In 2017, California had approximately 134,278 homeless individuals and 68.2% of this population was unsheltered. In response to the influx of individuals sleeping on public property, many cities created ordinances prohibiting people from camping in public spaces (anti-camping laws) and these ordinances allowed law enforcement to issue citations to homeless people for sleeping on public property. However, the recent ruling by the Ninth Circuit in Martin v. City of Boise, holding that public entities cannot punish homeless persons for sleeping on public property when they have no other meaningful options, may cause some cities and law enforcement agencies to re-evaluate the enforcement of their anti-camping laws.
What Public Entities Cannot Do To Address Homelessness:
The plaintiffs in Martin were six residents of the City of Boise that were homeless or had recently been homeless. Each was cited in violation of the City of Boise’s “Camping Ordinance”, which made it a misdemeanor to use any public property as a temporary or permanent place of dwelling, lodging, or residence, and “Disorderly Conduct Ordinance”, which banned occupying, lodging, or sleeping in any building, structure, or public place, whether public or private without permission of the owner. The plaintiffs argued the Cruel and Unusual Punishment Clause of the Eighth Amendment should bar the City of Boise from enforcing statutes that prohibit homeless individuals from sleeping outside when the homeless individuals have no access to alternative shelter. The Ninth Circuit Court of Appeals agreed. The Court stated:
“[S]o 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.’ [Citation omitted.] 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.”
Importantly, the Court specifically stated the holding does not cover individuals who have access to adequate temporary shelter but who choose not to use it. Additionally, ordinances that prohibit sleeping outside at particular times, in particular locations, or which bar the obstruction of public rights of way or the erection of certain structures may be constitutional.
What Public Entities Can Do To Address Homelessness:
The holding from Martin is narrow: public entities cannot punish homeless persons for sleeping on public property when there are no available beds at shelters. The rationale is that public entities cannot criminalize the unavoidable consequences of being homeless (e.g. sleeping on public property) when the individual has no other real options (e.g. an available bed at a shelter).
While public entities are evaluating their anti-camping laws, they should also consider creating or strengthening ordinances that (a) prohibit sleeping outside at particular times or in particular locations, (b) bar the obstruction of public rights of way or the erection of certain structures, (c) regulate aggressive panhandling, (d) prevent a person from being in a playground without a child, (e) regulate dogs within city limits such as preventing unleashed dogs in public areas, and (f) permit law enforcement to seize abandoned property. Also, if feasible, public entities should consider coordinating with shelters within the jurisdiction to create a system where shelters report to law enforcement when they hit capacity on a given night.
Of course, law enforcement can still enforce Penal Code section 647(c), which prohibits individuals from accosting other persons in any public place or in any place open to the public for the purpose of begging or soliciting money. Also, law enforcement should not be discouraged from enforcing other laws that prohibit non-status-based crimes, such as theft, trespassing, vandalism, drug sales, littering, sex crimes, parole violations, impeding automobile or pedestrian traffic, et cetera.
Finally, if a public entity intends to enforce an anti-camping law, it must be done properly to avoid an Eighth Amendment violation. If there are no available beds at shelters, local anti-camping laws and Penal Code section 647(e) cannot be enforced. If there are available beds, the officer needs to (1) confirm that the specific homeless person he/she is in contact with is eligible to stay at the shelter that has the bed available, and (2) try to get the homeless individual into the shelter. If the homeless individual refuses to go to the shelter, the officer needs to document the homeless individual is choosing to violate the ordinance. Ideally, this is done with bodycam footage. Officers need to be mindful of the fact that there are instances where a homeless person may have already exceeded the amount of nights allowed at a specific shelter and, consequently, may not be permitted to stay at the shelter despite an available bed. Or the person may be ineligible because of drug or alcohol use. In those instances, since the homeless person is not permitted to stay at the shelter with the available bed, the local anti-camping laws and Penal Code section 647(e) cannot be enforced.
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