Court Says Cities Can’t Criminalize Sleeping Outside Absent Other Housing or Shelter Options

Written by Eric Tars, Senior Attorney, National Law Center on Homelessness & Poverty.

Last Tuesday, September 4, the 9th Circuit Court of Appeals affirmed that people experiencing homelessness cannot be punished for sleeping outside in the absence of adequate alternatives. The case, Martin v. Boise (formerly Bell v. Boise), challenged Boise, Idaho’s ban on sleeping in public.

The court stated that “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.” Not only does that mean a bed must be available, but that it must be practically accessible. The court noted its concern that shelter policies such as religious or length-of-stay restrictions may make a bed practically inaccessible to a given individual.

Last week’s case builds on numerous other legal decisions, as well as the federal Department of Justice intervention at the lower level of the Bell v. Boise case. It is also consistent with the Department of Housing & Urban Development’s funding incentives in its Continuum of Care grant program to decrease criminalization, and the U.S. Interagency Council on Homelessness’s recently updated Federal Plan to End Homelessness.

Many cities’ initial reaction may be one of frustration — that they can no longer use these criminalizing laws to force homeless people out of public view (and often, into jail cells). But smart advocates should look to flip the script: this does not limit cities’ options, but rather opens them up.

Now, when a business or other constituent comes to a city councilor asking to “do something” about the homeless person on their corner, the councilor has the freedom to say “Well, the courts have said we can’t simply arrest that person to remove them. But you can work with me. And we can develop better alternatives that will get that person off your corner and into the housing and services they need. And that will solve the problem for both you and the person experiencing homelessness.”

Service providers and other advocates in the community should then be stepping up to say “We have the alternatives you need. And, guess what — the evidence shows that they’re not only more effective, but cost less than the criminalization approach you’ve been taking. Just transfer some of those law enforcement resources to us and we can take these proven low-barrier shelter and Housing First approaches to scale.” Solving homelessness is a win for businesses, a win for homeless people, and a win for the whole community (and for elected officials too)!

If advocates are seeking additional resources, the National Law Center on Homelessness & Poverty, together with the Alliance and more than 100 other organizations, launched the Housing Not Handcuffs Campaign in 2016. Readers can go to the website to endorse the campaign and review model policies and communications materials to implement constructive alternatives to criminalization in their towns.

Follow the National Law Center on Homelessness & Poverty @nlchphomeless@HNHCampaign, and @EricTars.