Cities continue to pass homeless camping ordinances

Three years ago, the Ninth Circuit Court of Appeals ruled that punishing people for sleeping on the street amounts to cruel and unusual punishment if they have no place else to go. That case, Martin v. Boise, and others have since helped to shape the way that cities and municipalities approach homelessness. We’ll hear from Seattle University School of Law Professor Sara Rankin about what the current legal framework is for cities addressing homelessness.

Note: The following transcript was computer generated and edited by a volunteer.

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Homelessness policy is one of the most contentious issues facing local governments throughout the West, and there are big questions about what those governments can legally do. One of the key recent precedents is the Martin v. Boise case, which came out of the Ninth Circuit Court of Appeals three years ago. It said that homelessness cannot be criminalized if people have no option of sleeping indoors. Other cases have hinged on different protections guaranteed in the Bill of Rights like the Fourth Amendment, which is focused on property and the 14th Amendment, the Equal Protection Clause. Sara Rankin is a professor at the Seattle University School of Law. She also directs the Homeless Rights Advocacy Project there. She joins us now to talk about homelessness and the law. Welcome to Think Out Loud.

Sara Rankin: Thanks, David.

Miller: Can you remind us more fully what the Martin v. Boise decision said?

Rankin: Yes. So the Martin v. Boise case concerned a group of people experiencing homelessness in Boise and they had challenges finding sufficient shelter there because a number of the shelters in Boise imposed religious requirements on folks who would go to those shelters. And so, there was a question about whether those campers, and residents of Boise, but unsheltered residents of Boise, had sufficient access to shelter. And so the case made its way all the way up to the Ninth Circuit and the Ninth Circuit analyzed it under the Eighth Amendment, which is the prohibition, the constitutional prohibition against cruel and unusual punishment, and determined that the Eighth Amendment prohibits punishing people for circumstances that they can’t control. And the language that the court used is often referred to in Eighth Amendment jurisprudence as quote, “the unavoidable, the universal and unavoidable consequences of being human”. And so…

Miller: In other words, we all need a place to sleep, we all need a place to sit down at times, we all need a place to eat. That’s just part of being human.

Rankin: Right. And the and the Martin Court itself said that that protection extended to conduct that is the unavoidable consequence of being homeless. So that means sitting, lying down, sleeping in public.

Miller: How much leeway did this decision provide to cities and municipalities?

Rankin: In my view, quite a bit. So the city of Boise, in that case, argued that it had sufficient shelter beds to accommodate the homeless population. But as I mentioned, the Ninth Circuit looked more closely and determined that there were a number of obstacles that rendered those shelters functionally inaccessible to many homeless Boisians. And so ultimately, the Martin Court said that as long as there is a greater number of homeless individuals in a particular jurisdiction than the number of available beds, then the government can’t prosecute homeless individuals for those unavoidable consequences of being human.

Miller: How much do some of the particulars matter here? I mean, I bring this up, it could sound silly, but over the years we’ve talked to many people experiencing homelessness who have pets and who have said explicitly that they would rather stay with their pets, even if it means camping outside, than be in a shelter, that’s how important these companions are to them. Let’s say a shelter bed is available, but it’s in a place that doesn’t allow dogs. Does a person who won’t leave their dog behind, have a place to go, in the eyes of a court.

Rankin: There’s all sorts of obstacles that go far beyond just pets, but have to do with being separated from belongings, from spouses, from children. There are all sorts of obstacles that are really well documented that show that a number of people experiencing homelessness would rather sleep outside rather than in shelters because of those very stringent eligibility criteria that really screen out the most vulnerable people. And so those things are open questions about whether any particular court would determine that, under that set of facts, under any particular set of facts, whether that would mean that those shelter beds are functionally inaccessible. The religious, the imposition of religious restrictions that was at issue in Boise is probably a stronger case because that has an overlay of First Amendment issues, right? So people have a right not to be religious and the right not to have to comport with somebody else’s religious views.

Miller: So, meaning if the only shelter beds that are available are places that have religious ceremonies or have a real religious element, in terms of their programming and if you don’t subscribe to that religion, you’d have you, that’s not a bed that’s counted as one that you would have to go to?

Rankin: Right, because people have a right not to be religious, right, under the First Amendment. And so that is a different case. That’s the sort of case that Martin concerned. It’s an open question about whether under any other set of facts, whether the other obstacles that separate people from their pets, separate people from their personal belongings, separate people from spouses, children. Another thing, in addition to separation, it’s really important to understand that when you’re talking about unsheltered people, a lot of people suffer from chronic illnesses and chronic disabilities that make it extremely difficult for them to do well in congregate or crowded environments like shelters. And so there’s a lot of reasons, there’s a lot of very rational reasons why people choose not to avail themselves of shelters and those will still need to be figured out under Martin.

Miller: So we’ve been talking about what the availability of places to sleep indoors means, but I want to focus on the other part of this decision, which is about criminalization. Sweeps are still happening up and down the west coast. This year, after a dip in them earlier in the pandemic, they’ve really been increasing in Portland and in a number of other cities. Is the removal of a tent different from the criminalization of the person sleeping in it?

Rankin: No, the criminalization of homelessness refers to all sorts of laws that prohibit or restrict your ability to engage in a range of basic life sustaining activities. So that could be laws that prohibit or severely restrict your ability to sleep, to sit, to eat, to protect yourself from the elements, to ask for help, all of those sorts of life sustaining activities or things that none of us could forego for long and still survive. And yet there’s a very complicated web of laws across the country that make it impossible for people experiencing homelessness to escape the reach of these laws.

Miller: So just to be clear, because when we’ve talked to city leaders in different sized cities in the northwest, in the last couple of years, when they have talked about sweeps, they have also talked about this Martin decision. So that leads me to assume that they’ve looked at the law. Their lawyers have looked at the law and they’ve decided that when they’re moving people from different areas, whether it’s near a high speed road or some other public area, that they’re doing these sweeps in a legal way, even post Martin v. Boise. Is that a correct assumption?

Rankin: So the nature of cities is always going to be to look for the greatest elasticity in the law, right? Martin v. Boise, any judicial decision is subject to interpretation based on a different set of facts. So what they’re doing is testing how the law might be applied under a different set of facts. It’s really important though, to understand that the law has not hindered any city’s ability to address homelessness, to address the underlying causes of homelessness. Martin has nothing to do with the underlying causes of homelessness. What it is focused on is protecting people from cruel and unusual punishment. The number of cases that are occurring there, there’s a steady stream of litigation, challenging laws that are testing Martin. Los Angeles right now is in the process of expanding it’s prohibition against public encampments. Here in Seattle, our efforts to sweep encampments is ramping up, but it’s also very popular in places in the south where those efforts have actually been to include efforts to make it a felony to sleep outside. So these laws are continuing to proliferate despite Martin.

Miller: We’ve been talking about the Ninth Circuit Court of Appeals ruling, this Martin ruling and the Ninth Circuit has nine Western states. Does it affect the rest of the country?

Rankin: It certainly influences it. After the Ninth Circuit decided that, it went up to the Supreme Court, the U.S. Supreme Court, and the U.S. Supreme Court determined that it was, it basically passed on hearing the case. So to some extent, I think that suggests that that would be sort of the law of the land right, in terms of the nation, but the Ninth Circuit case is the case that really controls the, as you mentioned, the Pacific Northwest and and other jurisdictions within the Ninth Circuit. So there’s a lot of interpretation that’s occurring in terms of what the federal courts say, and there are cases in Florida and in other places outside of the Ninth Circuit that cite Martin.

Miller: As you noted, this Martin decision is tied to the Eighth Amendment’s prohibition on cruel and unusual punishment, but there are other legal strategies that opponents of more draconian, you might say, approaches to homelessness have been using.Can you explain how the Fourth Amendment which, among other things, has protections against unlawful searches and seizures, how has that been used?

Rankin: The 4th Amendment, as you mentioned, relates to unusual, unreasonable property seizures during encampment sweeps. So what we see in practice is very frequently, in the process of encampment sweeps, people don’t just lose their personal property, but they lose items of sentimental value, pictures of children. Some people who have lost veterans have lost things associated with their service. People lose medication. And so those sorts of challenges tend to be pretty successful. It’s one of the more common types of claims that are brought against encampment sweeps. And there have, there’s precedent in the Ninth circuit that says that unhoused people have protected property interest in their own belongings, even if those belongings are left temporarily unattended. And so those cases tend to have a decent success rate. About half of the cases that have been tracked under the 4th Amendment have been successful.

Miller: What about the 14th Amendment, which is about equal protection under the law?

Rankin: Yes, so there’s a number of different theories. When a claim is brought under the 14th amendment, it can be a procedural due process, it’s getting a little wonky, but it can be a procedural due process or a substantive due process claim. It can be a, there’s state created danger claims that basically say that people have a fundamental right to life and bodily integrity. And so, if a state has affirmatively placed somebody who’s unsheltered in some sort of danger by seizing their tent during heat or excessive weather, that that state actor created a danger to that person. So there are substantive due process claims, there’s procedural due process claims, there’s state created danger claims and the 14th Amendment also has a reasonably good rate of success. In fact, overall, we see in the last probably 15 to 20 years or so, more than half of the cases that come through challenging sweeps and encampment sweeps have been successful.

Miller: And yet sweeps are still happening, people are still losing their possessions and in plenty of states in the U.S., legislation is being proposed to try to force homeless people into shelters. Can you give us a sense for what a group called the Cicero Institute is pushing for?

Rankin: Yes, the Cicero Institute is a very well funded libertarian conservative group. It’s the same group, you might recall a few months back, that announced, as it turns out prematurely, that they were going to establish a hypothetical college, I believe they were calling it the University of Austin, and the purpose of it was to basically fight wokeism, and other sort of evils that it perceived to be among the progressive thinking, that it, that the Cicero Institute thinks prevails in higher education. And so this particular group, the Cicero Institute, has been, has a lot of funding, has some very slick marketing that’s been tested and refined. They’re creating videos and other propaganda. They’re creating templates, legislative templates that are being picked up, especially in some jurisdictions in the South. And there is no sort of well funded answer anywhere else on the political spectrum. So, right now, they’re sort of dominating the narrative about, to challenge evidence based practices like housing first, and supportive housing, which have been shown to be the most effective interventions for chronic homelessness for decades and decades. But because the Cicero Institute is among the voices that’s well funded and trying to fight those evidence based practices, there is some momentum towards law enforcement led efforts as opposed to evidence based interventions.

Miller: Let’s dig deeper on this. And as I noted at the beginning, you’re the Director and founder, in addition to being a law school professor, you’re the founder of the Homeless Rights Advocacy Project. We have been focusing pretty narrowly on the legal approaches and legal framework to homelessness policy, but there’s maybe the more important question of what’s effective in terms of ending homelessness or at least responding to it humanely, what would you like to see?

Rankin: So, it’s interesting, you mentioned the Homeless Rights Advocacy Project. I’m also part of an unlikely alliance with business leaders who have all looked at the evidence that, especially when you’re talking about chronic homelessness, unsheltered chronic homelessness, which really is the, it’s a small segment, it’s about 30% nationwide of our overall homeless population would be considered unsheltered and chronically homeless, but that’s the segment of the homeless population that most people see. And so they assume that that’s what homelessness is, when it’s only a small subset. That particular subset has the interventions that are most effective for that particular subset, as I mentioned before, have been studied for decades and shown consistently to be the most cost effective solution to chronic homelessness, would be housing first and permanent supportive housing. Those resources are available on the Third Door Coalition website. They don’t, they’re not all produced by the Third Door Coalition. They’re produced by all sorts of different disciplines, medicine, sociology, there’s some economic studies that have looked at the same question, so that is undeniable data that shows the effectiveness of supportive housing and shows that it’s effective.

Miller: Sara Rankin, thanks very much for your time today.

Rankin: Thank you, David. And could I say just one thing on the solutions front?

Miller: Yeah.

Rankin: I often think people will perceive me as, sort of, only an advocate. And I think it’s so important that all of your listeners understand that we are really all on the same team. This issue of homelessness has become so polarized and so politicized that if we want to see some sort of change, I think we first have to embrace the fact that we all want the same thing. No one wants to see encampments. No one wants people suffering in encampments. We all want things to get better. We all want to end homelessness. So we have to move beyond what divides us and really see ourselves as members of the same team and that means if we really are members of that same team, that want homelessness to get better, the only important question is what’s the most effective way to do it?

Miller: Sara Rankin is an associate professor at the Seattle University School of Law and the Director and founder of the Homeless Rights Advocacy Project. Thank you. Tomorrow on the show, TriMet will be cutting back on services for 10 of its bus lines next month because of staffing shortages. We’re going to hear what these cuts will mean and ask about the agency’s plans to bring in new drivers. Our production staff includes Elizabeth Castillo, Julie Sabatier, Rolie Hernandez, Lucy Suppah, Senior Producer Allison Frost and Managing Producer, Sheraz Sadiq. Nalin Silva engineers the show. Our Technical Director is Steven Kray and our executive producer is Sage Van Wing. If you don’t want to miss any of our shows, you can listen on the NPR One app, on Apple podcasts or wherever you get your podcasts. Our nightly rebroadcast is at 8p.m. Thanks very much for tuning in to Think Out Loud on OPB and KLCC. I’m Dave Miller. We’ll be back tomorrow.

Think Out Loud is supported by Steve and Jan Oliva, the Rose E. Tucker Charitable Trust, Ray and Marilyn Johnson and the Susan Hammer Fund of The Oregon Community Foundation.

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