LETTER: Reader shares thoughts on homeless, Martin v. City of Boise

[EDITOR’S NOTE: The following is a Letter to the Editor, submitted by a verified resident. It does not necessarily reflect the opinions of South King Media, nor its staff:]

To the Burien City Council: 

I appreciate the wisdom of Mayor Aragon’s decision, at the April 3 meeting, to delay public comment until after the City Manager had given his informative report on Burien’s homeless crisis. Issues raised in the report prompted me to conduct some research into Martin v. City of Boise 902 F.3d 1031 (9th Circuit 2018), amended by 920 F.3d 584 (9th Circuit 2019).

On the merits, Martin holds that municipalities cannot criminalize the status of being homeless. Writing for the panel, Judge Berzon found that an ordinance that “allowed for the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter” unconstitutionally criminalized homeless status. Martin at 1138. She stated the holding was limited to the involuntary status of being homeless. “Our holding is a narrow one. We in no way dictate to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets…at any time and at anyplace.” Martin at 1138. Martin made clear that its opinion does not apply to “individuals who do have access to adequate temporary shelter, whether they have the means to pay for it or because it is realistically available to them for for free, but chose not to use it.”(emphasis mine) Martin also states that it does not prohibit ordinances “barring the obstruction of public rights of way, or the erection of certain structures”, such as tents. Martin simply tells us that Cities cannot arrest or fine sleeping “somewhere” in public if one has nowhere else to go. 

There were three homeless shelters in Boise, all run by private, non-profit, faith-based organizations. When all available beds were full, all the shelters resorted to mats on the floor to accommodate the homeless overflow. I understand that a similar organization offered shelter to individuals on March 31, but for some reason the City intervened and did not permit such assistance. As Martin states, Cities are not required to do anything, except not criminalize (not arrest nor fine) homelessness. They are not required to intervene in a private organization’s offer of shelter, a bed or a mat. 

Martin tells us that an absolute ban on camping on City property at all times criminalizes homelessness. The Court differentiated between involuntary v. voluntary conduct. Status v. Conduct. Martin did not leave municipalities without recourse. Cities do not have to abandon enforcement of laws regulating public health and safety, and can apply generally applicable laws to the unhoused (e.g., litter, public decency, illegal drug use and sale, etc.) Cities can pass ordinances prohibiting camping in certain areas, such as: those surrounding downtown business districts, schools, playgrounds, parks, environmentally sensitive areas. 

As you are no doubt aware, Tacoma recently (effective November 14, 2022) passed an ordinance banning camping and storage of personal belongings within certain areas of the City. In commenting on prohibiting camping within a 10-block area surrounding shelters, Mayor Woodards stated that “I’m not voting for this so that we can criminalize homelessness, … [but] so we can get people to accept the services we offer.” www.King5.com/article by Helen Smith October 11, 2022

In short, Burien can identify a location “somewhere” unhoused individuals can lawfully be when they cannot find or afford shelter indoors. (Two areas were briefly mentioned during the April 3 meeting: one in King County, one in a parking lot?) Burien can also pass camping ordinances banning certain areas where camping is illegal. 

Respectfully, 
Barbara Yamashita 
Concerned Citizen

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