The Law and Homelessness
**The 2024 U.S. Supreme Court opinion in City of Grants Pass v. Johnson upheld local ordinances that criminalize sleeping in public. Martin v. City of Boise, cited in this blog post, should no longer be consulted as good law on this topic.**
In 2020, Washington had the country’s fifth largest population of people without housing, with a count of 22,923 for 2020, or 30 out of every 10,000 residents. While Florida and Texas have somewhat larger populations due to larger overall state populations, only California (41 out of 10,000) and New York (45 out of 10,000) have a higher percentage of the population who do not have housing. Housing unaffordability, inadequate mental health services, drug addiction, the homelessness-jail cycle, racism, and other social factors combine in complicated ways to cause both short and long-term homelessness.
In response to complaints from citizens worried about property destruction and safety, local governments have long used ordinances and criminal statutes to try to control homelessness. The ACLU of Washington explains that “Laws against encampments, trespassing and panhandling cause homeless people to be evicted from their dwellings, result in the destruction of their belongings, and restrict their free speech right to ask for help.” Several recent court decisions have highlighted the constitutional tension of targeting survival activities like living in public spaces or in cars.
In Martin v. City of Boise, 920 F.3d 584 (9th Cir.), cert. denied, __U.S.__, 140 S. Ct. 674, 205 L.Ed.2d 438 (2019), after a long period of litigation, the federal Ninth Circuit Court of Appeals held that Boise’s ordinance that banned sleeping and camping in public violated the Eighth Amendment of the Constitution. The Harvard Law Review explains the facts in the case:
Janet Bell was cited twice, once for sitting on a riverbank with her backpack, another time for putting down a bedroll in the woods. She pled guilty and received a thirty-day suspended sentence. Robert Martin, who has difficulty walking, received a citation for resting near a shelter. He was found guilty at trial and charged $150.
On October 22, 2009, Bell, Martin, and nine other homeless people sued the City.
The Ninth Circuit explained that any ordinance that allowed for the “imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter,” unconstitutionally criminalized homeless status, but the holding only applies to involuntary conduct as the Eighth Amendment bars punishing a person only “for lacking the means to live out the ‘universal and unavoidable consequences of being human.’” The practical effect of Martin is that local governments in the western United States cannot enforce bans on camping on public property if they do not provide enough open shelter spaces or alternative housing for everyone living on the streets. Washington’s Municipal Research and Services Center (MRSC) tracks municipal responses to Martin.
In August of 2021, in City of Seattle v. Long, 198 Wn. 2d 136 (2021), the Washington Supreme Court held that vehicles can constitute a person’s homestead under RCW chapter 6.13. The Seattle Times summarizes the facts in the case:
Long was living in his 2000 GMC pickup in 2016 when he returned from work at CenturyLink Field and found his truck was gone. He had been warned by police four days earlier that he was violating a city rule that vehicles parked on public streets must move every 72 hours. But his truck couldn’t move due to mechanical issues, according to Long’s attorneys. In 2018, a King County Superior Court judge ruled the city violated the state’s Homestead Act — a frontier-era law protecting homes from forced sale — by impounding the truck. The judge also said the $557 the city charged Long after the tow violated the U.S. Constitution’s Eighth Amendment, which protects against excessive fines. The city appealed, and last year the Washington Court of Appeals upheld the Homestead Act ruling but reversed the constitutional judgment.
The Washington Supreme Court reversed the Court of Appeals in part and held that the impound fee violated the Excessive Fines Clause of the Eighth Amendment. The court explained:
The central ten[et] of the excessive fines clause is to protect individuals against fines so oppressive as to deprive them of their livelihood. . . .
. . . The excessive fines clause descended from English law that sought to protect individuals from fines that would deprive them of their ability to live. This concern is directly related to an offender’s circumstances — in this case, homelessness and the circumstances forcing individuals into it. . . .
. . . We conclude . . . that courts considering whether a fine is constitutionally excessive should also consider a person’s ability to pay. . . .
Our gross disproportionality test considers “‘(1) the nature and extent of the crime, (2) whether the violation was related to other illegal activities, (3) the other penalties that may be imposed for the violation, and (4) the extent of the harm caused,’” as well as a person’s ability to pay the fine. In light of these factors, we conclude that the impoundment and $547.12 payment plan were unconstitutionally excessive.
MRSC provides more background on City of Seattle v. Long as well as resources for municipalities seeking to address camping in parked vehicles. Columbia Legal Services has additional information about the case.
Courts nationwide are concluding that we cannot fine and arrest our way out of the problems caused by homelessness. State and local political will is needed to address the lack of affordable housing and the underlying root causes of homelessness. In 2021 the Washington State legislature made an unprecedented investment in housing and homeless programs across the state. Governor Inslee has proposed over 800 million more dollars be appropriated in the 2022 supplemental budgets. As local governments seek solutions, advocates will continue to insist that those solutions respect the constitutional and statutory rights of those without housing. (RM)
Resources
Taking the Long Road: The Excessive Fines Clause as a Tool for Protecting Washington’s Unsheltered Population, 98 Wash. L. Rev. 1007 (2023)
Unconstitutionally Fining: Fining People Experiencing Homelessness in the Era of Timbs, 53 UIC J. Marshall L. Rev. 587 (2021)
Civilly Criminalizing Homelessness, 56 Harv. C.R.-C.L. L. Rev. 367 (2021)
More than Lip Service is Required: Excessive Fines Clause Limitations Upon Fining the Homeless, 54 St. Mary’s L.J. 629 (2023)
NO SAFE PLACE: The Criminalization of Homelessness in U.S. Cities, National Law Center on Homelessness & Poverty (2014)
HOUSING NOT HANDCUFFS 2019: Ending the Criminalization of Homelessness in U.S. Cities, National Law Center on Homelessness & Poverty
HOUSING NOT HANDCUFFS 2021: STATE LAW SUPPLEMENT, National Law Center on Homelessness & Poverty
National Homelessness Law Center Criminalization Resources
Criminalization of Homelessness, National Low Income Housing Coalition’s 2019 Advocates’ Guide
Combat the Criminalization of Homelessness Toolkit, Washington Low Income Housing Alliance
Homelessness & Housing Toolkit for Cities, Association of Washington Cities and MRSC
Regulation of Unauthorized Camping, Loitering, and Solicitation of Aid, MRSC planning resources
Temporary Sheltering Options and Amenities for Unsheltered People, MRSC resources
Seattle University School of Law’s Homeless Rights Advocacy Project
ACLU Washington Homelessness Resources
