Five years ago, federal judges ruled it was “cruel and unusual” for cities to fine or arrest homeless people for sleeping outside when they had nowhere else to go.
Fast-forwarding to recent months, elected officials in Seattle and along the West Coast are railing against the decision, asking the conservative-majority U.S. Supreme Court to overturn Martin v. Boise.
But why now?
Due to a pandemic and continually rising rents, the number of people living outside has surged, along with housed residents’ outrage over the public safety impacts of encampments and humanitarian crisis in full view.
And cities are now confronting the true cost of building enough shelter and housing to end homelessness — estimated to be well over $10 billion in Seattle.
But for cheaper, cities can use fines and the threat of arrest to reduce the visibility of unsheltered people. Often, that pushes people out of city boundaries, into greenbelts out of view, or into low-income neighborhoods that have less political voice.
The problem with this strategy is cities keep getting sued, and Martin v. Boise underpins those lawsuits.
Officials say the decision is “hamstringing” their ability to address a crisis, but legal experts say that the actual language of Martin v. Boise places very few limitations on what cities can do.
The turn against Martin v. Boise, especially by Democratic-led cities and states, has dismayed those who had hoped the courts would spur cities toward fixing the housing crisis, rather than addressing symptoms of it.
Now, legal experts and advocates are worried about what would happen if those limited protections go away.
What was Martin v. Boise?
Six homeless people, including Robert Martin, sued the city of Boise in 2009 after receiving fines from police for sleeping on public property. They argued that the three homeless shelters in Boise — the only ones in the county — weren’t suitable for them because they either were full almost every night or required longer-term residents to enroll in Christian programming, according to court filings.
In 2018, the 9th U.S. Circuit Court of Appeals sided with the homeless campers.
“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,” the court wrote.
Criminal penalties for sitting, sleeping, or lying outside — which the court said are “unavoidable consequences of being human” — violated the Eighth Amendment’s protection against “cruel and unusual” punishment.
And the court wrote that programs requiring religion-based treatment do not count as available shelter because they conflict with the First Amendment’s right to religious freedom.
Boise settled the lawsuit in 2021, costing the city about $1.8 million, partly from building more shelter. The city also required police to check whether a shelter space was both available and appropriate for someone before issuing someone a citation.
The number of fines for camping on public property dropped from hundreds to dozens per year. The number of people sleeping outside decreased from 121 to 80 between 2018 and 2022, according to the Point-In-Time Count.
Offers of shelter
Suddenly, states under the jurisdiction of the 9th Circuit — Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington — had to re-evaluate their practices.
In 2019, the city of Boise unsuccessfully asked the U.S. Supreme Court to rehear the case, and many other cities and counties wrote in support.
“The Martin decision hamstrings the County from stopping the rash of violence and crime on our streets,” wrote the County of Los Angeles Board of Supervisors in a 2019 motion directing its lawyers to write an amicus brief for the Supreme Court to rehear Martin v. Boise.
But legal experts say the decision actually does very little to restrict cities’ ability to clear encampments.
For example, Sara Rankin, a professor at Seattle University of Law and a national homelessness law expert, said if police can get people on the street to move without fining or arresting them, Martin v. Boise does not apply.
In addition, Martin v. Boise explicitly allows officials to designate geographic areas and times of day that people are not allowed to camp that cities are allowed to enforce.
For example, Portland passed an ordinance in July that prohibits camping during the day between 8 a.m. and 8 p.m. or in parks and near schools, which legal experts say is allowed.
Many cities followed Boise’s lead and began offering people shelter, enforcing camping bans only if refused.
Defining what is available
But homelessness law experts said that Martin v. Boise left open a number of questions, the biggest: What constitutes an available shelter bed?
“Elected officials have to come up with what they’re willing to defend is adequate,” said Gary Blasi, homelessness law expert and professor of law at University of California, Los Angeles.
In the absence of legal clarity, outreach workers and agencies that work with people living outside say cities are stretching the definition of an available shelter bed.
“It may happen to be an open bed somewhere,” said Bill Kirlin-Hackett, who has helped run Seattle’s Vehicle Residency Outreach Program. “Rarely is it something that’s suitable.”
“It has generated sort of a cottage industry of meaningless offers,” said Lisa Daugaard, co-executive director of Purpose Dignity Action, a homelessness nonprofit.
For example, they say, people with pets or couples might be offered beds that don’t allow them to stay together. People with warrants are told to go to shelters that won’t accept them.
Seattle suburbs Bellevue and Burien have tried to define what an “available shelter bed” is by writing into their codes that if a person is unable to access a shelter due to what they consider “voluntary actions” like intoxication or drug use, they are not protected from enforcement.
Seattle data shows 44% of people accepted offers of shelter from the city’s encampment removal team in the first half of 2023. Fewer than 20% actually entered the offered shelter, although city officials say the data is imprecise and the number is likely higher.
Deputy Mayor Tiffany Washington said that number would likely be much higher if the city offered more higher-quality shelter options like hotel rooms. The state brought in 89% of people cleared from King County’s high-traffic corridors that way.
But Washington said funding more of those options is “not a good way to steward taxpayers’ dollars.”
In 2023, Mayor Bruce Harrell proposed $38 million in his budget for the city’s encampment removal team, about a third of what he dedicated for shelter and homelessness services.
‘Exploring the bare minimum’
Martin v. Boise did not stop crackdowns on living outside.
The number of encampments in downtown areas along the West Coast proliferated in 2020 and 2021, as did the size of encampments, fueled partly by the Centers for Disease Control and Prevention’s advice to stop removing encampments for fear of spreading COVID-19.
The number of people sleeping on the streets of Sacramento County more than tripled between 2018 and 2022. In the counties surrounding Phoenix, Portland, and Denver, numbers increased 92%, 83% and 59%, respectively. In Seattle and Los Angeles, they’ve gone up 22%.
Rising public-safety concerns from living next to encampments has resulted in increasing demands by housed neighbors to remove them, even when they believe the effort is unproductive.
“Moving these individuals from place to place solves nothing,” Seattle resident Joyce Mork-O’Brien wrote to the city asking for an encampment near her home to be removed. “Nonetheless, we want our neighborhood and the safety of our homes and neighbors back. This is not our problem to solve.”
Seattle increased the number of encampment removals from 191 in 2017, before the ruling, to about 800 in 2022.
San Francisco cited or arrested homeless individuals almost 3,000 times for “lodging without permission” or for refusing to obey a law enforcement order to “move along” between July 2018 to October 2021, according to court filings.
Sacramento increased its penalty for camping on public property from an infraction to a misdemeanor in 2022.
Some cities went too far, courts ruled.
Seattle designated encampments on sidewalks or in parks as “obstructions,” and removed them without offering shelter. A King County Superior Court judge ruled Seattle’s definition too broad and thus unconstitutional. The city has appealed.
Chico, Calif., tried to set up an outdoor tent structure on an airport tarmac while banning camping everywhere else.
“Calling a plot of land a shelter does not make it so,” a U.S. District Court judge wrote in a ruling that cited Martin v. Boise.
Cities have not abandoned the idea of designating sanctioned encampments while criminally banning camping everywhere else.
San Diego has experimented with large outdoor tent sites. Portland is working on setting up a few sanctioned encampments, with a ban to follow.
“A lot of communities are still trying to explore what is the bare minimum,” said Eric Tars, legal director at the National Homelessness Law Center.
As they explore where that line is, a long list of cities have joined Chico and Seattle in getting sued with claims they are violating Martin v. Boise: Lacey, Portland, Aberdeen, Marysville, and Santa Cruz, Calif.
San Francisco was one of the most recent defendants, ordered by a U.S. District Court judge to stop enforcing its anti-camping bans for nine months.
San Francisco Mayor London Breed and California Gov. Gavin Newsom began a campaign blaming Martin v. Boise and the courts for hindering their ability to address the homelessness crisis.
“We are prepared, through our city attorney, to do whatever it takes for us to do our job,” Breed said in a rally outside the 9th Circuit Court in August.
A call to overturn
The U.S. Supreme Court rejected the city of Boise’s request in 2019 to rehear Martin v. Boise.
Cities are now targeting a separate but similar case called Johnson v. Grants Pass.
In that case, the city of Grants Pass attempted to align with Martin v. Boise by modifying its camping ban from prohibiting sleeping outside to prohibiting the use of “bedding, sleeping bag, or other material used for bedding purposes.”
The 9th Circuit again ruled against Grants Pass in a decision that said cities could not punish people for taking the “most rudimentary precautions” to protect themselves from the elements.
California Gov. Newsom and Seattle City Attorney Ann Davison, along with dozens of other local officials in both progressive and conservative places, have written amicus briefs to the Supreme Court asking for it to overturn both rulings.
“The 9th Circuit’s decision in this case strips local authority from a complex problem,” Davison wrote in a news release. “Local officials know what their community needs and what unique obstacles face those experiencing homelessness in their region.”
Other cities are saying they need more flexible enforcement options because they can’t afford to actually end homelessness. In its amicus brief, San Francisco wrote that providing shelter to everyone living outside would cost a third of its budget.
Typically, the Supreme Court does not review cases without a “circuit split” — different appeals courts disagreeing on the same issue — but Tars at the National Homelessness Law Center said the current Supreme Court has shown it is willing to rehear cases with firm legal precedent.
Blasi at UCLA agrees. If overturned, he suspects cities could become “a little more cruel.”
“There wouldn’t have to be any shelter,” Blasi said. “You wouldn’t have to offer anyone anything. You could just clear the encampment. You could actually take people to jail.”
Deputy Mayor Washington said Seattle has offered shelter beds during encampment removals before Martin v. Boise and would do so even if the decision was rolled back.
“We don’t do our jobs and say, ‘Are we in alignment with Martin v. Boise?’” Washington said. “We do our jobs to say, ‘Are we doing the right thing?’”