Boise appeals ruling on whether cities can ban sleeping on the streets

The city of Boise on Tuesday asked a federal appeals court to reconsider a ruling on its “anti-camping” ordinance, an issue with ramifications for other Western cities grappling with homeless populations.

A three-judge panel of the 9th U.S. Circuit Court of Appeals decided earlier this month that an ordinance banning sleeping outdoors is unconstitutional if the people it affects have no other options available. It remanded the matter back to the original court that heard it for further action.

In its petition, the city claims the panel wrongly determined that plaintiffs Robert Martin and Pamela Hawkes, homeless people who were cited for violating the ordinance, were entitled to seek damages under the Eighth Amendment. The city contends Martin and Hawkes are not entitled to damages because the citations were dismissed before they were convicted.

Since the case began, Boise has adjusted its law to forbid citing campers if the city’s homeless shelters are full. That bar has never been reached, the 9th Circuit panel wrote, due to the Boise Rescue Mission’s policy of not turning people away for space reasons at its two shelters.

The appellate panel concluded the current ordinance is still a concern, with time limits and religious programming at the BRM shelters possibly giving people no choice but to sleep outside at times. But until a more direct ruling, Boise officials say their ordinance remains in effect.

“As far as we’re concerned the ordinance stands, until we hear differently from a final court,” city spokesman Mike Journee said.

The city has issued 22 citations this year, through July. Last year, it cited six people, Journee said.

“We’re not talking about a huge number of citations being handed out,” he said.

Journee said there are 120 to 140 people the city considers chronically homeless. When the lawsuit was filed, attorneys for the homeless residents said as many as 4,500 people in Boise didn’t have a place to sleep, with homeless shelters offering space for about 700 people, the Associated Press reported.

Journee pointed to other housing efforts currently under way. New Path Community Housing, which will provide housing for 40 homeless people, is set to open in November at 2200 W. Fairview Ave. Authorities have also discussed building 25 apartments for homeless veterans in Boise, a project that would finish in fall 2020.

Other cities, including Portland, Los Angeles and Everett, have faced similar lawsuits contesting ordinances regarding sleeping by homeless people in public spaces. Modesto, California, in response to the 9th Circuit ruling, just opened up a city park to camping while it works on a more permanent solution for its homeless residents.

A call late Tuesday afternoon to the National Law Center on Homelessness and Poverty, whose lawyers were among those representing the plaintiffs, went unanswered. A message at Idaho Legal Aid said the staff was away this week for training.