Court Scrutiny of Anti-Camping Laws

Posted on January 18, 2019


David Warner is a local government and land use attorney with Ancel Glink in Chicago.


David WarnerOakland, California’s latest attempt to provide temporary housing for homeless residents through its Community Cabin program reflects the growing quandary western cities face as they attempt to comply with federal court decisions requiring communities to do more for the homeless.

The program, promoted by the City as “an effective and compassionate intervention” to help end a resident’s “unsheltered status,” has met with mixed success since it was introduced last summer.  It consists of several dozen insulated equipment sheds at each site, the type commonly found in residential backyards to house lawn mowers and tools, scattered throughout the City near locations where homeless encampments exist.

The sheds house two people on a temporary basis, separated by a privacy curtain, with enough room for a bed and some personal belongings.  At the same time it is building sheds, the City is razing the unsightly and unhealthy encampments causing some to wonder what happens to individuals once they choose to, or some cases are required to, leave the sheds.

Much of the City’s efforts stem from a recent federal court decision finding Boise, Idaho’s anti-camping ordinance violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

The ordinance outlawed the use of streets, sidewalks, parks, or public places for camping, as well as private or public buildings, without the permission of the owner.  Six homeless individuals arrested under the ordinance filed a lawsuit claiming the law was unconstitutional because it made it a crime to merely sit, lie or sleep in public.

The Ninth Circuit Court of Appeals agreed, finding such conduct to be a universal and unavoidable consequence of being human given everyone is biologically compelled to rest.  It limited its application, however, to those times when there are more homeless individuals in a community than available beds and did not otherwise say that local governments were required to build and operate shelters.

However, in places like Alameda County, California, which includes the cities of Oakland and Berkeley, studies show the homeless population exceeds the number of available beds by more than two to one.  Even Boise could not meet the demand for available beds on many nights and it is rare for any major metropolitan area to be able to supply enough housing for all the residents who need it.

In addition, many homeless individuals complain that the housing options a community provides offer the same dangerous conditions, in confined spaces, that they face outdoors.

The Ninth Circuit decision is not new but, rather, follows a similar decision the Court made in a case out of Los Angeles in 2006.  It covers the nine western states that fall within the Court’s jurisdiction but may be an indicator of how courts in the rest of the country will decide future challenges to anti-camping ordinances as well as other attempts by municipalities to exert greater control over the public right-of-way.

Advocates for the homeless, such as the National Law Center on Homelessness and Poverty, have been finding success in challenges to municipal bans on camping and loitering, efforts to remove encampments, restrictions on panhandling and living in vehicles, and similar laws intended to address issues related to homelessness.

In fact, in its most recent report on the issue, the Center claimed to have achieved success in 75% of its cases challenging the eviction of homeless encampments, 57% of cases challenging anti-camping ordinances, and 100% of cases attacking restrictions on panhandling.

While many municipalities have programs in place to address homeless issues, such as housing departments, health care services, and job training, other communities without a history of providing such assistance may be forced to start doing more or find themselves subject to lawsuits.  In Boise, for example, there were only three homeless shelters in the City and all were operated by nonprofit organizations.

This left Boise with a choice between funding more places to house the homeless or foregoing some of its restrictions on overnight camping on public property.  In fact, the City eventually amended its anti-camping ordinance to restrict its enforcement except on nights when there are enough shelter beds available.  As courts continue to take a closer look at the constitutional rights of homeless individuals, local governments should expect to face similar choices between increasing funding or reducing restrictions.


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