HISTORY OF THE CASE:

In 2018, the 9th Circuit Court of Appeals held in Martin, et al v. the City of Boise that the Cruel and Unusual Punishments Clause of the Eighth Amendment precluded the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter.

The court held that, 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.”

Boise appealed the decision to the US Supreme Court. Cities, counties, and states across the country filed amicus briefs (no Washington county asked WSAC to participate) encouraging the Supreme Court to take the case in order to clarify, if not overturn the lower court’s decision.

Many stated that the current decision is unworkable, requiring local governments to know whether shelter is available before prosecuting them, given the difficulty in counting the homeless population and determining how many shelter beds are needed. Some stated they do not have the capacity needed and others raised concerns that some shelter beds will not count toward the total available due to the shelters’ religious requirements.

Regardless, on December 16, 2019, the Supreme Court declined to hear the case, which means that the 9th Circuit’s decision stands and is applicable to nine western states, including Washington.

 

WASHINGTON STATE LEGISLATURE:

Last year, the Washington State House of Representative’s Civil Rights & Judiciary Committee heard HB 1591. The bill, which is technically alive in the 2020 legislative session, would codify the rights of people experiencing homelessness and create a civil cause of action, allowing state monies appropriated for civil legal aid to be used in such cases.

The people experiencing homelessness are not to be subject to criminal or civil penalties or harassment by law enforcement, public or private security personnel, or any agents of any public-private partnership established under any state or local law.

The bill prohibits discrimination based on housing status and declares that every person experiencing homelessness and who has no reasonable alternative but to survive in a public space has the following rights in public space:

  • The right to survive in a nonobstructive manner
  • The right to shelter oneself from the elements in a nonobstructive manner
  • The right to eat, share, accept, or give food in any public space where food is not prohibited
  • The right to occupy a motor vehicle or recreational vehicle provided that it is legally parked on public property or parked on private property with the permission of the property owner, and
  • The right to a reasonable expectation of privacy in one’s personal property.

The Civil Rights & Judiciary Committee passed a narrower version of the bill out of committee after hearing from the Association of Washington Cities, WSAC, and the Association of Washington Business about their concerns with the bill as originally drafted.

The bill was moved to the House Appropriations Committee but did not receive a hearing there in 2019.

 

BOTTOM LINE:

Regardless of whether any legislation passes, the 9th Circuit ruling stands as the law of the land for the states it applies to and would be used as precedent in similar cases from other states.