Over the last year, we have all heard a lot about homelessness in our community – a variety of opinions expressed by elected officials, candidates, and even service providers. What has been missing is the perspective on what legally can and cannot be done to address this important issue. Homelessness is a complicated issue with many facets and misinformation about the feasibility of solution does not do anyone any good.
The current debate in the race for mayor has focused on whether the city should be funding shelters and where. For example, Nadine Woodward was quoted on Twitter as stating “if they build it they will come” and then as the primary approached stated in a TV interview that “shelters are enabling people” and that the city “should not fund programs that enable people.”
Providing shelter to the homeless is a moral obligation that has fallen to our city government. Last winter, when no warming shelters were available, the cost burden fell on the city. If the city had not funded the shelters, there would have been none – and countless individuals would have suffered in the cold on our streets, in our parks, along the river, downtown and in our neighborhoods.
Not only is providing shelter a moral obligation of the city, it addresses the very “problem” that some candidates claim they want to “solve.” Shelters reduce camping in public places, reduce disruption to business and keep our homeless population safe by protecting them against criminals that would prey upon them. Turning people away from shelters is only going to increase visible homelessness and public camping.
But we have city ordinances that prohibit “sit-and-lie” and public camping, right? Yes, we do, but the September 2018 9th Circuit Court of Appeals in the Martin v. Boise case made it clear that enforcement of those types of laws was unconstitutional if a city lacked available shelter space or if it created restrictions to access that space.
The plaintiffs in that case, a group of people experiencing homelessness in Boise, alleged that the city violated their Eighth Amendment rights by outlawing sleeping or camping in public, while Boise failed to offer sufficient shelter. The court agreed and ruled that the Eighth Amendment prohibits government from punishing “an involuntary act or condition if it is the unavoidable consequence of one’s status or being.” The court concluded that Boise’s existing shelters were inadequate in number or imposed barriers (such as those proposed by candidates here) to entry that render them functionally inaccessible. The court held that Boise could not “criminalize indigent, homeless people for sleeping outdoors, on public property, on the false pretense they had a choice in the matter.” In other words, it is unconstitutionally cruel under the Eighth Amendment to punish people for surviving in public space when they have no meaningful choice otherwise.
The Martin decision means that the city of Spokane could restrict shelter access only to those who are sober and exclude those who are under the influence, but by doing so, it gives up the ability to enforce any type of public camping or “sit-and-lie” laws. Courts cannot force cities to build adequate shelter space or make access barrier-free, but they can make it unconstitutional for them to criminalize homelessness until that burden has been met.
So, what is the solution? It is clear that the city must work toward more shelter space that is free of restrictions. This is the right thing to do legally and morally. This is also the right action if we really want to tackle the issue of homelessness – getting people out of the cold, off the streets, and into a safe environment where services, including drug and alcohol counseling, can be offered.
It’s easy during election season to talk about easy or catchy solutions; however, legally and practically speaking, advocating for fewer or limited shelters will only increase the population of homeless people on our streets, in our parks, in downtown and along the river. It also demonstrates to those who visit our community our inability to meaningfully address the problem and our lack of compassion.
Rick Eichstaedt is an adjunct professor at the Gonzaga University School of Law and an attorney in private practice focusing on environmental law, land use, civil rights and Indian law. He is the former director of the Center for Justice.
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