August 4, 2021
A Ninth Circuit Federal Court Decision Impacts The Entire Western United States
A question I am often asked is why the number of encampments around the City has increased so drastically over the last few years.
To start this story, we have to go all the way back to 2003 when the ALCU filed a lawsuit against the City of Los Angeles (Jones v. City of Los Angeles) for citing and prosecuting unhoused individuals pursuant to the City’s no-camping ordinance. A Ninth Circuit Court of Appeals (the federal appellate jurisdiction encompassing most of the Western United States) concluded that the City could not enforce its ordinance “so long as there is a greater number of homeless individuals in Los Angeles than the number of available beds [in shelters].” Then-Police Chief Bill Bratton advised the City to appeal the Ninth Circuit’s decision, but, apparently too afraid to fight for its own power to regulate public health and safety, the City settled the case in 2006 and simply suspended enforcement.
Meanwhile, permanent homeless encampments began to proliferate around Los Angeles. Crime and violence exploded everywhere.
Then things got even worse. In September 2018, the Ninth Circuit issued a binding decision in the case of Martin v. City of Boise. As of 2016, there were approximately 867 homeless individuals in Ada County, 125 of whom were unsheltered. The City of Boise had three local shelters, with a total of 354 beds and 92 “overflow mats.” Because of differing check-in times and stay limits at some of the shelters, on any given night, a small portion of the homeless population did not have available shelter. After the litigation began, the Boise Police Department implemented a “Shelter Protocol,” whereby the shelters notified the police at 11:00 p.m. whether they were full, and if all shelters were full on the same night, the police did not enforce the no-camping ordinance.
According to the Ninth Circuit in the Boise decision, the Eighth Amendment prohibition against “cruel and unusual punishment” precluded arrest and criminal prosecution of unsheltered persons unless adequate shelter was available. However, the Court went on to explain: “Our holding is a narrow one. Like the Jones panel, we in no way dictate to the City that it must provide sufficient shelter for the homeless or anyone who wishes to sit, lie, or sleep on the streets at any time and at any place. We hold only that so long as there is a greater number of homeless individuals in a jurisdiction than the number of available beds in shelters, the jurisdiction cannot prosecute homeless individuals for sitting, lying, and sleeping in public.”
The Court also expressly stated, “Naturally, our holding does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who chose not to use it…Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible. So, too, might an ordinance barring the obstruction of public rights of way or the erection of certain structures.”
Although the City of Boise sought further appeal to the U.S. Supreme Court, review was denied. Thus, the Boise decision became governing law in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Many large cities in those states, such as Seattle, Portland, Oakland, San Francisco, and Los Angeles, which have homeless populations far greater than Boise, were left grappling with the implications of the Boise case.
But note: nowhere in the Boise decision did the Ninth Circuit say a City must construct or provide housing to the homeless in order to enforce a no-camping ordinance. It consistently used the term shelter. The Ninth Circuit also expressly stated the enforcement prohibition only applies if there is no room in any shelter (not just a shelter that is close, convenient, or preferred by the person being made the offer of shelter). The Court also said that a local government could not criminally prosecute individuals who violated the no-camping ordinance, but it never barred other non-criminal remedies or abatement procedures. The Court also made clear that reasonable time and place restrictions could be enforced, and that local government retains the ability to regulate conduct that adversely impacts public health and safety.
Here in Los Angeles, instead of immediately revising LAMC 48.18 to create express time and place restrictions, allow for non-criminal enforcement, require acceptance of shelter when offered, or enforce laws that govern public health, safety and welfare, the City did…nothing. As the homelessness crisis peaked around the City, LAMC 48.18 was simply suspended, while a revised draft from Councilman Joe Buscaino languished (until recently) in the Homelessness and Poverty Committee.
In contrast, other cities, like Oakland, addressed the crisis by providing notice and offering shelter, efforts which have repeatedly withstood legal challenges. According to one federal trial court where Oakland prevailed, “Martin [v. City of Boise] does not establish a constitutional right to occupy public property indefinitely at Plaintiff’s option.” In another case against the City of Santa Clara, a federal trial court held that, where the City offered advance notice and shelter, it could shut down an encampment despite disruption and inconvenience to the encampment residents. And in San Clemente, another court ruled that a designated safe camping area on a City-owned lot was sufficient to comply with Boise.
We need new leadership at City Hall who will dive into these legal precedents and work to restore lawful and compassionate enforcement in Los Angeles. I will share my thoughts on the newly-adopted no-camping ordinance in a future update. In the meantime, keep doing your best, and I will do the same.
 Ada County has a total population of 435,211; the City of Boise has a total population of 240,380. For comparison and scale, the County of Los Angeles has a total population of 10 million; the City of Los Angeles has a total population of approximately 4 million. Estimates of the LA County homeless population range between somewhere between 60,000-80,000. There is just no comparison between the scale of the problem in Boise compared to Los Angeles.