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Ninth Circuit Concludes Ordinances Prohibiting Camping in Public Places Without Any Alternative for Shelter Unconstitutional
November 09, 2018

By Armand Resto-Spotts

Earlier this fall, the Ninth Circuit Court of Appeals heard Martin v. City of Boise, a challenge from homeless individuals in Boise, Idaho against the City’s ordinance that made it a misdemeanor to use “any of the streets, sidewalks, parks, or public places as a camping place at any time.”  The Ordinance defined “camping” as the “use of public property as a temporary or permanent place of dwelling…”  The appellants challenged the constitutionality of the Ordinance under the Eighth Amendment, which prohibits cruel and unusual punishment. 
 
After reviewing the City’s ordinance and application, the Ninth Circuit struck down the law, concluding that the enforcement of the statute against homeless individuals with no reasonable or alternative access to shelter violated the Eighth Amendment’s prohibition against cruel and unusual punishment.  Without an alternative option to sleeping indoors, “the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property.”
 
The Court, however, was careful to limit the scope of its decision.  It specified that City’s, or other governing bodies, may take steps to limit or even prohibit and criminalize sleeping in public places.  For example, a governing body can limit sleeping at certain times of day or in certain locations, like public right-of-ways, even if shelter is unavailable.  Or, a governing body could lawfully enforce the same type of prohibition in Boise, but it would need to demonstrate that adequate shelter is available and individuals are choosing not to use it.  The fundamental key is that the governing body does not punish an individual for “lacking the means to live out the ‘universal and unavoidable consequences of being human.’”
 
Martin is a significant decision, with some critical guidance for cities and other governmental entities seeking to manage and also protect its homeless population. 
 
For questions regarding municipal matters and land use controls, please contact Tim Ramis, Jamie Howsley, or Armand Resto-Spotts.   
 
 
 



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