Cities that prohibit public camping without offering adequate homeless shelter are violating the Constitution.
That’s an argument that local homeless advocates have been making for a long time. Recently, they got a new ally: the Department of Justice.
Earlier this month, the DoJ sent a Letter of Interest (sort of like an informal amicus brief) to the judge in Bell vs. Boise. In that case, the plaintiffs have argued that Boise’s prohibition on public camping amount to “cruel and unusual punishment” under the 8th Amendment. The DoJ’s Letter effectively agrees with the plaintiffs, going something like this:
Per the 8th Amendment, it’s unconstitutional to punish someone for conduct that they cannot avoid. Since Boise doesn’t have adequate homeless shelter, public camping is unavoidable for homeless people. Therefore, Boise’s prohibition on public camping is unconstitutional.
As the DoJ wrote in its Letter:
“[T]he Court should consider whether conforming one’s conduct to the ordinance is possible for people who are homeless. If sufficient shelter space is unavailable because a) there are inadequate beds for the entire population, or b) there are restrictions on those beds that disqualify certain groups of homeless individuals (e.g., because of disability access or exceeding maximum stay requirements), then it would be impossible for some homeless individuals to comply with these ordinances. As set forth below, in those circumstances enforcement of the ordinances amounts to the criminalization of homelessness, in violation of the Eighth Amendment.”
This wouldn’t be the first time a Letter of Interest has impacted Washingtonians. In 2013, the DoJ successfully used one to persuade a federal judge that the lack of adequate public defense attorneys in Mount Vernon and Burlington amounted to a violation of poor defendants’ rights. According to the New York Times, the DoJ has been increasingly using these Letters of Interest in recent years as a cost-effective way of advancing its civil rights agenda: rather than mounting its own costly lawsuits, the DoJ is “piggybacking” on existing cases involving solitary confinement of child prisoners, treatment of transgender students, and videotaping of police.
The DoJ Letter in Bell vs. Boise “legitimizes the arguments that we’ve been making,” says Sara Rankin. She’s the law professor who heads the Homeless Rights Advocacy Project (HRAP) at Seattle University. In May, we covered an HRAP study that showed how cities all over Washington, including Seattle, have passed exactly the kinds of laws that the DoJ now says are unconstitutional. (You can also see our detailed take on Seattle’s anti-homeless laws here.) Like the DoJ and the plaintiffs in Bell vs. Boise, HRAP has argued that anti-camping ordinances are unconstitutional because homeless campers have nowhere else to go.
While the DoJ Letter is limited to anti-camping ordinances, Rankin thinks its basic logic applies to a wider swath of anti-homeless laws. “No one can survive without protecting themselves from the elements, without asking for help and receiving help,” says Rankin. If courts accept the basic premise that laws prohibiting “necessary, life-sustaining activities” for homeless people are unconstitutional, she says, then many of the laws that HRAP has agitated against will fall like dominoes.
Joined by the ACLU of Washington and several other activist organizations, HRAP argued as much in a letter they sent yesterday to prosecutors and city attorneys throughout the state: “We urge you to closely review your city ordinances governing the use of public spaces that are enforced against homeless individuals,” they wrote, “and to repeal any that are constitutionally suspect in light of the authority cited by DOJ and in this letter.”
We’ve reached out to the city attorney’s office to get their response.
City attorney spokesperson Kimberly Mills tells us that "There is no blanket ban in this City as there is in Boise." The city does, however, have laws that prohibit sitting/lying on the sidewalk in certain areas, erecting tents on sidewalks, and camping in parks. "Whether these ordinances would be applied to any particular situation is up to the prosecutor," wrote Mills via email.