A recent statement by the U.S. Department of Justice regarding a little-known local ordinance in Boise, Idaho could have broad-ranging impacts on ordinances elsewhere pertaining to homeless people's right to exist in public spaces. As Consumerist reports, the DOJ submitted a "statement of interest" in the case in which the Boise law outlawing sleeping or camping in public spaces was being challenged by the National Law Center on Homelessness & Poverty. In the statement, citing earlier Supreme Court rulings on things like laws against public drunkenness, they conclude that such laws violate the Eighth Amendment, which protects against cruel and unusual punishment.
The legal issue has to do with the difference between criminalizing conduct, and criminalizing a person's status. If a person's status, as homeless, means that they must sleep somewhere in a public space, outlawing that conduct is equivalent to criminalizing their status, if that status can not be helped.
The precedent cited was a SCOTUS case from 1968 in which the deciding opinion made the distinction between criminalizing public drunkenness, and cases in which such conduct is unavoidable saying that if an alcoholic is powerless to prevent themselves from being found drunk in public, he or she should not be punished for it.
The Chronicle discussed the potential implications for SF's controversial 2010 sit/lie ordinance, which was put forth by then mayor Gavin Newsom, which outlawed sitting or lying on sidewalks between 7 a.m. and 11 p.m., and which set forth escalating punishments for repeat offenders. Additionally, sleeping in public parks in SF is not allowed after parks close, between the hours of midnight and 5 a.m.
While the sit/lie law was being debated, homeless advocates repeatedly argued that homelessness should not be criminalized, and last year some 11,000 citations were issued for either park sleeping, or sidewalk lingering. It's also arguable that the law has never been fairly enforced across all neighborhoods, with more crackdowns in the Haight, say, than in the Tenderloin.
The DOJ filing occurred two weeks ago, and is non-binding, but it is likely to lead to further challenges.
