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Appeals court sends challenge of Boise’s anti-camping ordinance back to district court

UPDATED: Tue., April 2, 2019

A homeless person cuddles with a dog outside the Cannon Street shelter, Tuesday, March 12, 2019, in Spokane. The Spokane City Council once again balked Monday on a proposal to ban devices that emit high-pitched noises to disperse young and homeless people from areas near downtown businesses. (Dan Pelle / The Spokesman-Review)
A homeless person cuddles with a dog outside the Cannon Street shelter, Tuesday, March 12, 2019, in Spokane. The Spokane City Council once again balked Monday on a proposal to ban devices that emit high-pitched noises to disperse young and homeless people from areas near downtown businesses. (Dan Pelle / The Spokesman-Review)
By Margaret Carmel Idaho Press

BOISE – A federal appeals court won’t rehear a case related to a controversial ordinance that bans residents from sleeping outside, a policy that has sparked protest in Spokane.

On Monday, the U.S. 9th Circuit Court of Appeals ruled the long-running legal dispute over a Boise anti-camping ordinance will be sent back to U.S. District Court to be litigated further.

A three-member panel of judges for the 9th Circuit ruled against the city in September. The judges said any policy that prevents homeless residents from sleeping on the street is a violation of the Constitution’s protection against cruel and unusual punishment.

Spokane has two similar laws barring people from camping on public property or sleeping and sitting on downtown sidewalks during the day, commonly known as sit-lie. Dozens of activists and homeless people set up camp in front of City Hall last winter to protest the city’s enforcement of the controversial law.

Spokane City Councilman Breean Beggs said the city’s sit-lie law is different from Boise’s because the police don’t enforce it when no low-barrier shelter beds are available.

Beggs said Spokane’s law could be vulnerable to a lawsuit because the term shelter bed is not defined, but police have interpreted it to mean a shelter without religious requirements that has a bed available for whatever gender a person identifies as.

Local police also are enforcing the law with the Boise case in mind, he said.

Beggs has suggested amending the law, and City Councilwoman Kate Burke attempted to get both ordinances repealed. Beggs said several council members are following the court’s decision and would like to amend sit-lie, but there aren’t enough votes behind any one proposal.

The City Council suspended Spokane’s sit-lie law during the winter, until the city’s network of low-barrier warming centers came online, and resumed enforcement in February.

Six Boise residents filed the suit in 2009, which alleged the city had “criminalized” homelessness by issuing tickets to those without shelter for sleeping outside when they had no other place to turn when shelters were at capacity, according to court documents. In 2014, Boise changed its policy to issue tickets only when there was more room in overnight shelters.

Attorneys for the plaintiffs argued this change didn’t solve the problem because Boise’s shelters limit the number of days that homeless residents can stay, the Associated Press reported in September. Homeless people said two of the city’s three shelters also require some form of religious participation for some programs, making those shelters unsuitable for people with other beliefs, according to AP.

Boise city spokesman Mike Journee said the altered ordinance is a part of the city’s overall strategy to help the homeless by encouraging them to use services available. He said the law combined with the city’s partnerships with nonprofits dedicated to those in need help residents get the assistance they need.

“This ordinance is an important part of our effort to help those experiencing homelessness,” he said. “It’s important that when there are resources available for those experiencing homelessness that they avail themselves of that.”

There is no timeline available on when the case will go before the lower court.

The litigation has wended its way through multiple layers of the judicial system and, depending on the results, it could have far-ranging consequences for other Western cities with a growing number of homeless residents. In 2015, a U.S. magistrate granted the city of Boise a summary judgment that dismissed the suit, but the plaintiffs, represented by Idaho Legal Aid Services, appealed, and the case went on to the 9th Circuit and has since been returned to the lower court.

Conflicts surrounding homeless residents sleeping outside came to a head at the end of 2015 when the city removed more than 100 residents from a tent encampment named Cooper Court outside the Interfaith Sanctuary shelter on River Street, according to a previous report in the Idaho Statesman. City officials say the eviction was necessary because of the high concentration of police, fire and EMS calls to the area, public health concerns and fire hazards from open flames near and inside tents. After the mass eviction, the Boise City Council was stormed with protesters who opposed the action and pushed for options for those in need of shelter.

The rising interest in addressing the homeless problem in the city and the conflict in Cooper Court eventually led to the city holding a variety of community dialogues on the topic and endorsing the “housing first” model of homelessness response. This strategy favors placing residents in housing with rental assistance and support services as opposed to emergency shelter. The city opened New Path Community Housing, a “Housing First” development on Fairview Avenue, to help the chronically homeless in Boise at the end of 2018.

Spokesman-Review reporter Rebecca White contributed to this report.

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