Department Of Justice affirms Homeless Rights

A court case in Boise, Idaho is bringing national attention to the issue of homelessness and the right to sleep. The DOJ recently filed a statement of interest on the case, a move that homeless advocates see as support for the issue. The DOJ files statements when when an issue has national merit. By issuing a statement, the DOJ is not taking a formal position on the benefits of the case, but brings attention to areas that local courts can take on and can strongly influence a court’s decision on the matter at hand.

In Bell v. the city of Boise, the plaintiffs are seven homeless people who feel as though they have been systematically targeted. They have been repeatedly ticketed under Boise’s camping ordinance (ORD 28-14) which reads in part, “WHEREAS, the use of the streets, public areas, parks and  the Boise River riparian area for camping purposes interferes with the rights of others to use the areas for the purposes for which they were intended,”

In September 2014, Boise amended the ordinance to read in part,   

It shall be unlawful for any person to use any of the streets, sidewalks, parks or public places as a camping place at any time, or to cause or permit any vehicle to remain in any of said places to the detriment of public travel or convenience; or to cause or permit any livestock of any description to be herded into any of said places during any hours of the day or night provided that this section shall not prohibit the operation of a sidewalk café pursuant to a permit issued by the City Clerk.  The term “camp” or “camping” shall 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.  Indicia of camping may include, but are not limited to, storage of personal belongings, using tents or other temporary structures for sleeping or storage of personal belongings, carrying on cooking activities or making any fire in an unauthorized area, or any of these activities in combination with one another or in combination with either sleeping or making preparations to sleep (including the laying down of bedding for the purpose of sleeping).

Law enforcement officers shall not enforce this camping ordinance when the individual is on public property and there is no available overnight shelter.  The term “available overnight shelter” is a public or private shelter, with an available overnight space, open to an individual or family unit experiencing homelessness, at no charge. If the individual cannot utilize the overnight shelter space due to voluntary actions such as intoxication, drug use, unruly behavior, or violation of shelter rules, the overnight shelter space shall still be considered available.”

The DOJ statement says that the plaintiffs claim that, “the City of Boise and the Boise Police Department’s (“BPD”) enforcement of these ordinances against homeless individuals violates their constitutional rights because there is inadequate shelter space available in Boise to accommodate the city’s homeless population. Plaintiffs argue that criminalizing public sleeping in a city without adequate shelter space constitutes criminalizing homelessness itself, in violation of the Eighth Amendment.”

The Plaintiffs in the Boise case are asking the court to follow a Supreme Court case, Jones v. City of Los Angeles where it was ruled that on nights where there is inadequate shelter space, anti camping ordinances violate the 8th Amendment. By issuing a statement of interest, the United States “makes it clear that “the Jones framework is the appropriate legal framework for analyzing Plaintiff’s Eighth Amendment claims. Under the Jones framework, the Court should consider whether conforming one’s conduct to the ordinance is possible for people who are homeless.” The DOJ goes on to say something even more telling,  “If sufficient shelter space is unavailable because a) there are inadequate beds for the entire population, or b) there are restrictions on those beds that disqualify certain groups of homeless individuals (e.g., because of disability access or exceeding maximum stay requirements), then it would be impossible for some homeless individuals to comply with these ordinances. As set forth below, in those circumstances enforcement of the ordinances amounts to the criminalization of homelessness,in violation of the Eighth Amendment.

There are at least two examples of Supreme Court rulings that strengthen this statement. As Mark Joseph Stern points out in an article for Slate, in Robinson v. California, a California Statute was struck down when the court found that the state could not criminalise the “status” of drug addiction. He goes on to say that a Texas statute on public drunkenness (Powell v Texas) could apply to voluntary public drunkenness, but could not be used to punish those who are addicted to alcohol.  These create a framework where it’s likely that homeless people who are unable to conform to rules and regulations of public shelters, would still be protected from heavy handed ticketing for camping because addictions prevent them from being able to access available shelter.

What does this mean locally? We reached out to the city of Ashland and received the following statement from City Attorney Dave Lohman who says,

“While DOJ’s statement surely will be taken seriously, the court is not bound by it in any way.  The extent to which a judgment in the case will embrace the points made in the statement and the consequent practical implications for local jurisdictions – including possible new enforcement, property maintenance, infrastructure, financial, and interjurisdictional cooperation obligations – is impossible to foresee at this time, long before the case and possible appeals are decided.

Until Bell v. Boise is decided, the City of Ashland has no legal obligation to modify its proscription of unpermitted occupation of public property to the exclusion of use by the general public.

At any time, City Council could, of course, amend AMC 10.46 for any reason, including agreement with some or all of the points in the USDOJ statement.  Any revisions to Ashland’s ordinance before Bell v. Boise is finally decided could have to be reconsidered after its ramifications are clear.”

SIDEBAR: Ashland Oregon targeting homeless?

Right in the middle of Occupy Ashland’s 24/7 occupation of the city plaza in 2011, I held a front row seat throughout the late night and early morning hours and got a firsthand glimpse of how our city police targeted homeless people. Several times I stood just steps away and watched APD hand out tickets under Ashland’s camping ordinance (2972) which reads in part:


PROCEDURES.  WHEREAS the City of Ashland wishes to modify and update the City Ordinance relating to Prohibited Camping to clarify the offense is a violation and not a crime and to adjust timeframes and other provisions and THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS SECTION 1 Section 10 46 020 Camping Prohibited is hereby amended to read as follows No person shall camp in or upon any sidewalk street alley lane public right of  way park or any other publicly owned property or under any bridge or viaduct unless otherwise specifically authorized by this code bv the owner of the property or by emergency declaration under AMC26 20 30 of the Mayor in emergency circumstances. “

The Rogue Valley Community Press wants to hear from our homeless community. How has this affected you? Have you been ticketed and what was the outcome?

Back in 2011, we tried to do “Court Watch” and are willing to take that on again, so if you have a court date and want a witness, please contact us at 541.622.9483 or