“If the 9th Circuit’s ruling is allowed to stand, then cities will not have the tools they need to prevent a humanitarian crisis on their own streets,” Mayor David Bieter said in a news release. “We hope the Supreme Court takes this case to restore the power of local communities to regulate the use of their streets, parks and other public areas.”
The 9th Circuit is the largest court of appeals, and the ruling it made for Boise directly affected all of Idaho, California, Oregon, Washington, Montana, Nevada, Alaska and Hawaii. The decision was considered a victory by advocates for people who are homeless, but cities across the 9th Circuit have struggled to work within the ruling.
In its petition, Boise argues that the 9th Circuit ruling creates a conflict both with lower federal court rulings and with other Supreme Court decisions. It also argues that “at least three other circuit courts — including the First, Fourth, and Seventh Circuits — have rejected” similar rulings.
The petition goes on to say that the “erroneous decision” from the appeals court has been “and will continue to be far-reaching and catastrophic,” saying that will “cripple the ability of more than 1,600 municipalities in the Ninth Circuit to maintain the health and safety of their communities.”
The original lawsuit was filed in 2009 on behalf of Robert Martin and five other people who were then homeless or had been recently. The legal team included lawyers from Idaho Legal Aid Services in Boise, the Washington, D.C.-based National Law Center on Homelessness & Poverty, and international firm Latham & Watkins.
Howard Belodoff, associate director of Idaho Legal Aid Services and one of the attorneys representing the prosecuted homeless people from the beginning, said he felt the 9th Circuit ruled correctly, making a “well-reasoned and accurate decision.” Eric Tars, another attorney on the case and the legal director at the National Law Center on Homelessness & Poverty, agreed.
“The simple fact is that every human being needs a safe, legal place to sleep,” Tars said in an emailed statement. “Far from crippling cities, the 9th Circuit’s decision recognizes this truth and leaves cities a wide range of constructive ways of addressing homelessness which are more effective, and cost-effective, than continuing to lock people up or give them fines for simply needing to sleep safely at night.”
The six people named in the case had all been cited for violating a 1922 no-camping ordinance between 2007 and 2009. In 2014, after the litigation had begun, the city suspended the policy of ticketing for camping when homeless shelters in Boise lack room.
The city wrote 30 citations for camping in 2018, up from six in 2017. Mike Journee, a spokesman for Bieter, told the Statesman in June that no citations had been written in 2019.
There is no guarantee that the Supreme Court will hear the case. It gets thousands of requests each year and typically hears 150 cases or fewer. Boise has hired the powerful Los Angeles-based legal firm Gibson Dunn for the case.
Leading the team are Gibson Dunn partners Theane Evangelis and Ted Olson. Evangelis has been involved with a number of Supreme Court cases and clerked for Justice Sandra Day O’Connor. Olson has argued 63 cases before the Supreme Court, including persuading the Supreme Court not to require a recount of Florida ballots in the 2000 presidential election, sending George W. Bush to the White House.
The city was approached by multiple firms to try to take Martin v. Boise to the Supreme Court, but Gibson Dunn stood out, city officials have said. The city will pay $75,000 for writing the argument and an additional $225,000 if the case is taken up by the Supreme Court and argued, Journee said, calling it a “great deal.”
Boise’s hot housing market can make it difficult and expensive to even search for housing. Rents have skyrocketed, while the cost of owning a home in the area has risen much faster than wages, a Statesman analysis found in May.
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 and other struggles can still make it all but impossible to afford housing. Officials estimate there to be between 120 and 140 chronically homeless people in Boise.
Boise opened New Path Community Housing, an apartment building west of Downtown for 40 chronically homeless families and individuals, in late 2018. It also broke ground in July on the 27-unit Valor Pointe apartments, a similar project with housing and services for homeless veterans, at 4203 W. State St. Valor Pointe is expected to open in 2020.