In what seems to be a theme this week, the homeless bill of the session doubled down in changes that came out of its fiscal committee and now includes a litigation path based on enforcement of public camping ordinances, not just on the ordinances themselves.

The amended version of HB 1380 specifies that the “objective reasonableness” requirement applies not only to the local laws, but also to the enforcement of any such local laws regulating the acts of sitting, lying, sleeping, or keeping warm and dry outdoors on public property. The bill also expanded the “totality of the circumstances” test a court must use to determine what is “objectively reasonable” and includes:

• The need to protect public safety and health, including the safety and health of persons experiencing homelessness;
• A Martin standard that is known to be difficult, if not impossible to implement on the ground: the availability and accessibility of shelter or housing options for persons experiencing homelessness in the jurisdiction;
• The impact on persons experiencing homelessness, including their ability to access essential services, maintain personal safety, and meet basic needs such as keeping warm and dry;
• The proportionality of the law to the issue it seeks to address, including a requirement that such laws avoid excessive or extreme measures that are not justified by the totality of the circumstances; and
• To give special consideration to:
  • The specific characteristics and intended use of the public property in question;
  • The unique needs and circumstances of the local community, including the prevalence and characteristics of homelessness in the area; and
  • the potential long-term effects of the local law or enforcement of such law on both persons experiencing homelessness and the public.

Although AWC continues to work with the proponents of this proposal, all requests to clarify and understand what a city could do to meet these requirements without litigating it in court have been declined.  AWC’s position is that if the state wants to manage how cities can regulate public property, they should define the expectations rather than delegating those decisions to the courts. Reach out to your House lawmakers now to oppose HB 1380.

Bill to follow Oregon on regulating public camping at the state level

February 10, 2025

The previous “homeless bill of rights” proposal has a new name and now mirrors the law passed by Oregon, which promptly resulted in costly litigation against the City of Portland.

HB 1380, sponsored by Rep. Mia Gregerson (D–SeaTac), is dubbed, the ‘Safe Spaces’ bill; but it is unclear who it intends to protect. Living outside is anything but safe. Those who live outside are at risk of violent crime and extreme weather. Homeless individuals die every winter due to exposure. This bill will not bring any unsheltered individuals inside.

The bill also claims to want to protect cities from litigation. It will have the opposite effect, with city resources spent in court instead of on homelessness response programs. AWC has engaged with the sponsor to express our significant concerns with the bill, but the desire seems to be to have the courts define what is a reasonable use of our public spaces. Yet our highest Court has already recognized that cities, not courts, are in the best position to manage this complex societal issue.

Cities agree with the bill’s intent that the state and local governments have a shared responsibility to address the homeless crisis and transition unsheltered residents into housing. That’s why AWC supports the successful Rights-of-Way Safety Initiative and asked the Legislature to expand it.

HB 1380 passed out of its House policy committee. Please reach out to your legislators to express your concern in spending your communities’ limited resources in court rather than on co-response programs, emergency shelter programs, or other supportive programs.

Please reach out to your legislators to express your concern in spending your communities’ limited resources in court rather than on co-response programs, emergency shelter programs, or other supportive programs.

Here are some talking points AWC is using:

• It is settled law that local governments can regulate public spaces. As recognized in Justice Sotomayor’s dissent in the U.S. Supreme Court ruling in City of Grants Pass v. Johnson:
  • No one contests that local governments can regulate the time, place, and manner of public sleeping pursuant to their power to “enact regulations in the interest of the public safety, health, welfare or convenience.” Schneider v. State (Town of Irvington), 308 U. S. 147, 160 (1939). This power includes controlling “the use of public streets and sidewalks, over which a municipality must rightfully exercise a great deal of control in the interest of traffic regulation and public safety.” Shuttlesworth v. Birmingham, 394 U. S. 147, 152 (1969). When exercising that power, however, regulations still “may not abridge the individual liberties secured by the Constitution.” Schneider, 308 U. S., at 160.
• The use of “objectively reasonable” is vague and will lead to litigation.
• Using a standard of review that assesses the totality of circumstances to determine what is objectively reasonable creates a moving target. A city could adopt an ordinance that complies one month but not the next.
• The law is modeled after an Oregon law passed in response to the Grants Pass decision in the Ninth Circuit (overturned). Portland was sued within the first three months of the law’s effective date. Instead of incurring litigation time and costs the city chose to settle the case for $175,000 in attorney’s fees.  We have no reason to expect a different outcome in Washington.
• Rather than create litigation that reduces the limited resources we have, we are asking that the state partner with cities to create a revenue source to create housing for our most vulnerable residents.

Date to remember

HB 1380 will be heard in the House Appropriations Committee on Tuesday, February 12 at 4 pm.