Tag Archives: martin v boise

Cities are asking the Supreme Court for more power to clear homeless encampments

Originally published at Vox on October 10, 2023.
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In 2018, a federal court issued a consequential decision about homelessness in America: People without housing can’t be punished for sleeping or camping outside on public property if there are no adequate shelter alternatives available.

The Ninth Circuit’s decision, Martin v. Boise, said that punishing homeless people with no other place to go would violate the Eighth Amendment’s prohibition on cruel and unusual punishment. Ever since, cities and states have struggled to comply with it, crafting convoluted policies like a new camping ban in Portland, Oregon that prohibits homeless camping during the hours of 8 am to 8 pm.

As municipal backlash to Martin grew, so has the nation’s homelessness crisis, especially in the nine Western states under the Ninth Circuit’s jurisdiction, where some 42 percent of the country’s homeless population now lives.

The Supreme Court declined to hear Martin in 2019. But they now could reconsider the decision. A petition was filed in late August concerning a similar case in Grants Pass, Oregon, a city of 38,000 people. In 2022, the Ninth Circuit decided it would be unconstitutional for Grants Pass to fine homeless people sleeping on public property if there was nowhere else for them to go. The city is challenging that decision.

The Supreme Court hasn’t indicated whether it will hear this significant case, a step it will likely take at the end of this year or early next. Supporters of the Martin decision say there’s no reason the high court should take up the request, as there’s no clear disagreement among circuit courts to resolve. In the half-decade since Martin came down, there have been dozens of cases affirming it, including in the Fourth Circuit in Virginia, and federal lower courts in Ohio, Missouri, Florida, Texas, New York, and Hawaii.

But a bipartisan coalition of cities and states is pressuring the Supreme Court to intervene. In the last month, dozens of local governments have filed briefs pleading with the court to reconsider Martin, including liberal cities like Los Angeles, Honolulu, and Seattle.

Some in the court system have also signaled they’d like to see the case overruled. This summer, when the full Ninth Circuit declined to review the Grants Pass v. Johnson decision issued by a three-judge panel in 2022, 16 judges dissented, arguing both cases were incorrectly decided. “Martin handcuffed local jurisdictions as they tried to respond to the homelessness crisis; Grants Pass now places them in a straitjacket,” one dissent read. A state judge in Arizona also recently urged the Supreme Court to take up the matter, arguing Martin and Grants Pass both “tie the hands of cities that seek in good faith to address the growing homeless encampment epidemic.”

California’s Democratic Gov. Gavin Newsom also filed a brief in August urging the Supreme Court to reconsider the cases. While Newsom insisted he is not objecting to the “narrow” Martin decision that people experiencing homelessness should not be criminalized for sleeping outside when they have nowhere else to go, the governor argued cities need more clarity on implementation, and that lower courts have interpreted Martin too broadly.

Despite Newsom saying that he’s not seeking to overturn Martin wholesale, homeless advocates say this is naive at best, since that’s what the lawyers representing Grant Pass are asking to do.

“Newsom and the other briefs that aren’t asking for a full overturn of Martin — just clarity around some of these restrictions — are fooling themselves, perhaps willfully so, and are being willfully ignorant of the consequences of their involvement,” Eric Tars, the legal director for the National Homelessness Law Center, told Vox. “The petitioners in this case are asking for a full overturn, that’s the question they have presented to the Court and that’s what they’ll be arguing for.”

Theane Evangelis, a Gibson Dunn attorney and lead counsel for the city of Grants Pass, told Vox they do believe Martin and Grants Pass are “legally wrong” and “are hopeful the Supreme Court will grant review and undo these harmful decisions.”

The Grants Pass v. Johnson case is about whether it violates the Eighth Amendment to fine or arrest unhoused people

Five years ago, about six weeks after the Martin decision was decided, three homeless individuals filed a federal class-action lawsuit against Grants Pass, Oregon, arguing that the city’s laws and customs — like its anti-camping ordinance — punished them for their status of being involuntarily homeless.

The lead plaintiff was Debra Blake, who had been experiencing homelessness for about a decade and was continually racking up hundreds of dollars in fines and fees for sleeping outside and allegedly trespassing. By 2020, Blake owed over $5,000 in penalties for living outside. In their lawsuit, attorneys representing the plaintiffs noted the dearth of affordable housing and homeless shelters in the city, and blasted Grants Pass’s arguments that unhoused people could simply leave and go elsewhere. Blake died a year later at 62, and so the case was renamed for another homeless plaintiff, Gloria Johnson.

In 2022, a three-judge panel from the Ninth Circuit ruled in favor of the homeless plaintiffs.

Opponents of the decision argued Grants Pass marked a radical expansion of Martin, since the Oregon city had issued civil penalties to unhoused people, not criminal ones. Some also alleged that Grants Pass created even further confusion for local governments, since the Ninth Circuit held that a Christian homeless shelter that had strict rules like mandatory church attendance could not be counted as available shelter in Grants Pass due to potential violations of the First Amendment’s Establishment Clause. Many cities have only religious shelters or rely heavily on them.

Supporters of the Grants Pass ruling say it neither expanded Martin nor created confusion. “I see it as a clarification of Martin,” said Tars, of the National Homelessness Law Center, saying that Grants Pass clarifies “that you have to look at the collective impact of all these different ordinances — including anti-sleeping bans or rules barring being in parks after dark — that can make it illegal to exist basically anywhere in public even if they have no other place to do so.”

Ed Johnson, the director of litigation at the Oregon Law Center and the lead attorney representing the homeless plaintiffs in Grant Pass, told Vox that the decision is being greatly mischaracterized by opponents. “The opinion is exceedingly narrow and puts no limits whatsoever on a city’s ability to prevent permanent or even established encampments,” he said.

So is it a violation of the Eighth Amendment to issue tickets and fines against people experiencing homelessness?

Lawyers representing Grant Pass say no, emphasizing that enforcing local regulations should not be considered cruel and unusual punishments.

“I think the entire idea that it could constitute cruel and unusual punishment to arrest someone for sleeping on the street is incorrect,” added Timothy Sandefur, the vice president for legal affairs at the Goldwater Institute, a conservative legal advocacy group that filed a brief urging the Supreme Court to take the case. Sandefur told Vox that “it’s true” that arresting someone for a status like being homeless is wrong, but he argued it would be at most a violation of due process, not of the Eighth Amendment.

Homeless advocates in support of Martin and Grants Pass say ticketing, fining, and arresting unhoused people if they have nowhere else to go is indeed a violation of the Eighth Amendment. In a brief filed to the Ninth Circuit in support of the unhoused plaintiffs, lawyers with the Fines and Fees Justice Center argued that civil penalties frequently trap unhoused people in cycles of poverty and homelessness, ensnaring them in debt that prevents them from securing housing at all.

And given the insufficient number of shelter beds, the practical outcome of rules barring rest under a blanket on any publicly owned property or rest in a car overnight in a public park parking lot “effectively function[s] as a city-wide prohibition of homelessness” that “punish[es] their very existence.”

Overturning Martin and Grants Pass could have implications for forced treatment

As public frustration with tent encampments has grown, a movement urging a “get tough” approach has emerged, arguing that the costs of allowing tent cities to proliferate are too steep and that waiting for cities to build enough new housing before acting is unacceptable. Some argue that public officials have grown complacent with the homelessness crisis, and rely on Martin as an excuse to maintain the status quo.

In efforts to both crack down on encampments but comply with the Ninth Circuit decisions, some cities and states have pushed more punitive legislation, like bills to make camping a felony, or criminalize sleeping outdoors on public property except within designated areas. The question of whether these laws are constitutional under Martin remains an open question. Leaders recognize they probably can’t ban camping everywhere given the court rulings, but they’ve been looking to see if they can ban it in most places instead. If Martin was overturned by the Supreme Court, however, officials would likely feel much more empowered to resume city-wide anti-camping bans and prosecute those who violate them.

Tars, of the National Homelessness Law Center, said the major difference between now and five years ago is the emergence of a “concrete, well-funded movement” to criminalize homelessness, rather than a patchwork of local regulations decided by individual cities and towns. “Today there are groups actively working together, producing media, going on Fox News, to proactively push criminalization,” he told Vox. “That didn’t exist prior to Martin v. Boise.”

In a Supreme Court brief filed by the California State Sheriffs’ Association and the California Police Chiefs Association, the groups wrote “they, by no means, argue for the criminalization of the homeless” and are committed to “improving the outcomes” for unhoused people. Still, they said the “disastrous” decisions “impermissibly intrude” on their policing duties, and make it “all but impossible” to curb dangers associated with encampments.

If Martin and Grants Pass are overturned, it will not only have implications for clearing tents, but likely also for sending homeless people to substance use or psychiatric treatment programs.

In several of the briefs submitted by local governments, cities reported examples of homeless people “refusing help,” and as Vox has previously reported, the question of what to do with those who turn down offers of shelter has gotten entangled with broader, ongoing debates about involuntary treatment. As pressure to clear encampments mounts, many homeless advocates fear that new laws mandating treatment will be indiscriminately applied to those sleeping outside, and even more so if Martin and Grants Pass no longer provide a check on local governments’ behavior.

Some of the briefs filed to the Supreme Court in support of reconsidering Martin have already raised this issue. “Allowing people to live on the streets or in tents in a park is not a compassionate response to the problem,” wrote Sandefur in the Goldwater Institute’s amicus filing. “A compassionate response would consist of providing people with the care they need — including taking them into custody against their will if they are incapable of managing themselves.”

Asked about the connection between encampments and involuntary care, Sandefur told Vox these cases show that cities “are going to have to find a better solution than what they’ve been doing, which is largely ignoring the problem and hoping it goes away.”

The little-noticed court decision that changed homelessness in America

Originally published in Vox on June 12, 2023.
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Five years ago, a federal court issued a crucial ruling. People experiencing homelessness, the Ninth Circuit Court of Appeals said, can’t be punished for sleeping outside on public property if there are no adequate alternatives available.

The 2018 decision in Martin v. Boise did not create the homelessness crisis, which researchers attribute primarily to the lack of affordable housing. The number of people experiencing unsheltered homelessness — meaning those sleeping on the streets, in parks, in abandoned buildings or train stations, or anywhere not meant for humans to live — was rising before the decision.

But as the number of unsheltered homeless people continued to grow over the past half-decade, the Martin decision has become a pivotal factor in shaping how cities respond to the very visible problem of tent encampments, particularly on the West Coast. While the case never gained huge name recognition, it undergirds the policy and politics of homelessness in 2023. So much of the fight about how to address homelessness today is, at this point, a fight about Martin.

The case dates back to 2009, when Robert Martin and a group of fellow homeless residents in Boise, Idaho, sued, arguing that police citations they received for breaking local camping bans violated their constitutional rights. In 2018, the Ninth Circuit agreed that prosecuting people for sleeping or camping on public property when they have no home or shelter to go to violated the Eighth Amendment’s prohibition on cruel and unusual punishment.

“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 declared.

States, cities, and counties urged the US Supreme Court to take up the case, arguing the Ninth Circuit had created “a de facto” right to live on sidewalks and in parks that would “cripple” local leaders’ ability to safely govern their communities. But in 2019, the court declined, baffling some experts, though others suspect it’s because there were no conflicting circuit decisions at the time. Since then, Martin has shaped cities’ response — or lack thereof — to the growing challenge of homeless tent encampments.

While the decision only formally applies in areas under the Ninth Circuit’s jurisdiction, the ruling has reverberated nationally, as local governments consider how to address unsheltered homelessness in ways that could avoid costly constitutional legal battles. There have already been dozens of court cases citing Martin, including in the Fourth Circuit in Virginia, and federal lower courts in Ohio, Missouri, Florida, Texas, New York, and Hawaii.

For now, though, Martin’s impact can be seen most clearly out West. Just before Christmas 2022, for example, a district judge cited Martin when she ruled that San Francisco can no longer enforce encampment sweeps — meaning clear out homeless individuals and their property from an outdoor area — since the city lacks enough shelter beds for those experiencing homelessness to move into. San Francisco appealed the decision, arguing it’s “unnecessarily broad and has put the City in an impossible situation.”

In Phoenix, Arizona, residents and business owners filed a lawsuit last summer against the city for allowing a downtown homeless encampment to grow with nearly 1,000 people, but a federal judge — echoing Martin — barred Phoenix in December from conducting sweeps if there are more homeless people than shelter beds available. A competing decision issued in March by a state judge ordered Phoenix officials to clean up the “public nuisance” at the encampment by July 10, arguing the city has “erroneously” applied Martin to date.

In Portland, Oregon, meanwhile, officials have scrambled to revise their local camping ordinance to be a “daytime” camping ban from 8 am to 8 pm instead, in recognition that any total camping ban is likely illegal under Martin.

Supporters of a more “get tough” approach to encampments say the social and political costs of allowing tent cities to proliferate are too high, and that waiting for cities to build enough new housing before acting is untenable, both morally and politically. Some think officials are getting complacent in relying on Martin as an excuse to maintain the status quo.

Advocates for those experiencing homelessness say politicians are squandering an important opportunity by fighting for the right to conduct encampment sweeps — which can be both cruel and counterproductive to the larger goal of ending homelessness. Instead of looking for legal loopholes to Martin like daytime camping bans and sanctioned encampment sites, advocates say leaders should be investing more in solutions like affordable housing and shelter options that afford people more privacy.

“Our end goal is not to create a right for people to sleep on the streets. That’s the limited remedy we’ve been given under our Constitution,” said Eric Tars, the legal director for the National Homelessness Law Center. “They’re missing the point of Martin if they’re just trying to continue a criminalization approach in a more constitutional way.”

Cities are scrambling to comply with — and find loopholes in — Martin v. Boise

Unsheltered homelessness has risen sharply over the last seven years, and at a faster rate than homelessness overall. Unsheltered homeless people now account for 40 percent of all homeless people in the country, up from 31 percent in 2015.

Political pressure has mounted to respond to this growing problem of people sleeping in alleys, parks, and train stations. While it’s not clear this would be legal under Martin, a number of cities have turned to the idea of so-called sanctioned encampments, or legalized campsites. These are effectively designated areas where unhoused individuals can live outside, and some come with varying degrees of public services, like bathrooms, power outlets, medical care, and on-site case management.

In Portland, Oregon, lawmakers voted in November to create several large sanctioned campsites for homeless individuals, and ban the more than 700 other encampments spread across the city. Austin, Texas, has operated one sanctioned encampment of so-called “tiny homes” since 2019, on a seven-acre plot of asphalt near the airport. Denver, Colorado, is also moving to make its so-called “managed campsites” from the pandemic a permanent homelessness response tool.

The trade-off for legalized campsites, however, is that sleeping outside anywhere else in a city would then be illegal. This helps alleviate leaders’ political problem of having tents pitched all over a city, but activists worry it’s just a way to steer the sight of homelessness out of public view, and criminalize people who refuse to go. Some cities are considering sanctioned encampments with a six-month residency limit, even if there’s no permanent affordable housing option for those experiencing homelessness to go to after that point.

Some advocates have taken a firm stance against the idea; they see sanctioned encampments as a means to segregate and criminalize unhoused people and effectively kick the can down the road by not finding them permanent housing.

They’re not wrong that sanctioned encampments can require a great deal of money, staff time, and effort. In 2018, the United States Interagency Council on Homelessness warned that “creating these environments may make it look and feel like the community is taking action to end homelessness on the surface — but, by themselves, they have little impact on reducing homelessness.”

For these reasons, some cities — like Houston — have rejected the idea. “We can do better as a society. We shouldn’t tolerate it and say that’s okay,” Marc Eichenbaum, the special assistant to Houston’s mayor on homeless initiatives, told NPR.

But other cities with fewer available housing options say sanctioned encampments represent a decent interim solution, and maybe even better for unhoused residents compared to scattered campsites if cities can more effectively target social services to those corralled together.

Legalized campsites can also have a lower barrier to entry than many existing shelters, so supporters are framing them as a harm-reduction approach to homelessness. Groups like the National Homelessness Law Center, which used to firmly oppose sanctioned encampments, have recently softened their stance to say they should be considered on a case-by-case basis.

“The only time that we would see a role for that approach is if you had an exit plan,” said Tars, who pointed to some models in Seattle and Gainesville, Florida, that he thought were more positive. “Otherwise you are just creating a permanent shanty town.”

Meanwhile, Republican-governed states are exploring more punitive models. In at least half a dozen states, lawmakers have pushed sanctioned encampment bills based on templates from the Cicero Institute, an Austin-based conservative think tank. The bills propose to penalize cities that permit tent encampments, to put time limits on sanctioned encampment sites, and to divert funding from permanent supportive housing into things like mandatory drug treatment.

In 2022, Tennessee became the first state to pass a bill that would make camping on local public land a felony. Missouri’s version will allow the state’s attorney general to sue local governments that don’t enforce encampment bans. Activists say Cicero’s aggressive opposition to housing-first will lead invariably to more homeless people in jail.

Looming ultimately above all these various sanctioned encampment models is the Martin decision, which says a city-wide camping ban would be unconstitutional if the city lacks sufficient shelter options. Leaders recognize they probably can’t ban camping everywhere under Martin, but they want to see if they can ban it in most places instead. Yet whether any bans could exist if a city lacks enough shelter beds remains an open Eighth Amendment question.

Tars, of the National Homelessness Law Center, thinks the answer is no. “Martin is very clear when it’s talking about ‘adequate’ [housing] alternatives it’s talking about indoor shelter beds, and legalized encampments are not shelter beds,” he said, pointing to a 2021 federal court decision that found a sanctioned encampment site in Chico, California, was inadequate “shelter” under Martin. A federal judge described Chico’s encampment as “open space with what amounts to a large umbrella for some shade” that “affords no real cover or protection to anyone.”

Tars acknowledged, though, there’s a “legal gray area” in the Martin decision, as one footnote suggests cities could create some “time/manner/place” restrictions for camping.

Earlier this year, when a Maricopa County Superior Court judge ordered Phoenix officials to clear its notoriously large downtown encampment, he urged the city to consider “the creation of controlled, outdoor camping spaces on vacant City property” if there were not enough shelter beds to move people into.

As in Houston, Phoenix officials have rejected the sanctioned encampment approach to date, saying resources should be invested into housing solutions with air conditioning: Over 80 percent of Maricopa County’s 425 heat-related deaths in 2022 occurred outside. Local officials estimate unsheltered homeless people are at “200 to 300 times higher risk” of heat-related deaths than the rest of the population.

Still, even if Phoenix leaders embraced sanctioned encampments, it’s not clear the idea would hold up under Martin. Resolving some of these questions will realistically require the Supreme Court, but that’s unlikely to happen until there’s competing circuit court decisions to pressure it to take the issue up.

Homelessness policy is at a crossroads

There are court rulings, and then there’s enforcement of those rulings. Homeless advocates say it seems as though too many cities are failing to comply with rulings that bar unconstitutional sweeps.

For example, lawyers say little has changed in San Francisco since a federal judge ruled against sweeps six months ago, and that homeless residents continue to be displaced under the guise of street cleaning.

“What we’ve seen has been a really aggressive media campaign led by the city to suggest we are pro-open-air drug markets and anti-accessibility for sidewalks,” said Zal Shroff, an attorney with Lawyer’s Committee For Civil Rights representing the homeless plaintiffs.

“You’re allowed to clear genuine public safety hazards, but when you do that and throw their laptops and cellphones into dumpsters, that’s not a cleaning — that’s a seizure of someone’s belongings without due process,” he added. In late May, Shroff’s team filed a court motion, calling for increased monitoring.

Jen Kwart, a spokesperson for San Francisco’s city attorney, told Vox they’re “complying with the preliminary injunction while simultaneously expending hundreds of millions of dollars annually to provide shelter and services to unhoused people.”

In Phoenix, while the city is working to clear out its large homeless encampment by July 10, per the Maricopa County Superior Court, the ACLU has been arguing the city’s clearings have violated the rights of unhoused people.

“Even if you’re unsheltered, you have due process rights to your belongings under the Fourth and 14th Amendments,” said Benjamin Rundall, an attorney with ACLU of Arizona. “You can’t violate someone’s constitutional rights in order to vindicate someone’s private property rights.”

It’s not clear at all where the estimated 700 unhoused people living in the downtown Phoenix encampment are supposed to go. There are not enough available shelter beds in the city; the four largest ones were at 97 percent capacity as of April.

A spokesperson for Phoenix’s Mayor Kate Gallego did not return requests for comment, but an April city press release said they were exploring hotel options and expected 800 new shelter beds to come online before the end of 2024.

Some conservative legal advocates see the Maricopa County Superior Court ruling as offering a blueprint for other cities and states to clear out their tent encampments. “For too long, liberal leaders have used the Martin ruling as an excuse to allow rampant crime and homelessness to take over neighborhoods,” argued Austin Vanderheyden, a liaison at the Goldwater Institute, in the Orange County Register. “But no longer.”

“Our lawsuit was never about solving homelessness,” wrote Ilan Wurman, who represented the Phoenix business and property owners. “It was about solving the humanitarian crisis that these encampments create.”

Meanwhile, as pandemic eviction aid dries up, homeless advocates are bracing for more people to lose their housing in the coming months. Washington, DC, recently reported an 11.6 percent increase in homelessness from 2022. While the nation has been increasing its shelter bed capacity over the last few years, fewer people are choosing to stay in them. Many have decided sleeping outdoors is preferable to the rules and conditions of congregate shelters.

Figuring out where cities go next will be shaped in no small part by how leaders and courts land on interpreting Martin.

“It really feels like we’re at a tipping point,” said Tars. “Things could either get much better or much worse.”