On September 4, 2018, the Ninth Circuit Court of Appeals filed its decision in Martin v. Boise, 902 F.3d 1031 (2018). In doing so, the Ninth Circuit laid down its guidance on how law enforcement deals with the homeless population – in terms of arrest and charging – but, in doing so, should give pause to every municipality in the Ninth Circuit’s jurisdiction on just how to meet the standard.
The City of Boise adopted camping and disorderly conduct ordinances which made it a misdemeanor to camp or sleep on its streets, sidewalks, parks, or public places. Boise has a significant homeless population and there are three homeless shelters run by private, nonprofit groups. One of the shelters does not turn people away for lack of space, but it refuses to shelter homeless persons who exhaust a set number of days in the shelter.
In Martin, one of plaintiffs was criminally cited for going back on the street after reaching the limit for males in the shelter.
Plaintiffs argued, and the Ninth Circuit agreed, that enforcing a statute prohibiting sleeping outside in a public space against homeless individuals, with no access to alternative shelter, violates the Eighth Amendment’s prohibition on cruel and unusual punishment. The court held that just as a municipality cannot criminalize being homeless in a public place, it also may not “criminalize conduct that is an unavoidable consequence of being homeless – namely sitting, lying, or sleeping on the streets.”
The Ninth Circuit stands alone as the first federal circuit holding that the Eighth Amendment prohibits criminalizing people experiencing homelessness for sleeping outdoors, on public property, where no beds are available at homeless shelters.
In reality, Martin does not require cities and towns to take any affirmative action. Instead, it requires municipalities in the Ninth Circuit (which includes Arizona) not to arrest or charge people experiencing homelessness for sleeping outside in public spaces where there is no alternative sheltering in the community.
Keep in mind, the Ninth Circuit’s ruling has narrow application. The decision suggests the Eighth Amendment is not violated where an arrest and charging decision is made under circumstances where there is a reasonable, alternative shelter available, but the arrestee chooses not to take advantage of it. From a practical standpoint, it would appear that law enforcement, prior to making an arrest, charging, or referral for charging decision, needs to know 1) what alternative shelters are available, 2) the policies and practices of those shelters, and 3) whether a reasonable, alternative sheltering option was available to the arrestee, but was not utilized by the arrestee.
Depending on the community, this may be no easy task.
AMRRP is committed to partnering with its Member Law Enforcement Agencies and stands ready, through its LEAP Program, to provide advice on the application of Martin v. Boise to its Member communities to ensure best police practices, and constitutionally acceptable interface with the homeless population.
This service is not meant to be a substitute for advice provided by your City or Town Attorney or County Attorney’s Office giving advice to your municipality on criminal case issues. Rather, it is a resource available to AMRRP Members where counsel is not available, or City or Town counsel requires the expertise of an attorney experienced in law enforcement and constitutional matters.
To access this, or any of AMRRP’s other LEAP services, please contact Jim Gill [email protected] 602-368-6656.
