Cooper Brinson, Staff Attorney

On September 4, the Ninth Circuit ruled that “the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to.”

The case, Martin v. City of Boise, dealt with two ordinances in the City of Boise that prohibited sleeping or “camping” in certain public areas. The Court noted that Boise only has three shelters. The shelters were often at capacity, had severely restrictive rules for access, and at least two shelters forced those seeking shelter to submit to intensive “Christian” indoctrination or face removal.

The measures taken by the City of Boise mirror a national trend by U.S. cities to enact ordinances that effectively criminalize the status of being houseless (or the conduct required of a person that is houseless). According to a 2016 report from the National Law Center on Homelessness and Poverty that tracked laws in 187 U.S. cities, “laws punishing the life-sustaining conduct of homeless people [have] increased in every measured category since 2006.” The report notes that bans on city-wide camping have increased by 69%, bans on sleeping in public (city-wide) have increased by 31%, laws prohibiting sitting and lying down in public have increased by 52%, bans on “loitering, loafing, and vagrancy” (city-wide) have increased by 88%, panhandling bans increased by 43%, and bans on living in vehicles have increased by 143%.

At the same time, lawsuits challenging these laws as unconstitutional have also increased—often with success. The NLCHP, in another report, noted that since 2014, favorable litigation outcomes were obtained in “75% of cases challenging evictions of homeless encampments and/or seizure and destruction of homeless persons’ belongings[,] 57% of cases challenging enforcement of camping and/or sleeping restrictions[, and] 100% of cases challenging laws restricting begging and solicitation.”

While these legal challenges have been, for the most part, successful, houseless and other economically disenfranchised groups continue to suffer.

The recent opinion from the Ninth Circuit is unique for several reasons. At the outset of the opinion, a contradiction inherent within legal systems operating under capitalism is noted (though perhaps unintentionally by the authoring judge). Judge Marsha S. Berzon, writing for the majority, opens with the following from Anatole France’s The Red Lily:

“The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

The line is often quoted to illustrate the absurdity of the notion that everyone is “equal before the law.” The notion assumes that we encounter the legal system as equals. Of course, that is not the case. The law can only formally acknowledge the histories of oppression, marginalization, and deepening class division. This formal equality is why we get such absurd interpretations of certain substantive rights. For example, the right to freedom of speech and association articulated under Citizens United: Both rich and poor have the equal right to spend millions of dollars to support a political position/candidate. Generally, the law is powerless to address the substantive inequality inherent (and necessary to) the capitalist mode of production.

Courts have, however, made some feeble attempts to protect certain classes from discrimination. Members of a “protected class” are afforded some protections that prevent discrimination on the basis of race, sex, religion, national origin, etc. But these efforts, for the most part, are limited to the employment context and have failed to address the disproportionate impact of systemic racism, sexism, homophobia, religious persecution, etc. in terms of criminal prosecution. Historically, the courts have declined to extend constitutional protections to an “economic class” as such. Obviously, courts make decisions that inevitably go to support the interest of the rich on nearly every occasion possible (e.g., Citizens United and several recent decisions detrimental to the rights of workers).

However, courts have decided several cases in which enforcement of a law may be unconstitutional because it disproportionally affects a persons’ status or involuntary conduct of that individual. In Martin, the Ninth Circuit cited to these cases and, in line with a previous holding, Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007) (vacated due to an out of court settlement), held that “the conduct at issue here is involuntary and inseparable from status…given that human beings are biologically compelled to rest, whether by sitting, lying, or sleeping.” The Court further held (again citing to Jones), that “just as the state may not criminalize the state of ‘being homeless in public places,’ the state may not ‘criminalize conduct that is an unavoidable consequence of being homeless—namely sitting, lying, or sleeping on the streets.’”

The Court noted the narrow application of its holding (again citing to Jones):

“[W]e in no way dictate to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets…at any time and at any place.” Jones at 1138. “We hold only that ‘so long as there is a greater number of homeless individuals in [a jurisdiction] than the number of available beds [in shelters],’ the jurisdiction cannot prosecute homeless individuals for ‘involuntarily sitting, lying, and sleeping in public.’ That is, 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.” Id.

It remains to be seen, however, how cities will interpret the holding in Martin. In Eugene, where the CLDC is based, it appears that the City will not alter its course when it comes to citing houseless individuals for “camping” and other life-sustaining activities.

The City of Eugene does appear to be taking some steps to figure out the problem of the lack of shelters and housing in the City. However, these efforts seem at odds with the approach of law enforcement to the houseless community. Countless individuals are racking up debts in the form of court fines and assessments and other legal consequences. Naturally, each subsequent citation or arrest deepens the crises that these already marginalized individuals must address. We urge the City to continue exploring ways to address the lack of available shelters and affordable housing and to limit the seemingly counter-productive measures of the EPD.

Recently, the CLDC has taken two cases representing members of the houseless community. One case has already been dismissed. The CLDC is paying special attention to the situation in Eugene in regards to the recent holding in Martin. The CLDC does not charge our clients in these cases, but there are costs (e.g., discovery materials) that we pay out-of-pocket. If you can, please considering sponsoring our work/cases.