In Martin v. City of Boise, the Ninth Circuit held that if a person experiencing homelessness has no alternative to sleeping outdoors, a city cannot issue a citation for violating a “sit-lie” ordinance.
The City of Boise, Idaho adopted a camping ordinance and a disorderly conduct ordinance that made it a misdemeanor to camp or sleep on the streets, sidewalks, parks, or public places. Boise has a significant homeless population and three homeless shelters run by nonprofit organizations.
One of the plaintiffs in this case was cited for sleeping outside. He had previously been staying at a shelter, but reached the 17-day limit for male guests. To continue to stay at the shelter he would have had to join the shelter’s religious program, which he declined because of his religious beliefs. The Ninth Circuit concluded the First Amendment’s Establishment Clause prevents a city from coercing (via the threat of prosecution) a person to enroll in a religious-based program at a homeless shelter.
The Ninth Circuit’s holding is based on the Eighth Amendment’s prohibition against cruel and unusual punishment. In Robinson v. California (1962), the Supreme Court struck down a California statute criminalizing narcotic addiction because it made a disease a criminal offense. In a later decision, Powell v. Texas (1968), five Justices elaborated on the Robinson principle that “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” (Jones v. City of Los Angeles (2006)).
The Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.
According to the Ninth Circuit, “[t]his principle compels the conclusion that the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” In other words, just as a city may not criminalize being homeless in a public place, it also may not “criminalize conduct that is an unavoidable consequence of being homeless – namely sitting, lying, or sleeping on the streets.”
However, the court clarified that its holding is narrow. Quoting Jones, the court explained, “[W]e in no way dictate to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets . . . at any time and at any place.” The court also stated that its holding does not apply to those who can pay for temporary housing or have free housing available to them and choose not to use it. The court further explained that “[e]ven where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible. So, too, might an ordinance barring the obstruction of public rights of way or the erection of certain structures.”
As such, the impact of this decision will be very fact-specific based on each city’s ordinances and implementation of those ordinances. As with all new binding court decisions, we encourage city attorneys to review their city’s ordinances and policies.