Mark McDermott

High Court will not review homeless law

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by Mark McDermott 

The Supreme Court this week announced it would not review a case regarding whether cities can make it a crime for homeless people to sleep outdoors. The case, known as Martin v. Boise, had implications for many cities, including Manhattan Beach, which enacted ordinances in 2018 that made it illegal for anyone to camp within city limits. 

The case concerned similar anti-camping ordinances enacted in Boise, Idaho. Six people who had experienced homelessness in Boise filed the case, arguing that being arrested for sleeping outside violated their rights under the Eighth Amendment’s prohibition of cruel and unusual punishment. The United States Court of Appeals for the Ninth Circuit sided with them and struck down the ordinances. 

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“The Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being,” Judge Marsha Berzon wrote. “…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.”

City Attorney Quinn Barrow said the Supreme Court’s decision not to review the Boise case “has no impact on the enforcement of Manhattan Beach’s camping law” because the city is in full compliance with the Ninth Circuit’s decision. 

“The Ninth Circuit’s decision in Boise holds that it is unlawful to criminally prosecute individuals who are sleeping outdoors on public property when no other shelter is available,” Barrow said. “The City’s ordinance is constitutional and in full compliance with that decision. Manhattan Beach’s ordinance does not criminalize sleeping, sitting, or lying in public spaces, when no alternative sleeping space is available.” 

Barrow pointed to policies the city has enacted under its Homelessness Plan, which include providing mental health clinician outreach and attempts to connect homeless individuals in Manhattan Beach with regional shelters. His suggestion was that the city is doing its best to make sure places to sleep are made available to the homeless. 

The ordinance itself suggests that camping in public areas constitutes a public health threat.

“The use of these public areas for camping purposes or storage of personal property interferes with the rights of others to use and enjoy these public areas as they are intended,” the ordinance reads. “…Such activities can constitute a public health and safety hazard which adversely impacts public offices, facilities and services, neighborhoods and commercial areas.” 

Councilperson Steve Napolitano, at the time the ordinance was enacted, said its intent was not to criminalize the homeless. 

“We are not looking to arrest our way out of homelessness,” Napolitano said. “We are trying to get services to those in need on the streets of Manhattan Beach, and if somebody is camping and refuses those services, that is when enforcement kicks in.” 

No arrests have thus far been made in Manhattan Beach under the ordinance. But Clare Pastore, a professor in the practice of law at the University of Southern California who teaches Poverty Law, Suing the Government, and Civil Procedure, questioned whether Manhattan Beach’s ordinance would pass legal muster since there are no homeless shelters in the city. 

“It’s a very interesting legal question,” Pastore said. “Does the Boise case allow prosecution of someone who declines transportation to another city? My inclination about that [question] is no, it does not, because that is effectively the city banishing people on the pain of criminal prosecution. I would anticipate seeing litigation on this.”

Eric Tars, a senior attorney for the National Law Center On Homelessness and Poverty, which assisted the plaintiffs in the Boise case, in an interview last year suggested his organization would be closely monitoring cities like Manhattan Beach.

“We all sleep, we all sit down and rest, we all shelter ourselves when the weather is bad,” Tars said. “We need to do these things to survive as human beings. Where a community does not provide an adequate, private place for doing these things, it shouldn’t be a crime for citizens who need to do that in public places.”

The most recent count of the homeless population in Manhattan Beach, conducted by volunteers for the LA Homeless Services Authority last January, found 21 people. The city has explored retaining beds in regional shelters but is unlikely to be able to provide its own shelters. 

Judge Barzon, in her majority opinion, cited an earlier Ninth Court ruling that found an anti-camping ordinance in Los Angeles was unconstitutional under the Eighth Amendment “so long as there is a greater number of homeless individuals in Los Angeles than the number of available beds [in shelters]” for the homeless. The recent homeless count found 59,000 homeless people countywide. 

LA County Supervisor Mark Ridley-Thomas suggested that anti-camping ordinances are a tool that actually help cities deal more compassionately with their homeless population by making it more possible to get people off the streets. 

“We should not resign ourselves to a reality where places not fit for human habitation become the default living situation for people experiencing homelessness,” Ridley-Thomas said. “I refuse to accept this as our new normal.”

He called homelessness in LA County a “humanitarian crisis” and said the current law is a detriment to solving it. 

“More than 1,000 individuals will die on Los Angeles County streets this year. Supporting the City of Boise’s position to appeal to the Supreme Court was never an attempt to criminalize the homeless; rather, it was a pursuit of a legal framework that is clear — in comparison to a status quo that is ambiguous and confusing,” Ridley-Thomas said. “Letting the current law stand handicaps cities and counties from acting nimbly to aid those perishing on the streets, exacerbating unsafe and unhealthy conditions that negatively affect our most vulnerable residents.”

But Berzon, in her ruling, suggested any law targeting the downtrodden encourages abuse. She quoted novelist Anatole France’s sardonic summation of laws targeting those suffering poverty: “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

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