City & Government, Creswell

Boise can’t ban homeless from sleeping in public, & neither can Creswell

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A federal appeals court in September 2018 ruled that prosecuting homeless people for sleeping on the streets when there is no shelter available is a form of cruel and unusual punishment. Now, Creswell’s camping ordinance may be violating the United States Constitution.
Creswell City Attorney Ross M. Williamson visited Creswell City Council to break down the Boise decision and how it affects Creswell at the Jan. 22 city council meeting.

The Martin V. Boise case came out of Idaho last year. The City of Boise’s camping ordinance prohibited the use of camping on any streets, sidewalks, parks or public places at any place or time. Camping is broadly defined in the ordinance to mean “the use of public property as a temporary or permanent place of dwelling, lodging, or residence, or as a living accommodation at any time between sunset and sunrise, or as a sojourn.”
Several homeless individuals that were cited challenged its constitutionality in federal court in 2009, stating that the ordinance was a form of cruel and unusual punishment.
Once the litigation began, the city’s police department issued an administrative rule prohibiting the enforcement of the ordinance against homeless people on public property at night if every shelter in the city was at capacity.
The petitioners argued that even if the shelters had available beds, the restrictions for admission to the shelters prohibited some homeless from utilizing them.
A three-judge panel of the 9th United States Circuit Court of Appeals later ruled that Boise’s anti-camping ordinance is unconstitutional under the Eighth Amendment — which prohibits the government from imposing excessive bail, excessive fines or cruel and unusual punishments.
The Eighth Amendment limits the types of behavior the government may criminalize. One such limit, identified by the U.S. Supreme Court in Powell V. Texas, is a prohibition against punishing someone for “an involuntary act or conditions if it is the unavoidable consequence of one’s status or being.” In this case, the court found that the government cannot criminalize being homeless because being homeless in an involuntary act, condition or status.
“The government cannot criminalize conduct that is unavoidable, namely, sitting, lying, sleeping on the streets if you have nowhere else to sit, lie or sleep,” Williamson said.

Even though this case occurred in Idaho, because it is in the 9th Curitut it is also law for Oregon, which puts Creswell in a tight spot. Creswell, too, has a camping ordinance that is similar to that of Boise’s.
“The way our camping ordinance is written right now, it sounds to be precarious and puts Creswell potentially on the hook for issues,” Mayor Richard Zettervall said. The ordinance disallows anyone from camping on sidewalks, under bridges, in streets, parks or on any other publicly-owned property.
Violation of this ordinance is a civil offense and a $500 fine in Creswell. “One of the guys in the Boise case was fined $25, but it was a criminal fine so that’s a distinguision,” Williamson said.
The lack of options the City of Creswell has for the homeless does implicate to some degree the City’s ability to enforce camping regulations for people who have no other options, Williamson said. As such, Creswell deputies have not been enforcing the ordinance as of late.
“There are ways to send someone to jail for this (camping) violation; it snowballs,” Williamson said, “It so quickly and easily transfers to failure to pay or in contempt of court,” and could result in jail time.
“We have a current regulation that is arguably very close to the line of being unconstitutional, especially in how it’s implemented,” Williamson said. “Because it (camping) is a non-criminal violation, it is not straight-up in violation of Boise, but how it is implemented could be.”
The Ninth Circuit emphatically noted that its ruling is intended to be narrow in its scope. The court opined that the validity of an ordinance as it relates to the Eighth Amendment “will depend, as here, on whether it punishes a person for lacking the means to live out the ‘universal and unavoidable consequences of being human’ in the way the ordinance prescribes.”
In the opinion, the court noted the following:
— Cities are not required to provide adequate shelters for homeless persons;
— Cities have not been ordered to allow persons who wish to sit, lie or sleep on city streets at any time or place of their choosing to be allowed to do so;
— The court’s decision does not apply to people who have access to adequate shelter but choose not to use it;
— The court believes it may be possible for an ordinance to prohibit sitting, lying or sleeping outside during particular times of the day or at particular locations; and
— The court notes that it may be possible for an ordinance to prohibit the obstruction of public rights-of-way and/or the erection of certain structures.
“This is not a free-for-all for setting up tents wherever you want, or laying across the sidewalk; obviously the City has to have some ability to regulate those areas,” Williamson said.
The Boise case has nothing to do with private property and only considers public property, Williamson said. The City “can still apply a nuisance law, a trespass law or a land use code to private property. If someone erects a tent on your property, you can still call the police and have that person trespassed.”
The City’s insurance company, City/County Insurance Services (CIS) provided guidance on how to work with the Boise case and current regulations, applying the lessons of Boise:
— If there are other housing options available in the city, camping can be criminally cited;
— These are case-by-case analysis of capacity and ability; not everyone can meet rules of shelters. If they cannot, it is not that person’s shelter and it is not considered available to them;
— Civil penalties are are not prohibited, especially when the fine does not convert into a criminal contempt charge;
— The city was advised to update the definition of camping so it is not so broad, to limit to something like, ”habitating somewhere like setting up a structure, or a tent or a stove;”
— There has be a way for cities to work with the homeless in a non-criminal matter and find a solution, and CIS suggested converting those dollars to community service;
— Cities could allow campers to camp in one centralized place, then campers do have somewhere to go;
— Cities cannot not jail campers for failing to pay; and
— Cities may be able to create ordinances to prohibit sitting, lying or sleeping outside during particular times of day, or in particular locations.
State law also has a requirement for cities to have a policy on how to clean up homeless camps.
“So if public works or law enforcement comes across one of those camps on public property, there needs to be a policy on how to take care of it,” Williamson said. “What may look like trash to some is not trash to someone else; it’s their only belongings, their home, that’s their property interest. You can’t take someone’s stuff and throw in trash. The owners must be given notice and time to clean it up.”
City council will be tasked with a policy decision on whether to amend the current code provision, take it off the books, adjust the definition of camping or explore other options.
“I think we can noodle around and then think about the next steps. There are options and avenues to consider,” Williamson said. Council anticipates thorough policy discussions at upcoming work sessions where the public can attend.
The homelessness conversation will continue at upcoming city council meetings. The next city council meeting is Monday, Feb. 11 at 7 p.m. in City Hall.



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