LaTonda Simmons, Oakland’s Assistant City Administrator, was on KQED radio the other day, on a program about homelessness in Oakland. I called in to make a comment, and they took my call.
I started by congratulating her and the City for all the good things they’re doing about homelessness. Then I asked why the Encampment Management Policy (EMP) didn’t go into effect last January 1, when it was supposed to. Ms. Simmons’ lengthy reply boiled down to “It’s complicated.” She cited the 2017 court case of Martin v. City of Boise as a main reason for Oakland not implementing the EMP.
Municipalities often cite Martin v. City of Boise to justify why they don’t enforce anti-encampment laws. The conventional wisdom is that Martin prevents a city from rousting tent dwellers if they, the city, cannot offer the person some kind of alternative housing. As Lexus Nexus puts it, “An [anti-encampment] ordinance violates the Eight Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them.” Most city officials, including Ms. Simmons, use Martin as their reason for continuing to allow encampments in places, such as public parks, even though those encampments violate local laws, as well as the EMP.
Boise, which tried to manage encampments, lost in the 9th U.S. Circuit Court. They appealed Martin to the United States Supreme Court. But SCOTUS refused to hear the case, leaving the 9th Circuit decision the law of the land…for now.
In public debate about encampments, Martin v. City of Boise is the ultimate trump card. Citing it always brings the conversation to a dead halt. The reasoning seems to be, “Well, the Supreme Court refused to hear it, so the 9th Circuit decision remains the law…and it says cities can’t shut down encampments no matter where they are, if there’s no shelter available. End of story.”
But is that what Martin v. City of Boise actually says?
The 9th Circuit judge who wrote the majority opinion was Marsha S. Berzon. She argued that the Eighth Amendment to the Constitution, which bars “cruel and unusual punishments,” prohibits a city like Boise from enforcing prohibitions on sleeping in public places. “We conclude,” Judge Berzon wrote, “that a municipality cannot criminalize such [camping] behavior consistently with the Eighth Amendment when no sleeping space is practically available in any shelter.”
Questions abound. Is mandating that people not be allowed to sleep in public spaces “criminalizing such behavior”? What sort of “sleeping space” must be made “practically available”? What is the definition of a “shelter”? Berzon’s vague language addresses none of these issues. For example, what if Oakland were to remove encampments from public parks and tell evicted campers they’re free to set up their tents in “low sensitivity” areas, as defined by the Encampment Management Policy?
What if the city provided essential services to homeless people in those low sensitivity areas? Would it violate Martin if there were no walls and roofs (i.e. “spaces”) but simply open lots (as is the case in parks)? What if the city erected temporary structures, with walls and roofs, that could hold hundreds of individual campers? Would that comply with Martin?
Martin’s very ambiguity suggests cities are not necessarily bound to abide by it, at least not until the U.S. Supreme Court issues a final, binding ruling. An analysis of Martin by the Harvard Law Review found that “[C]ities can clear homeless camps [and] arrest those who refuse to leave” despite the conventional wisdom that Martin says they can’t. The Review concluded: “Put simply, the [9th Circuit] panel left cities ample power to police and punish homeless people, as well as [to] regulate and restrict their access to public space.”
The Harvard Law Review thus asks a good question: “Why, then, does Martin matter?” Their answer is that Martin does not matter “on the [Constitutional] merits.” Where it does matter is in the realm of politics, or, as the Harvard Law Review put it, “the [Martin] litigation itself facilitated the inclusion of homeless people in the City’s political process.” Politics, most of it media-driven, forced the Boise City Council to “narrow the scope” of the city’s anti-camping ordinances, and restricted the Boise Police Department from enforcing those ordinances—and “All this happened without a court deciding whether…the ordinances [themselves] were constitutional.”
Isn’t it time to test the 9th Circuit’s temporary ruling? It may be asking too much of the City of Oakland to do it. But it’s obvious that Martin does not do what Ms. Simmons claims it does: constitutionally prohibit Oakland from implementing its Encampment Management Policy. Oakland may have neither the political will nor the money to contest Martin. But perhaps some other municipality does. Martin opponents would have a good case: Martin is not the last word, and it needs to be challenged.
Steve Heimoff