The Justices are Wrong
In a recent LA Times article some of the most powerful judges in the U.S. criticized the ruling in Martin v Boise and the decision not to rehear the Grants Pass ruling. These conservative justices state that Martin v Boise “effectively guarantees a personal constitutional right to camp”.
In a recent WSJ article, they wrote that the Martin v Boise ruling gives “a right to public vagrancy” and “left local government without a clue”. They also state that the ruling requires “enough beds for every vagrant”.
These two articles have serious flaws. There is no ‘right to camp’ and there is “no right to vagrancy”. The 9th District Court of Appeals was quite clear on how to comply with the law and there should be no excuse for a clueless response from City government. And the ruling does not state that there needs to be a bed for every unhoused person.
However, Martin v Boise prohibits arresting someone, who does not have a place to sleep, because they are sleeping on public property. Homelessness cannot be a crime and if someone has no place to go, the only option cannot be prison.
The ruling discusses a baseline that if a shelter is filled more than 50% of the time, that is not enough shelter. But the justices leave it up the States and Cities to determine what public property can be used and how many shelter beds are needed.
The ruling is clear and outlined specifically how States and Cities could become compliant with the law. The ruling comes down to two very simple criteria.
1. Is there a lack of sufficient shelter?
2. If so, then someone with no place to sleep, can sleep on “some” public space.
Unless States and Cities come up with a plan that implements shelter for the homeless then they are doomed to re-traumatizing sweeps, daily encampment fires, and public health issues due to lack of sanitation.
But this was a choice that many Cities made. And under the pressure from nonprofits and developers who were armed with a Housing First strategy, they ignored those who were living on the streets in the hopes that a visible humanitarian crisis would fund development.
The justices in Martin v Boise have not “paralyzed the States and Cities of the 9th District”. The States and Cities themselves have made poor choices and ignored the rule of law; so much so that it is now the residents of these States who are paralyzed.
Where did Martin v Boise go wrong?
So, if the conservatives justices were wrong in their critique of the Martin v Boise decision, what about this ruling did go wrong?
First, the justices did not clearly define shelter. In the en banc case, they clarified that shelter does not need a traditional roof but they gave no further guidance on types of shelter. Under Martin v Boise a tent is considered a potential shelter option.
Second, the justices did not define how much shelter is required. They discussed shelters 100% full, 50% of time which meant many might not have access to shelter and the point in time counts of unsheltered people were not accurate. This led some Cities and States to believe that they needed to provide an amount of shelter over the number of point in time count. So that if a city had 10,000 unhoused it might need 11,000 shelter beds. The volume quickly became too daunting and too expensive to even begin to shelter folks and the status quo of encampments became even more appealing, allowing encampments to grow.
The justices also did not allow for the shelters to expand as more unhoused moved to a city or contract as more people got housing. And questions were left unanswered as to what to do with a shelter-resource that was by definition temporary, from expansion and contraction.
Third, they threw in red-herring topics that verged on distracting dicta. Discussing religious requirements of shelters led States and Cities to believe that their Housing First strategy was correct because it has no rules for affordable shelter such as no drugs or no smoking. And that if Cities wanted to provide shelter, it would need to be without constraints or personal responsibility.
But this is typical of our court system. The courts provide the legal guidance as it corresponds to the Constitution and local governments are left to discover their own solutions. But the cities and counties didn’t follow the law and didn’t find solutions. They claim to be paralyzed, but the courts have told them exactly how to comply.
As a result, those of us who live in the Western District are exasperated with the lack of coherent government response to a simple law. Provide shelter. We are overrun by unhoused people who make visible cries for help daily. We are overwhelmed with the smell of urine in business entrances. Our communities have been held hostage to encampments fires and refuse in our waterways. And we have become numb to the bizarre behavior of those without pants, dancing in the middle of a main thoroughfare.
Here are some plans that are working:
San Diego provides tent-shelter and enforces no camping
Non-traditional structures in: San Diego, Phoenix, Las Vegas, San Francisco
Phoenix judge declares encampment — public nuisance
References:
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