A Dec. 16 Supreme Court decision to deny a petition to review Martin v. City of Boise has finalized a significant holding by the 9th Circuit Court of Appeals which protects the right for homeless people to sleep in public spaces without reprisal.
The Circuit Court ruling held that if a homeless person has no option of sleeping indoors, a city cannot cite or punish him or her for violating an ordinance disallowing sleeping outside in a public space.
The decision effects how cities across the West may deal with their homeless populations.
“It gives us less tools to deal with perceived problems,” said Cottage Grove Police Captain Conrad Gagner, though he added that the court decision is not a critical restraining factor for law enforcement.
“It hasn’t been a real pervasive problem since the decision was made in 2018,” he said.
The case began in 2009 when Robert Martin and five individuals challenged Boise’s ordinances restricting public camping and sleeping, alleging that enforcement of those ordinances violated the Eighth Amendment’s prohibition against cruel and unusual punishment.
Years of legal wrangling culminated in the 9th Circuit Court reversing a lower court ruling in 2018, Judge Marsha Berzon writing that “imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter” amounted to the unconstitutional criminalization of homelessness.
“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,” she wrote.
Critics of the decision feel the federal court has given homeless people the ‘de facto right’ to sleep on sidewalks.
The City of Boise states on its website that “the 9th Circuit’s decision effectively creates a constitutional right to camp, holding that cities cannot prevent anyone from camping until they first provide enough shelter beds for everyone, thus exempting public encampments from a host of public health and safety laws.”
The court decision effects nine Western states, Oregon among them. Thus, cities like Cottage Grove with no permanent shelters must find alternative methods to solve the challenges faced by their homeless populations.
The state of homelessness in Cottage Grove is not easy to quantify and its location next to the I-5 corridor lends to a degree of the transient presence.
Even among the more rooted unhoused, true numbers are hard to come by.
“I think there are a lot more homeless people than are evident,” said Gagner.
Though there is a pronounced homeless population in Cottage Grove, Gagner said that even prior to the court’s decision, meting out punishment for those sleeping outside was not common practice.
“We rarely issue citations for the ordinance of unlawful lodging,” he said. “Only in the most extreme circumstances.”
The past few years, though, have seen a push by the city to get homeless camps on the outskirts of town out of the woods.
“But the first thing I said was, ‘They’re going to go somewhere,’” Gagner said. “They ended up in town under bridges and business doorways. … They’re human beings. They exist. And they have to sleep.”
Still, a solid solution to the challenge of homelessness remains elusive. In light of the court decision, a contingent of unhoused denizens could theoretically set up a semi-permanent camp on public property in town.
However, averting sanitation violations such as littering could pose an unworkable challenge and would require a highly organized system for success.
“It’s just a problem that I don’t see a really good solution to,” Gagner said. “Eugene tried a thing a few years ago with a contained area where they had security and let people camp outside and that turned into a nightmare — from sanitation and other things.”
In 2018, the City of Eugene set up temporary homeless camping on county-owned land along Highway 99, known as Camp 99, as an “emergency stopgap” to dozens of people camping in a lot across the street from the county courthouse. Camp 99 officially closed last January after the camp was reportedly becoming unsafe.
“If the city established something like that … there’s no reason for me to think it would turn out any differently than the failed experiment in Eugene,” said Gagner. “I’ve given it a heck of a lot of thought. … The solution escapes me.”
Cottage Grove, however, is significantly less saturated than Eugene by the challenge of homelessness. As such, Gagner does not see the court decision as a particular burden to law enforcement methods.
“I would hesitate to charge somebody on our city ordinance of unlawful lodging even if we did have a facility that you could go to but for whatever reason they didn’t want to go there,” he said, citing the possibility of safety concerns at shelters. “You can’t force someone to stay where they don’t want to stay.”