When can a sidewalk be a home for the homeless?

David G. Savage, Tribune News Service

The Supreme Court is to consider for the first time whether the Constitution gives homeless people a right to sleep on the sidewalk.

The justices are weighing an appeal of a much-disputed ruling by the 9th Circuit Court of Appeals that held last year that it was cruel and unusual punishment to enforce criminal laws against homeless people who are living on the street if a city doesn’t offer enough shelters as an alternative.

The appeals court’s opinion quoted Anatole France’s famous comment that “the law, in all its majestic equality, forbids the rich and poor alike to sleep under bridges,” and from there, it announced a principle of human rights to strike down city laws that “criminalise the simple act of sleeping outside on public property.”

As precedent, Judge Marsha Berzon cited parts of a 1968 Supreme Court opinion in which several justices questioned whether “chronic alcoholics” may be punished for being drunk in public if they cannot control themselves.

“This principle compels the conclusion that the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping or lying outside on public property for homeless individuals who cannot obtain shelter,” she wrote for the three-judge panel. She described the ruling as “narrow ... That is, so long as there no option of sleeping indoors, the government cannot criminalise indigent, homeless people for sleeping outdoors on public property.”

The dissenters — and officials in California and the other eight western states covered by the 9th Circuit’s jurisdiction — said the ruling was anything but narrow. The ruling “shackles the hands of public officials trying to redress the serious societal concern of homelessness,” dissenting Judge Milan Smith wrote.

Unless they can provide shelter for all, “local governments are forbidden from enforcing laws restricting sleeping and camping,” he said. “City officials will be powerless to assist residents lodging valid complaints about the health and safety of their neighbourhoods.”

Los Angeles and many other cities have asked the court to take up the case. The 9th Circuit has jurisdiction in nine western states from Alaska to Arizona.

The appeals court’s ruling struck down a city ordinance in Boise, Idaho, that made it a misdemeanor to camp or sleep on sidewalks, parks or other places without permission. Such ordinances are common in many other cities and towns. The case began a decade ago when Robert Martin and five other homeless individuals joined a suit after they were given fines of $25 to $75 for violating Boise’s anti-camping ordinance.

Los Angeles lawyer Theane D. Evangelis, a partner at Gibson Dunn who represents Boise, called the 9th Circuit’s decision “both nonsensical and unworkable” and said it handcuffs city officials and police who are trying to cope with the homeless crisis. She filed an appeal petition urging the high court to hear the case and to overturn the appeals court’s decision.

“The creation of a de facto constitutional right to live on the sidewalks and in parks will cripple the ability of more than 1,600 municipalities in the 9th Circuit to maintain the health and safety of their communities,” she wrote in City of Boise v. Martin. “Public encampments ... have spawned crime and violence, incubated disease and created environmental hazards that threaten the lives and well-being both of those living on the streets and the public at large.”

Since September, at least 20 friend-of-the-court briefs have been filed in support of Boise’s appeal, including from the National League of Cities, the California State Association of Counties, the Los Angeles Area Chamber of Commerce and seven cities in Orange County.

Meanwhile, lawyers for the homeless said the high court should turn away the appeal. They argue the cities are giving a “distorted” and “dramatically overwrought” reading of the 9th Circuit’s decision.

Maria Foscarinis, executive director of the National Law Center on Homeless & Poverty, said the ruling “rests on the fundamental principle that you can’t criminalise people because of their status. In this case, it is the status of being human with no place to live.” She said she hoped the ruling would prevent cities “from going down of path of criminalization” when dealing with homelessness.

Los Angeles City Attorney Michael Feuer said he urged the high court to take up the case because the city is “seeking clarity.” The 9th Circuit’s opinion was confusing and at times contradictory, he said, adding that it was unclear whether police could enforce any or some laws against people living on the street.

Los Angeles cannot promise it can provide shelter for all of 36,000 homeless people who are living on the streets, he said. But it can provide shelter for some of them, he said, and it is not clear whether officers may take “enforcement action” against those who refuse to go to a nearby shelter that has space for them. He also said it was not clear how much authority the police have to enforce rules against blocking sidewalks, cooking food, spewing garbage or other quality-of-life issues.

The right to sleep on the sidewalk is not a new issue for Los Angeles officials. In 2006, the 9th Circuit handed down a similar ruling in a case called Jones vs. Los Angeles. The appeals court said then that the city could not enforce an ordinance against homeless individuals “for involuntarily sitting, lying and sleeping in public.”

Rather than appeal in that case, the city reached a settlement with the lawyers who brought the suit and agreed to not enforce restrictions on sleeping or camping from 9 p.m. until 6 a.m. That rule remains in force.

The justices are likely to be skeptical about a ruling that relies on the Eighth Amendment to void a criminal law. In the past, the high court has invoked the ban on “cruel and unusual punishments” only to limit punishments for certain crimes. Rulings in 2002 and 2005, for example, relied on the Eighth Amendment to end the death penalty for defendants who had a mental disability or were under age 18 at the time of their crime.

However, the 9th Circuit pointed to a 1962 decision in Robinson vs. California that struck down part of a state law that “made the ‘status’ of narcotic addiction a criminal offense.” The justices said then that people could be prosecuted for selling or using drugs, but they overturned the conviction of a Los Angeles man who had been convicted entirely on the basis that a police officer testified seeing needle marks in his arm.

But that decision stands alone, according to the appeal in the Boise case. No high court decision “has ever invalidated on Eighth Amendment grounds a generally applicable law regulating conduct,” they said.