Robert Martin no longer lives as a homeless man in Boise, as he once did.
But Martin, who is now a North Idaho resident, visits that city several times a year to see his son. And when he does, he doesn’t have a place to sleep.
Sometimes he stays in his car, according to court documents. Sometimes his attorneys have helped him rent a hotel room. Sometimes he seeks a place to sleep at one of Boise’s homeless shelters.
And that means he occasionally finds himself with nowhere to sleep.
Martin’s experiences, along with those of a handful of other homeless people, are at the heart of last week’s ruling by the federal 9th Circuit Court of Appeals that it is unconstitutional for a city to prosecute a homeless person for resting on public property when there is no shelter available.
To do so, the court rules, amounts to cruel and unusual punishment, in violation of the Eighth Amendment.
Interesting timing here in Spokane with winter coming and the recent loss of some 150 shelter beds, at least until next year. Sitting and lying is probably on the rise. Our own sit-lie ordinance, passed in 2013 after contentious debate, has been enforced in a fairly soft and helpful way since its implementation – officers try to direct people “caught” sitting and lying on downtown sidewalks during the daytime to social services or community court, rather than to regular court or even jail.
Still, the underlying ordinance is, and always was, a bum’s rush, whose chief goal was to remove street people from the sightline to the Apple store. Nothing had prevented the police from telling homeless people where the shelters were before the ordinance, and nothing since would prevent the city from changing course and enforcing the law with fines and jail time – at least, maybe, until now.
The 9th Circuit said, in essence, that prosecuting a homeless person for sitting or lying on a sidewalk is criminalizing homelessness. And criminalizing homelessness, recall, was exactly what the proponents of the sit-lie ordinance insisted it was not – often passionately and defensively, often with hurt feelings at the very suggestion.
That was just one feature of the debates over homelessness and street people downtown that led up to the City Council’s 2013 prohibition on sitting and lying on sidewalks between 6 a.m. and midnight. Those debates were marked by a whole lot of people doing a whole lot of talking about problems that had a whole lot of nothing to do with sitting or lying – activities like drug use, drug dealing, harassment, aggressive panhandling, nuisance skateboarding and other already illegal behavior – in support of a law making it a crime to sit or lie or sleep.
The social services dimension was nice, but it was always chiefly a tool to hustle away the homeless, focused more on the type of person involved than the behavior. I feel sure that I and any number of my fellow 50-year-old middle-class white guys could sit or lie on any street in town without anybody calling the cops.
In reviewing the arguments in the case brought by Martin and five other plaintiffs, the judges took particular aim at legal precedent that prohibits the state from “punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being.”
That quotation comes from the U.S. Supreme Court case Robinson v. California, which invalidated a law criminalizing the “status” of narcotic addiction. You could prosecute the conduct of drug use or sale, the courts ruled, but not the status of addiction itself. To do so would be a violation of the Eighth Amendment, criminalizing conduct someone is powerless to change.
In the Boise case, the 9th Circuit concluded that the conduct of sitting or lying on a sidewalk is inseparable from the status of being homeless, citing another case that “they are one and the same, given that human beings are biologically compelled to rest,” and if no shelter is available, sitting and lying on public property “is an unavoidable consequence of being homeless.”
The ruling is fairly narrow. Homeless people can still be prosecuted for breaking the law, of course, and sit-lie ordinances may still be constitutional when shelter is sufficient, or in certain areas of a municipality. Cities cannot be required to provide shelter; they just can’t punish the homeless for sleeping outside if they don’t. The effect of the ruling on Spokane’s law is still unclear; as Boise has done since the lawsuit was initially filed, Spokane doesn’t enforce the ordinance when shelters are full.
Which brings us back to Robert Martin – the Martin in Martin v. City of Boise.
The 9th Circuit ruling says Martin now lives in Post Falls; other records from earlier in the case indicate he might have also lived in the Hayden area. I attempted to contact him through one of his attorneys, without success.
But the court files lay out his experiences briefly: He was cited for violating a Boise ordinance against sleeping outside on city property in 2009 and 2012. He left Boise in 2013, but returns regularly to visit his minor son.
A peculiar part of the system in Boise is that, while the city doesn’t enforce its sit-lie law when the shelters are full, one of Boise’s shelters never reports itself to be full – while sometimes barring access to people who refuse to participate in its religious programs. In other words, police there never considered the shelters full, even if some homeless people were being turned away.
“Should Martin return to Boise to visit his son,” the court concluded, “there is a reasonable possibility” that he would find himself without a shelter bed.
If that happens, the court says, Boise simply cannot make it a crime for him to engage in acts that are “universal and unavoidable consequences of being human” – sitting, lying, sleeping.