Page 30 - Pierce County Lawyer - January February 2024

YOUNG LAWYERS REPORT
It’s become impossible to ignore the homeless crisis that exists in this country. Especially in the nine states under the Ninth Circuit’s jurisdiction where 42% of the country’s
homeless population now lives. According to the most recent national [point in time] count data, there are more than half a million individuals experiencing homelessness in the United States. In terms of absolute numbers, Washington ranks third, outpaced only by California and Texas. Locally, the homeless encampments in greenbelts, under bridges, and on our streets are a visible reminder that the current system is not working.
Communities across the country are grappling with the complex issues presented by growing homeless encampments and are struggling to find ways to handle collateral problems such as garbage and waste management, drug addiction and overdoses, increased crime, fires, and the spread of infectious disease. Politicians and citizens have called for change, arguing the homeless crisis is crippling the economic engines of downtown cities that serve as the main tax revenue source and are being turned into places where no one wants to visit, shop or live.
Homelessness has proven to be a politically radioactive subject, and empathy and goodwill have reached a tipping point. Rather than providing adequate housing options or effective, compassionate solutions, many communities criminalize homelessness by making it illegal for people to sit, sleep, or even eat in public places, despite the absence of adequate alternatives. Such ordinances create the backdrop of City of Grants Pass v. Johnson, et al.
City of Grants Pass v. Johnson, et al.,
-- how did we get here?
In Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), the Ninth Circuit held that the Cruel and Unusual Punishments Clause prevents cities from enforcing criminal restrictions on public camping unless the person has “access to adequate temporary shelter.”
Then in Gloria Johnson, et al v. City of Grants Pass, No. 20- 35752 (9th Cir. 2023), the 9th Circuit extended Martin to a class-wide injunction, prohibiting the City of Grants Pass from enforcing its public camping ordinance even through civil citations, again holding that laws regulating camping on public property constitute “cruel and unusual punishment” under
the 8th Amendment. The panel affirmed the designation of a class of “involuntary homeless” persons pursuant to Fed. R.
Civ. P. 23(b)(2). This is gauged by a shelter availability test in each municipality, and if the number of secular shelter beds is less than the homeless population, the persons are considered involuntary homeless1.
The five municipal ordinances at issue, described as an “anti- sleeping” ordinance, two “anti-camping” ordinances, a “park exclusion” ordinance, and a “park exclusion appeals” ordinance, result in civil fines. Persons found to violate ordinances multiple times could be barred from all city property. If a homeless person is found on city property after receiving an exclusion order, they are subject to criminal prosecution for trespass.
In a lengthy series of opinions about these purported new rights of the homeless, the Ninth Circuit denied rehearing en banc (14-13), setting up a showdown in the Supreme Court.
Progressive politicians and cities have joined Republican leaders in criticizing the 9th Circuit ruling leading to a flurry
of amicus briefs and filings requesting the high court’s intervention. Seattle joined a dozen other cities, including Tacoma and Spokane, asking to overturn the decision. They argue that the precedent set by the Ninth Circuit is a violation of the separation of powers and that strategies for helping their unhoused residents should be a decision made by local officials and the legislature. Politicians argue that the erected judicial roadblocks and requirements have vastly limited local police powers and placed financial burdens on local governments making it impossible to effectively address public safety and policy.
1 A person may not be prosecuted for conduct that is involuntary or the product of a status. The decision contemplates Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006)(stuck an ordinance preventing lying or sleeping in the street under the 8th A because it criminalized involuntary drug addicts); Robinson v. California, 370 U.S. 660 (1962)(court struck down a law making it a criminal offense to be addicted to the use of narcotic under the 8th A.); Powell v. Texas, 392 U.S. 514 (1968)(8th A not violated by prosecution for public drunkenness because not punished on the basis of status as an alcoholic, but for the actus reus of being drunk in public); Ingraham v. Wright, 430 U.S. 651 (1977)(8th A protects status, not conduct of being homeless).
30 PIERCE COUNTY LAWYER | January/February 2024