The Boise decision survives
How can you penalize people for sleeping on the street when they have nowhere else to go?
In Martin vs. City of Boise, six homeless people had challenged that city’s enforcement of ordinances prohibiting sleeping or camping on public property at night.
Judge Marsha S. Berzon wrote in September 2018 for the U.S. 9th Circuit Court of Appeals that sitting, lying and sleeping are “universal and unavoidable consequences of being human.” As long as there is no option of sleeping indoors, she said, “the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.” To do otherwise, she concluded, would violate the 8th Amendment’s ban on cruel and usual punishment.
That was a smart and important decision for the Western United States, where the 9th Circuit is located, including for Los Angeles, where the number of unsheltered people living on sidewalks and in parks and beneath underpasses has grown alarmingly over the last few years. The Supreme Court’s decision this week to let that decision stand reaffirms the basic human and civil rights of homeless people.
It should be obvious by now that rousting people from one sidewalk only to have them move to another street corner is a pointless exercise. It’s even worse to fine or put people in jail for being on the sidewalk when they have nowhere else to go. They can’t afford to pay, and when they leave jail they’re often back out on the street.
The focus of city and county officials now should not be on prettifying the city streets or sweeping the homelessness crisis out of sight, but on expanding the number of shelters and creating permanent support housing, and on making the encampments that remain less of an invasive presence.
We need that focus. While thousands of bridge shelter beds and units of permanent housing are expected to open over the next several years, creating them has been a slow process that has not gotten enough people off the streets fast enough. Even though tens of thousands of people have been housed, new people appear to be falling into homelessness at an even greater speed.
In the months ahead, the bureaucratic red tape that still binds and constricts homeless housing projects needs to be reduced or dispensed with. Los Angeles needs to be innovative and nimble and bold. Are so-called tiny houses — often no bigger than garden sheds — a temporary answer? What about safe parking lots for people living in their cars? Mayor Eric Garcetti said a couple of weeks ago that the city was planning to open more safe parking lots. Should L.A. follow the lead of New York and legislate a “right to shelter” for the homeless? If so, would that come with an obligation to take shelter?
While no one should have to live in a homeless encampment, and L.A. residents should not have to traverse an obstacle course of tents in their neighborhoods, the fact is, they are there — at least for the moment. Encampments need receptacles for trash that can be collected regularly the same way people in houses and apartments get theirs picked up. And the city needs to work harder and faster at putting up public toilets. We know it’s complicated and expensive, but it has to become a priority.
The Supreme Court had been inundated with dozens of briefs from cities and counties — including Los Angeles — insisting that the Boise ruling would complicate or thwart local efforts to get unsheltered homeless people off the streets. We hope that’s not the case.
The city of L.A., for example, still moves homeless people out of areas in danger of flooding during rain or burning during fire-risk weather. And the city still moves people off sidewalks on days when sanitation workers clean the sidewalks. We certainly hope those policies are not considered to be violations of the Boise decision. Mayor Garcetti has proposed creating bridge shelters in certain communities and, in return for community buy-in, has promised to enforce anti-camping laws in those areas. That policy struck us as a reasonable trade-off and we would hope that such approaches are not forbidden under Boise.
In any case, we’re heartened the message has been sent that homelessness is not a crime and that solutions to the problem must be found that do not violate the rights and most basic needs of the homeless. We hope the Boise decision will move the conversation and the planning away from enforcing ordinances to getting more shelter and housing online quickly.