New Ninth Circuit Ruling Addresses Anti-Camping Ordinances
Last month, the federal Ninth Circuit Court of Appeals issued a decision that provides clarification and guidance on anti-camping ordinances to municipalities in the Ninth Circuit (which includes Washington). The case, Johnson v. City of Grants Pass, is a follow-up to the Martin v. City of Boise case, which was originally decided in 2018.
The court in Martin ruled that enforcement of anti-camping ordinances against individuals experiencing homelessness violates the Eighth Amendment of the U.S. Constitution if no alternatives to sleeping in public are available. For background, see MRSC’s webpage Regulation of Unauthorized Camping, Loitering, and Solicitation of Aid and the blog articles, Is Your Camping Ordinance Constitutional? and What Are Local Governments Doing in Response to Martin v. City of Boise?
The underlying facts of Johnson are quite similar to Martin. The Oregon city of Grants Pass had a series of ordinances that prohibited sleeping and camping in public. Taken as a whole, those ordinances prohibited sleeping and camping in public places throughout the city. Initial violations of the ordinances resulted in a civil citation and monetary fine. However, two or more violations of the anti-camping ordinances could give rise to a “park exclusion order,” which, if violated, would serve as a basis for a criminal trespass citation.
In 2013, the Grants Pass City Council convened a community roundtable to “identify solutions to the current vagrancy problem.” One of the planned actions from the roundtable was increased enforcement of the anti-camping ordinances. Between 2014 and 2018, the city issued a total of 574 tickets under its anti-camping and anti-sleeping ordinances.
The parties disagreed on how many involuntary homeless individuals lived in the city, but point-in-time counts for 2018 and 2019 indicated there were at least 600. And there was no dispute that Grants Pass had far more homeless individuals than available shelter beds.
After the 2018 initial decision in Martin, homeless individuals in Grants Pass filed a class action complaint against the city seeking a declaration that enforcement of anti-camping ordinances against them was unconstitutional and sought an injunction to prevent the city from continuing to enforce the laws. Thereafter, Grants Pass amended its anti-camping ordinance to exclude “sleeping” from the definition of camping. The city’s position was that by removing involuntary conduct (sleeping) from the definition of camping (which included use of bedding and tents), the ordinance complied with the court’s holding in Martin. The Johnson court disagreed.
The Johnson court noted that the core issues involving enforcement of anti-camping ordinances is governed in large part by Martin. Still, several aspects of the case are noteworthy and worth reviewing in more detail.
Class actions are an option for plaintiffs seeking to challenge laws that disproportionately impact homeless individuals.
Martin involved civil rights act claims asserted by individual plaintiffs — it was not a class action. In Johnson, the City of Grants Pass argued that the trial court erred in certifying a class defined as:
All involuntarily homeless individuals living in Grants Pass, Oregon, including homeless individuals who sometimes sleep outside city limits to avoid harassment and punishment by [the City] as addressed in this lawsuit.
Class certification is a complex topic, often used to compile many small claims into a single case for financial efficiencies, and there are several requirements that must be met to successfully certify a class. Analysis of class certification is beyond the scope of this article but suffice it to say that the Court of Appeals in Johnson upheld its use in the challenge to the enforcement practices of the City of Grants Pass.
The ruling in Martin v. City of Boise is not limited to criminal citations.
The Martin case involved the issuance of criminal citations for violating the City of Boise’s anti-camping ordinances. The City of Grants Pass argued that its enforcement practices did not violate the Eighth Amendment because the issuance of civil citations is not “punishment.” The Johnson court disagreed, since the civil citations could eventually lead to criminal punishment:
The anti-camping ordinances prohibit Plaintiffs from engaging in activity they cannot avoid. The civil citations issued for behavior Plaintiffs cannot avoid are then followed by a civil park exclusion order and, eventually, prosecutions for criminal trespass. Imposing a few extra steps before criminalizing the very acts Martin explicitly says cannot be criminalized does not cure the anti-camping ordinances’ Eighth Amendment infirmity.
The court clarified that “our decision does not address a regime of purely civil infractions, nor does it prohibit the City from attempting other solutions to the homelessness issue.”
Ordinances must allow homeless individuals to take “the most rudimentary precautions” against the elements.
The Johnson court was not impressed with the city’s argument that amending the anti-camping ordinances to allow individuals experiencing homelessness to sleep in parks complied with the Martin case. Although sleeping was technically allowed, the amended ordinance continued to prohibit the use of “bedding, sleeping bag[s], or other material used for bedding purposes.” Noting that “Grants Pass is cold in the winter,” the court ruled that, “the City cannot enforce its anti-camping ordinances to the extent they prohibit ‘the most rudimentary precautions’ a homeless person might take against the elements.”
The court was careful to note that its ruling did not necessarily extend beyond the most rudimentary precautions:
Our holding that the City’s interpretation of the anti-camping ordinances is counter to Martin is not to be interpreted to hold that the anti-camping ordinances were properly enjoined in their entirety. Beyond prohibiting bedding, the ordinances also prohibit the use of stoves or fires, as well as the erection of any structures. The record has not established the fire, stove, and structure prohibitions deprive homeless persons of sleep or “the most rudimentary precautions” against the elements. Moreover, the record does not explain the City’s interest in these prohibitions. Consistent with Martin, these prohibitions may or may not be permissible.
The Johnson court noted that its decision, like Martin, is “narrow.” The Grants Pass ordinances were similar to the Boise ordinances in that they prohibited sleeping and camping in public places on a citywide basis. Neither Johnson or Martin prevent a jurisdiction from prohibiting lying or sleeping outside at particular times or in particular locations, obstructing the right-of-way, or erecting certain structures.
Johnson is likely the first in a series of post-Martin Ninth Circuit cases in which the constitutionality of enforcement of anti-camping ordinances is tested. It will take time to define the scope of municipal regulatory authority in this developing area of law.
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