The Supreme Court has refused to hear a case that originated in Boise, Idaho several years ago concerning the constitutionality of laws that prohibit sleeping or camping in parks or on public streets when no shelter space is available.
In a case that's been closely watched by homeless advocates, the U.S. Court of Appeals for the Ninth Circuit, based in San Francisco, ruled in September 2018 in favor of the plaintiffs who argued that Boise's law violated the Eighth Amendment. The argument equates criminalizing homelessness and street encampments with "cruel and unusual punishment," and the Ninth Circuit's decision could be used as precedent to strike down San Francisco's own Sit/Lie ordinance from 2010.
As the New York Times reports today, lawyers for the city of Boise argued that the Ninth Circuit's ruling was already having "far-reaching and catastrophic" consequences for cities across the nation.
But writing for the majority of a three-judge panel at the Ninth Circuit, Judge Marsha Berzon wrote that "the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being." Berzon referred to earlier decisions, including one by the Supreme Court in the early 1960s, that struck down laws criminalizing public drunkenness by alcoholics, and drug addiction.
"As long as there is no option of sleeping indoors," Judge Berzon wrote, "the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter."
With SCOTUS refusing the hear the case, the Ninth Circuit's decision stands, and this provides new fodder for advocates who have railed against authorities in multiple California cities — including San Francisco — for conducting sweeps of homeless encampments on city streets. City officials here argue that the public health risks of long-term encampments without bathrooms or sanitation outweigh the rights of the homeless to exist in a place when shelter beds are sometimes impossible to come by. Apart from the rarely enforced Sit/Lie ordinance, San Francisco does not have a law quite like Boise's, which requires individuals to seek permission from public and private property owners before setting up camp or lying down to sleep.
As SFPD Sgt. Michael Andraychak told SFGate last year, "The Department and City realized many years ago that we cannot arrest our way out of the homeless crisis." Nonetheless, the controversial 2010 ordinance remains on the books.
The Obama Justice Department submitted a statement of interest in the Boise case back in 2015, saying essentially the same thing that the Ninth Circuit said in its ruling.