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Shawn Vestal: Homelessness case that has candidates talking and cities worried may not be the final word

A resident of a temporary camp set up for homeless people walks out of his tent before the removal of the tent city in front of Spokane City Hall on  Dec. 9, 2018. (Kathy Plonka / The Spokesman-Review)
A resident of a temporary camp set up for homeless people walks out of his tent before the removal of the tent city in front of Spokane City Hall on Dec. 9, 2018. (Kathy Plonka / The Spokesman-Review)

There’s been a lot of talk about Martin v. Boise lately, in our mayoral race and among city officials all over the region trying to figure out their responses to homelessness.

In the Spokane mayoral race, the case is cited regularly by City Council President Ben Stuckart, who argues that under Martin we must build more shelter for the homeless here or we’ll be legally powerless to prevent homeless camps in city parks. His opponent, Nadine Woodward, argues we should wait and see whether the ruling goes to the Supreme Court before adding any shelter space to the system, and just rely on warming shelters in the meantime.

But what does the Martin case say? And what are the best arguments against it – the ones that a conservative Supreme Court might find persuasive if the case ends up there?

In the Martin case, the 9th Circuit Court of Appeals held that it was unconstitutional for the city of Boise to enforce its ordinance prohibiting sleeping on public property if it did not offer sufficient shelter. Boise’s anti-camping ordinance was challenged by six homeless or formerly homeless people – including Robert Martin, who was living in Post Falls at the time of the ruling last September – on the grounds that it violated the Eighth Amendment’s prohibition of cruel and unusual punishment.

In short, a three-judge panel of the court held “that the Cruel and Unusual Punishments Clause of the Eighth Amendment precluded the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter. The panel held that, as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter,” the ruling read.

Crucially, this ruling included the fact that offering shelter with religious requirements or other conditions on their availability – such as exceeding stay limits – was not sufficient to clear their legal standard.

You can’t prohibit camping – or, by extension, enforce a law against sitting on downtown sidewalks like Spokane’s – if you aren’t offering enough shelter. The judges wrote that the ruling is intended to be very narrow – it does not prevent prohibiting the erection of tents in certain places or blocking of sidewalks, for example, nor does it require cities to provide shelter for all homeless people. It says that you cannot prosecute a homeless person for violating a ban on sleeping in all outdoor public spaces when there are no alternatives.

“Nothing in the opinion goes beyond criminalizing the biologically essential need to sleep when there is no available shelter,” Judge Marsha Berzon wrote.

Five judges signed on to a vigorous dissent written by Judge Milan Smith. That dissent sounds to my layman’s ear like a potentially persuasive one before a conservative court that is now backing up President Trump on blocking asylum-seekers.

“In one misguided ruling, a three-judge panel of our court badly misconstrued not one or two, but three areas of binding Supreme Court precedent, and crafted a holding that has begun wreaking havoc on local governments, residents, and businesses throughout our circuit,” Smith wrote, adding that “the panel’s reasoning will soon prevent local governments from enforcing a host of other public health and safety laws, such as those prohibiting public defecation and urination.”

The dissent argues that the ruling judges engaged in was “a predictive model of precedent” – essentially inferring a Supreme Court precedent from a principle expressed in a split decision – and creates splits with other circuit court rulings. Differing rulings on similar issues between circuit courts are the kind of thing that might prompt the Supreme Court to take up a case.

Smith argues that sleeping outdoors is an act, not a status, and that the requirements of adhering to the ruling are practically impossible for large cities. It would require cities to ascertain their homeless populations precisely every day to ensure they’re following the law.

“Such a holding leaves cities with a Hobson’s choice: They must either undertake an overwhelming financial responsibility to provide housing for or count the number of homeless individuals within their jurisdiction every night, or abandon enforcement of a host of laws regulating public health and safety. The Constitution has no such requirement,” he wrote.

Doing nothing while waiting on a resolution in Martin is no way to address the clear and present need for shelter in Spokane. But neither should we lean too hard on the case as the reason to provide shelter – as opposed to the moral, practical and ethical arguments in favor of sheltering human beings in need – because Martin is not settled just yet.