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Should Homeless People Have The Legal Right To Sleep Outside? The Supreme Court May Give Us An Answer

Homeless encampments on Skid Row, photographed on June 30, 2019. (James Bernal/KPCC)
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Is it a constitutional right to sleep on the sidewalk if you have nowhere else to go? It's a question the U.S. Supreme Court could answer if justices opt to hear the prominent homeless rights case, Martin et. al. v. City of Boise, Idaho.

The case has sent shockwaves across the West, a region where unsheltered homelessness is increasingly visible and public frustration with it is boiling over.

The high court is scheduled to consider taking up Martin v. Boise on Friday. The case revolves around claims by several currently and formerly homeless plaintiffs that the city of Boise violated their constitutional rights by criminally prosecuting them for sleeping outside. Plaintiffs argued it amounted to cruel and unusual punishment, in violation of the Eighth Amendment.

Last year, the 9th U.S. Circuit Court of Appeals ruled in favor of the homeless plaintiffs. In the opinion, Judge Marsha Berzon wrote:

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"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."

But many public officials, business leaders and resident groups say the 9th Circuit ruling goes too far in restricting the government's ability to respond to the myriad of health and safety problems created by people living on the street.


In Southern California, nearly 30 different local governments -- including both the city and County of Los Angeles -- filed legal briefs urging the Supreme Court to review the case. Several Southern California business groups did the same.

A brief filed by the International Downtown Association and other property owner groups said the Martin decision is "handcuffing local governments' ability to actively address homeless issues," effectively putting the onus of conducting outreach and cleanups on private organizations and individuals.

Another brief filed by seven Orange County cities said the decision was "dangerous." "If this decision remains in effect, local governments throughout the Ninth Circuit may find themselves unable to enforce a wide range of public health and safety ordinances," the brief reads.

Stephen Eide, a Manhattan Institute fellow who filed his own brief, said governments elsewhere in the West fear their own homeless problems could morph into something like Southern California's.

"Boise doesn't want to become like Los Angeles, thus it wants to pass these ordinances and enforce them, and hopefully can prevent that future."


Most organizations that work with the homeless disagree with governments and business organizations that filed briefs opposing Boise. But two of L.A.'s largest homeless service providers bucked that trend: The People Concern and The Weingart Center.

A brief filed by the homeless service organizations with the Supreme Court follows logic similar to that of local governments and business groups. It argues that the 9th Circuit's decision in Martin v. Boise establishes "rights to reside in encampments" that are detrimental to efforts to get people off the street. The brief reads:

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"The rising permanency of encampments makes it harder for service providers to reach homeless individuals in the first place. Even setting aside the health and safety risks, service providers find it harder to succeed in their missions when individuals view encampments as their homes. Many are reluctant to accept housing and services, and may be distrustful of those who offer them."

They argue that if law enforcement were allowed to break up "cemented" encampments, the problem would be easier to address.

Neither The People Concern nor The Weingart Center responded to multiple requests for comment from KPCC/LAist.


Los Angeles does break up encampments. The city spends tens of millions each year on encampment "sweeps" that rely on police enforcing municipal ordinances related to the public right-of-way. And L.A. continues enforcing its own citywide ban on sleeping on public property.

Police data indicates officers have written more than 520 tickets in 2019. More than 300 of those arrestees were booked with misdemeanors.

Becky Dennison, who directs Venice Community Housing, agrees with the 9th U.S. Circuit Court's ruling. She said she's disappointed that so many local governments have asked the Supreme Court to review it.

"It's completely disconnected from the stated policy goals," Dennison said. "It's completely disconnected from the devastation that folks are feeling on the streets because of criminalization. Just a waste of our time and money and energy."

The latest, annual count tallied 56,257 homeless people living in Los Angeles County's continuum of care (this doesn't include Pasadena, Glendale and Long Beach, which do their own counts) but only 15,617 shelter beds. That means there is only enough shelter for about one in four homeless people.

"We firmly know that there are not enough safe and available options for people, and we agree that it is cruel and unusual punishment to criminalize people who you've offered absolutely no alternative for, and explicitly know that there is no alternative for," Dennison said.

Eric Tars, legal director of the National Law Center on Homelessness and Poverty, said the Boise decision doesn't stop cities from regulating behavior on the streets, only that they cannot enforce criminal penalties against homeless people for "life sustaining activities."

"The fact is, it is politically convenient to be able to criminalize because it's an immediate thing that you can do to show your constituents that you're quote-unquote 'doing something' about the visible homelessness in your community."

Tars said the costs of this approach are obscured in police, court and jail budgets.

The Supreme Court could announce whether or not it plans to hear the case as soon as Monday, December 9.