Assistant city attorney cites differences between Eugene, Boise ordinances after federal appeals court says laws that prosecute the homeless for camping in public violate U.S. Constitution’s “cruel and unusual punishment” clause
A Eugene assistant city attorney said it’s “business as usual” in the wake of a federal appeals court ruling that local ordinances punishing homeless people for camping in public violate the U.S. Constitution’s prohibition against cruel and unusual punishment.
The attorney, Ben Miller, said there are key differences between Eugene’s ordinance, or law, that bans camping on sidewalks or parks and the city of Boise ordinance at the center of Tuesday’s opinion by a three-judge panel of the 9th U.S. Circuit Court of Appeals.
Eugene’s law, unlike Boise’s, does not impose criminal penalties on violators, and Eugene has more options than Boise for homeless people to shelter indoors, Miller said.
“The case has generated a lot of attention, but it’s kind of business of usual,” Miller said “We’ve sort of known that’s how the 9th Circuit was going to view this issue, and we’ve kind of thought we’re doing it right under those provisions already.”
But officials in neighboring Springfield, which has an anti-camping ordinance with similar wording to Eugene’s, said it’s reviewing the potential implications of the ruling.
“We’re aware of the case, and we’re looking at it currently,” city spokeswoman Amber Fossen said. “We do think it’s going to have an impact on us; to what extent, we’re still trying to determine.”
Springfield City Attorney Mary Bridget Smith said she plans to meet with police, public works department and municipal court officials next week to determine “if we need to change our practice because of this case.”
Defense attorneys, meanwhile, say the appeals court’s decision could work to strengthen their arguments in court.
“I think it is a potentially good thing” for homeless defendants, Eugene lawyer Joe Connelly said. As a public defender in Eugene’s municipal court, Connelly said he recently lost a case involving a client who had been arrested several times for sleeping outside in Eugene, and ultimately was found guilty of criminal trespass. The defendant, Connelly said, did not have any other housing options.
In that case, “we made the argument that not only does a person have to sleep, but (also) a person has to sleep in a relatively safe place,” Connelly said. “I would think (the 9th Circuit opinion) would have a strong influence on the decision-maker (in future cases), and I would think that the city would be thinking about it.”
The ruling from the federal appeals court’s stems from six people who challenged citations they received while homeless from police officers between 2007 and 2009 under two city of Boise laws. The first law makes it a misdemeanor to use “any of the streets, sidewalks, parks, or public places as a camping place at any time.”
The second law bars sleeping in any “building, structure, or public place” without permission. Neither Eugene nor Springfield have adopted ordinances that specifically outlaw outdoor sleeping.
The panel held that it’s “cruel and unusual” — and therefore a violation of the Eighth Amendment — to impose criminal penalties on homeless people for sleeping or lying outside on public property when they don’t have access to shelter. The panel cited a decision in an earlier, somewhat related case where the majority held “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.”
But the panel said its decision is a narrow one, noting it in no way is dictating to the city that it must provide sufficient shelter for homeless people or that anyone may sit, lie or sleep on streets at any time and at any place.
“[A]s long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter,” the panel said.
The ruling would apply to all areas covered by the 9th Circuit, which is based in San Francisco and includes Oregon and eight other western states. The city of Boise could ask the full 9th Circuit to review the panel’s decision, or appeal the ruling to the Supreme Court.
The panel’s reasoning is similar to what it put forth in a now-vacated decade-old case when the same circuit court ordered the city of Los Angeles to stop enforcement of a law allowing police officers to arrest people for sleeping on the street when there are no available shelter beds.
Miller noted two key differences between the laws adopted by Boise and Eugene.
Unlike Boise, Eugene does not punish a violation of the camping ban as a misdemeanor that can result in jail time, if convicted. A violation of the local camping ban is an infraction, carrying a maximum $200 fine.
In 2013, a Eugene municipal court judge concluded the city’s ordinance does not violate the Eighth Amendment following a trial. A homeless women had raised that constitutional argument as one of her defenses after a police officer cited her for camping on public property in west Eugene.
“Despite the Defendant’s lack of financial resources, the Court cannot conclude that a maximum fine of $200 is cruel and unusual punishment,” Judge Karen Stenard wrote.
The city of Springfield also does not arrest individuals for violating its illegal camping ordinance. But its maximum fine for a violation is significantly higher, up to $720.
Miller also noted Eugene provides more options than Boise to shelter the homeless, noting as examples the car camping and “rest stop” programs sanctioned by the city and managed by local social service agencies.
“We’ve got a lot of other available options besides just a couple of shelters for people to be able to get in and find legal ways of camping,” he said.
The ruling noted the city of Boise had three shelters run by private, nonprofit organizations that provide 354 beds and 92 overflow mats for homeless people.
Homeless advocates say the number of local unsheltered individuals far exceeds the available beds. The city and county have begun exploring the construction and operation of a public homeless shelter, and leaders are scheduled to receive a consultant’s report on ways to move forward with that project on Oct. 10.
The ruling noted there were 867 homeless individuals counted in 2016 in Ada County, Idaho, 125 of whom were out on the streets. In Lane County, there were 1,642 homeless people counted, including 1,135 whom were unsheltered, according to this year’s count.
Miller said he’s unaware of anyone challenging a fine based on the ruling.
“If it does (occur), we’ll deal with that in court, I guess,” he said. I haven’t heard one way or another.”
Reporter Jack Moran contributed to this report.