Is Your Camping Ordinance Constitutional?

A recent Ninth Circuit Federal Court of Appeals case — Martin v. City of Boise — ruled that it is unconstitutional for the City of Boise to enforce ordinances prohibiting camping in public places against homeless individuals at times when no shelter space is available. Washington is part of the Ninth Circuit, so this decision applies to Washington municipalities.

Many Washington municipalities have ordinances that prohibit camping and sleeping on public property (e.g., camping ordinances). This blog will examine the case and provide thoughts on the status of such ordinances in light of this decision.

Martin Requires that there be Alternatives to Public Camping

Martin was a challenge by homeless individuals to Boise’s enforcement of camping ordinances against homeless individuals when no shelter space is available. They argued that citing homeless individuals under such circumstances is tantamount to criminalizing homelessness. The court agreed, stating:

an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them.

There was extensive discussion of Boise’s attempt to show that there is sufficient shelter space for Boise’s homeless population. Of the three shelters in Boise, two are operated by churches, and there was evidence that the church shelters required participation in religious activities. The court ruled that shelter space is not “available” if homeless individuals are required to participate in religious instruction in exchange for shelter. The court also noted that all the shelters had limits on how long a person can stay, and that the annual, point-in-time homeless counts suggested there were more unsheltered homeless than shelter spaces in Boise.

From the court’s standpoint, it is not a simple question of whether an ordinance prohibiting camping on public property is constitutional. Rather, enforcement of such an ordinance is cruel and unusual punishment under the Eighth Amendment if a homeless person has no alternative to living and sleeping outside:

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.

In other words, camping ordinances are not inherently unconstitutional, but a municipality can be in violation of the Eighth Amendment if the person cited had no meaningful alternative to sleeping outside.

Additional Information on the Scope of Martin

In footnote 8, the Martin court set forth some limits on the scope of its decision:

1. It does not cover individuals who do have access to adequate temporary shelter but choose not to use it.
2. Even when shelter is unavailable, an ordinance may prohibit sitting, lying, or sleeping outside at certain times or in certain locations.
3. An ordinance may prohibit obstruction of rights-of-way or the erection of certain types of structures.
4. Whether such ordinances are consistent with the Eighth Amendment will depend on “whether it punishes a person for lacking the means to live out the ‘universal and unavoidable consequences of being human…’”

What Should Cities Do in Response to Martin?

Martin raises both legal and policy issues for a municipality to consider:

• If a municipality is enforcing camping ordinances, it should obtain review by its legal counsel in light of the Martin case and suspend enforcement until that process is complete.   
• Many camping ordinances predate the rise of the homelessness population in this region. As a policy matter, a municipality may want to review its camping ordinances to determine whether they are in keeping with current legislative priorities.   
• A municipality should decide, as a matter of policy, if it wants to create a system that tracks the number of available shelter beds and the number of homeless individuals in its jurisdiction. Being able to show that shelter beds are available will require ongoing efforts and may be logistically difficult since the number of homeless individuals and the number of shelter beds in a jurisdiction will fluctuate over time. Municipalities will need to coordinate with other entities to the extent shelters in the area are operated by third-party agencies or nonprofits. If a municipality opts not to track this information, then it will be vulnerable to a legal challenge if it enforces ordinances that prohibit camping or sleeping in public.
• A municipality can consider limiting the applicability of camping ordinances to certain times of day or certain types of properties. Under Martin, the questions will be whether there is shelter space available or whether there are places in the jurisdiction where a homeless individual can sleep or camp without violating camping ordinances.

Questions? Comments?

If you have comments about this blog post, please comment below or email me at orey@mrsc.org. If you have questions about this or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772.