Courts: Homeless can’t be arrested for being homeless

The Supreme Court on Monday let stand a lower court opinion that struck down a Boise, Idaho, law aimed at the homeless that regulates camping and sleeping in public spaces.

In an unsigned order with no noted dissents, the court declined to take up Boise’s appeal to reinstate its law allowing officers to ticket individuals sleeping and camping on sidewalks and parks.

The city argued the ordinance was necessary to “ensure that these areas remain safe, accessible and sanitary.”

But the 9th US Circuit Court of Appeals had blocked the law as it applies to homeless individuals with no access to an alternative shelter as a violation of the Constitution’s bar on cruel and unusual punishment.

“We conclude that a municipality cannot criminalize such behavior consistently with the Eighth Amendment when no sleeping space is practically available in any shelter,” the court ruled at the time.

The case could impact towns and cities across the country that have similar laws. In asking the Supreme Court to take up the case, lawyers for Boise argued that the lower court opinion has created a “defacto constitutional right to live on sidewalks and in parks” that will “cripple” the 1,600 municipalities within the jurisdiction of the 9th Circuit, which covers most of the western US.

“Public encampments, now protected by the Constitution under the Ninth Circuit’s decision, have spawned crime and violence, incubated disease, and created environmental hazards that threaten the lives and well-being both of those living on the streets and the public at large,” the lawyers wrote.

California, which will have to abide by the lower court ruling, has expressed particular alarm because nearly half of all homeless people in the country live in the state, according to some reports.

“No one doubts the severity of the nation’s homelessness crisis or the need for more housing and support,” lawyers for 33 California counties and cities wrote in a brief supporting Boise, but they note they have developed “creative and effective solutions and devoted extraordinary resources to provide temporary shelter and social services.” They said that their work would be derailed by the lower court opinion because cities would be besieged by litigation and the homeless would remain unsheltered.

But lawyers for the six current and former homeless individuals challenging the law say that Boise cannot criminally punish people for sleeping outside. Each of the plaintiffs between 2007 and 2009 was convicted at least once for violating the so-called Camping Ordinance. With one exception, they were sentenced to time served.

Monday’s ruling will likely not be the last time the Supreme Court is asked to consider the overall issue, said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.

“Given the significance of the 9th Circuit’s ruling and the extent to which the justices tend to show some deference to local and state governments when their laws are invalidated, today’s refusal to take up the case is a bit surprising,” Vladeck said. “But that doesn’t mean that this is the last we’ll hear of the issue. It’s not hard to imagine a different lower court reaching a different conclusion about a similar ordinance in a future case — which could bring this issue back to justices in a posture in which they’d face more pressure to resolve the issue at the nationwide level.”