Cities Keep Making Being Homeless A Crime. Is That Legal?

Officials in Lacey, Washington recently came to what they saw as a reasonable solution to the escalating concerns about homeless people sleeping in tents in local parks and campers outside City Hall: They’d make it a crime.

Lacey had plenty of role models to base that decision off of. In the past year, cities like Centennial, Colorado, San Clemente, California, and Beaverton, Oregon, have passed similar laws punishing people for sleeping in tents or cars in public places. In Honolulu — which has one of the highest rates of homelessness in the country — police officers have repeatedly descended on makeshift tent cities to arrest homeless people. In San Diego, police reportedly swept tent cities and handed out citations right before the city’s annual homeless count.

The number of these bans has increased by 60% over the past eight years, according to the National Law Center on Homelessness & Poverty.

Lacey’s City Council joined them on June 13, unanimously passing a law allowing cops to fine people up to $1,000 or sentence them to jail for 90 days for camping in public places if there’s a shelter bed available locally. Outraged advocates say there often isn’t a bed available, making the law largely pointless.

Read more: California wildfires could usher in a new wave of homelessness.

That’s the case in many of the West Coast cities pursuing so-called “anti-camping” laws. In September, the 9th U.S. Circuit Court of Appeals ruled it was unconstitutional for Boise, Idaho, to ticket a person for sleeping on the street if they didn’t have an adequate shelter available to them. Instead, cities in that circuit — including Lacey — could impose fines only if there was space for a homeless person in a shelter but they were camping instead.

Dozens of cities within the 9th Circuit had laws banning camping on public property outright regardless of shelter space. Homeless advocates, meanwhile, hoped the decision would inspire a move toward more affordable housing, and give them a better chance at fighting these stricter camping bans in cities outside of the 9th Circuit, like Denver.

In the throes of an affordable housing crisis that’s pushing people to live on the streets, cities across the country are grappling with heated legal and ethical questions about addressing homelessness. Particularly in the Western states, the number of unsheltered homeless people has jumped since 2007. In South Dakota, for instance, the rate of people living on the streets has risen nearly 600 percent, according to the National Alliance to End Homelessness.

Cities argue that so-called camping bans incentivize people to seek shelter and can ultimately keep people safe. Advocates say criminalizing camping only ensures people stay homeless for longer, and ultimately violates the Eighth Amendment, which bars cruel and unusual punishment.

At least one federal court has sided with that argument. The judges in the 9th Circuit case — Martin v. Boise — determined in September that it was cruel and unusual to ticket the homeless people for something out of their control: having nowhere to sleep but the street. The judges said, though, that it was fine to ticket people if there was available shelter space and they’re sleeping in a public space anyway.

Boise was displeased. It’s now trying to get the Supreme Court to take up the case. In the meantime, cities have been toeing the line.

For example, Santa Cruz, California, kicked everyone out of their homeless encampments in April with the permission of a federal judge and a promise to hand out vouchers to nearby hotels and shelters. Police in Oakland, California, evicted a homeless camp for women and children in December after a federal judge said the Martin ruling didn’t necessarily establish a “constitutional right to occupy public property indefinitely.” The city also said it offered residents shelter.

Lacey City attorney David Schneider, who helped draft the new ordinance, said it’s completely compliant with the 9th Circuit ruling, and said the city “has the right to limit the areas in which camping can occur.”

Lacey city officials assure their camping ban will be carried out compassionately, and that homeless people will rarely be ticketed.

“It makes me very worried,” said Tye Gundel, co-founder of the grassroots organization Just Housing in Thurston County, home to Lacey. “There’s no guarantee that it won’t be used.”

Lacey, a middle-class suburb of about 51,000 near Washington state’s capital of Olympia, has an affordable housing crisis exacerbated by its fast-growing population, according to city research. As of January, nearly 400 people were unsheltered in Thurston County.

Read more: Hawaii may consider homelessness an illness.

Safety in numbers, a lack of available shelter space, and strict shelter rules drive homeless people to pitch tents in encampments across the nation.

The Martin ruling didn’t draw a bright line about what it means to have “adequate shelter.” That means homeless people within the 9th Circuit can still be fined for refusing to go to a shelter that doesn’t have space for their family or their belongings.

As Beth Colgan, assistant professor of Law at UCLA, noted, the Martin ruling heavily relies on precedent set in the 1962 Robinson v. California case, which ruled it was unconstitutional for the state to lob a misdemeanor charge on drug users under a law that made it illegal “to be addicted to the use of narcotics.” Basically, it was wrong to punish someone for something out of their control. The Robinson case also concerned an Eighth Amendment violation.

“If there’s no meaningful choice; you can’t criminalize that,” Colgan said. “If there’s nowhere else for you to go, the police cannot punish you for that behavior.”

Since Lacey doesn’t have a homeless shelter, tickets are unlikely to be handed out. Lacey Councilwoman Carolyn Cox said she testified against an almost identical ordinance when it was proposed in 2017, when she was a candidate. But as the problem in her city has grown worse, she’s hopeful the city can implement the ban compassionately once it provides alternative shelter.

“All cities are struggling with homeless response in terms of how we don’t run afoul of the 9th Circuit Court’s ruling,” she said. “We need to give our police department a tool so they can at least approach people and figure out what their circumstances are.”

The homeless camps can present serious public health concerns. Workers tasked with cleaning such camps in Seattle complained of used syringes, human feces, and copious garbage. In Los Angeles, which is also affected by the 9th U.S. Circuit Court ruling, a police department employee tasked with caring for homeless people contracted typhoid fever.

According to the most recent data from LA County, nearly 59,000 people are homeless there — a stunning 12% increase from last year. A homeless encampment in Olympia, near Lacey, swelled to hundreds of tents last year. In many cases, cities’ go-to solution until shelters are built is to simply push the problem homeless somewhere else — without a ticket.

“I don’t want to see encampments any more than a city does,” said Eric Tars, legal director at the National Law Center on Homelessness & Poverty. “But you should eliminate it permanently, by putting people into housing, instead of sweeping them off one corner so they move to the next corner.”

Cover: David Andre, a homeless man who has been camping outside the Sacramento City Hall, demonstrates Monday, Jan. 4, 2016, in Sacramento, Calif. Senate President Pro Tem Kevin de Leon, D-Los Angeles, announced Monday, a proposal to spend more than $2 billon on permanent housing to deal with the state's homeless population. (AP Photo/Rich Pedroncelli)