The United States Supreme Court Overturns the Boise Decision: What This Means for California Cities
by Jillian Martins on July 3, 2024
posted in Code Enforcement, Recent Court Decisions,
Last week, the United States Supreme Court decided a case that overturned well-known precedent affecting the right of California cities to cite individuals for sleeping on public property. This decision has significant implications for how cities may now address encampments and related code enforcement issues.
The Boise Precedent
While there were a number of Ninth Circuit opinions which dealt with homeless enforcement issues prior to the now well-known decision in Martin v. Boise, the Boise opinion is widely considered to be a turning point in the ability of state and local governments to enact and enforce regulations aimed at the unhoused population.
In 2014, the city of Boise, was amongst the larger cities in the western states with a rapidly growing homeless population, reporting 753 homeless individuals in Ada County in 2014 which rose to 867 by 2016. Plaintiffs including Robert Anderson and Robert Martin sued the City of Boise claiming that their citations for violating Boise camping ordinances violated the Eighth Amendment. The district court initially ruled in favor of the city, but in 2019, the Ninth Circuit reversed, questioning the adequacy of shelter availability and potentially selective enforcement policies; finally concluding that a city criminally prosecuting people for sleeping outside on public property when those people have no home or other shelter to go to violates the 8th’s Amendment’s prohibition on cruel and unusual punishment. The supreme court decided not to grant certiorari on Boise; but when the Ninth Circuit extended the Boise ruling with City of Grants Pass, Oregon v. Johnson, (“Grants Pass”) the supreme court decided to hear the case and issued its opinion on June 28, 2024.
The Grants Pass Case
The Supreme Court’s decision stems from a so-called “Martin injunction” against Grants Pass, Oregon, a city of around 38,000 residents, including about 600 homeless individuals. Grants Pass had ordinances restricting public camping: one prohibits sleeping on public sidewalks, streets, or alleyways; the second prohibits camping on public property, defining camping as setting up or remaining at a campsite with bedding or fire; and the third prohibits camping and overnight parking in city parks. Penalties include fines, escalating bans from public parks for repeat offenders, and potential criminal trespass charges.
Two homeless individuals filed a lawsuit, challenging the city’s ordinances claiming that they violated the 8th’s Amendment. The district court certified a class action and enjoined the city from enforcing its public-camping laws against people experiencing homelessness, declaring all unsheltered individuals in Grants Pass as “involuntarily homeless” due to insufficient shelter beds and the unavailability of existing beds due to restrictive rules. The Ninth Circuit upheld the district court’s decision and agreed that the homeless population exceeded available shelter beds and thus couldn’t be punished in any way for camping on public property with “basic protection” i.e. sleeping bags, tents, etc. The City of Grants Pass sought a rehearing en banc, which was denied so the city petitioned for certiorari, prompting the Supreme Court to review the case.
Implications for Cities
Many of us who work in municipal government have been eagerly awaiting the ruling in Grants Pass. Since Boise, the Ninth Circuit has upheld tighter and tighter restrictions on the manner in which government entities may address the complex and widespread issue of their respective unhoused populations and the regulations enacted which impact that population. When the Ninth Circuit found that even civil penalties for camping in public parks amounted to Eighth Amendment violations, cities within the purview of the Ninth Circuit have hoped for clearer guidance to address a population that has been growing exponentially in the past ten plus years.
And while many legal publications have spoken about these issues broadly as “anti-camping ordinances,” due to the initial ruling in Boise, the affected regulations do not deal solely with “camping.” These ordinances are often related to instances where the particular challenges of the unhoused have impacted public property. The Ninth Circuit has described the challenged regulations as “criminalizing homelessness,” but regulations which the supreme court discussed included, among others: impacts of freeway and airport locations on the unhoused population, sleeping and/or eating in public parks or vehicles parked in public rights of way, utilizing facilities at public parks or recreation areas; the court struck down opinions related to these issues. The decision by the Supreme Court today made it clear that the imposition of some level of criminal penalty related to these offenses did not constitute a violation of the 8th Amendment. Of note however, the Court did touch upon the cases related to storage of private property in public rights of ways or facilities and loitering but did not overturn the opinions in those cases. As such, regulatory entities affected by this decision should be particularly careful regulating this type of behavior.
The court went on to disapprove of the Ninth Circuit’s conflation of ordinances which, in its view, “criminalize homelessness” with the involuntary status crimes such as alcoholism or other types of addiction it spoke of in Robinson v. California. (Robinson v. California, 370 U. S. 660 (1962)). Referencing back to Robinson, the Court found that the ordinances at issue were not “status” crimes but made certain actions crimes. It did not rule out potential defenses to such offenses, like necessity, but the Court did specifically identify the regulations challenged in Grants Pass as not involuntary but action-based offenses.
The Court spent a great deal of time speaking about the number of amicus briefs it received and even spoke directly about some of the specific issues brought forth in those briefs. One of those issues was balance of powers. The Court found the federalism implications of removing these enforcement mechanisms from the authority of local entities unacceptable. It did not support the Ninth Circuit putting its judgement ahead of Grants Pass and similarly situated entities when regulating their jurisdictions, where those regulations did not constitute a violation of the constitution were improper, noting “federal courts [are] removed from realities on the ground, [and the] rules have produced confusion.” The Court went on to state that the Ninth Circuit’s decisions in this arena have interfered with “‘essential considerations of federalism,’ taking from the people and their elected leaders difficult questions traditionally ‘thought to be the[ir] province.’” While the court did not speak specifically to issues of charter vs. general law cities, or use this specific nomenclature, the Grants Pass opinion is an important finding in support of the concept of home rule. The Supreme Court went on to admonish the Ninth Circuit, “Instead of encouraging ‘productive dialogue’ and ‘experimentation’ through our democratic institutions, courts have frozen in place their own ‘formulas’ by ‘fiat. Issued by federal courts removed from realities on the ground, those rules have produced confusion. And they have interfered with ‘essential considerations of federalism,’ taking from the people and their elected leaders difficult questions traditionally ‘thought to be the[ir] province.’” (emphasis added.)
The final major point from this opinion was the finding that Boise’s shelter availability test was simply too difficult to administer. The opinion specifically outlined the unworkability of the reasoning in the Martin decision by showing an understanding of the difficulty of assessing what constitutes “involuntary” homelessness, stating “How are cities and their law enforcement officers on the ground to know which of these reasons are sufficiently weighty to qualify a person as ‘involuntarily’ homeless? If there are answers to those questions, they cannot be found in the Cruel and Unusual Punishments Clause. Nor do federal judges enjoy any special competence to provide them.” In one of the strongest statements from the Grant’s Pass opinion, the Court called the Ninth Circuit’s shelter availability test “all but impossible to administer in practice.”
Cities Should Proceed with Caution
It is important for those responding to this opinion to proceed with caution. The Supreme Court found, as it relates specifically to regulations restricting public camping, “States and cities are free as well to add additional substantive protections. Since this litigation began, for example, Oregon itself has adopted a law specifically addressing how far its municipalities may go in regulating public camping. For that matter, nothing in today’s decision prevents States, cities, and counties from going a step further and declining to criminalize public camping altogether.” With this nod to the authority of states to determine how these activities may be regulated, local regulatory bodies should proceed with extreme caution when (re) entering the field of regulating the activities of the unhoused population.
It would be both wise and humane to include appropriate due process procedures for drafting any enacting any new ordinances and/or enforcing existing laws specifically associated with this population; in particular those which deal with the initial issue which is camping. Any such regulations should include extensive findings describing the public health and safety matters at stake in the regulations, with supportive and recent data and specific local issues which the regulations seek to address. Enforcement policies should include clear due process protections for those cited; keeping excellent records of past violations by the subject of the enforcement action, and any warnings which have been issued at the location of the incident.
Additionally, it would be prudent to undertake public information campaigns to inform people that new laws have been put into place or policies related to enforcement of these ordinances has changed, resulting in enforcement officials to be able to issue citations where previously this did not take place. Focus should be placed on local governing bodies’ engagement with its population including those that are unhoused; as well as non-punitive efforts made, and measures taken prior to enacting regulations with potential criminal or civil penalties. This analysis should be highly individualized and tailored to each entity, considering the particular challenges in that jurisdiction and working with the existing municipal code to find cohesive language and supportive solutions to this social and regulatory quandary. The Supreme Court placed a great deal of faith in the idea that local governmental actors understand their population better than the courts, and we should take heed to exemplify that when enacting any laws in response to the Grants Pass decision.
(Czarmaine Majan, Esq. was a contributor to this article)
