A row of tents line South Main Street as homeless encamp on a sidewalk in the Pioneer Square neighborhood of downtown Seattle.
In a decision that homeless-rights advocates said could have ripple effects up and down the West Coast, a federal appeals court ruled this week that cities cannot prosecute people for sleeping outside if they have no other reasonable place to be.
But the city of Seattle will continue to enforce laws that prohibit people from camping or sleeping outdoors under certain circumstances. City officials say that because Seattle does not outright ban these activities, Seattle is not affected by the court’s decision.
Regardless, homeless-rights advocates called the ruling a landmark one. And it could have consequences for other cities in the region with limited shelter beds and strict ordinances on living in public.
“I think we are going to see more cases like this,” said Ann LoGerfo, a directing attorney at Columbia Legal Services in Seattle. “This is a first step in informing cities that they really need to look to essential human rights embodied in the Constitution when crafting laws or enforcing laws involving those who are living without shelter.”
Tuesday’s decision by a 9th U.S. Circuit Court of Appeals three-judge panel stems from a 2009 case in which six homeless people sued the city of Boise, Idaho, because of a local ordinance that prohibited sleeping in public areas. The three homeless shelters in the city had a limited number of beds, sometimes restricted who could use them and, in some cases, required religious participation.
The court found that as long as there are more homeless people in a city than available shelter beds, officials cannot prosecute those individuals for essentially living in public. To do so would violate the Eighth Amendment’s prohibition on cruel and unusual punishment, the court said.
However, Seattle City Attorney Pete Holmes said the specifics of the decision do not appear to affect Seattle, based on his preliminary review.
“Unlike Boise, Seattle has no blanket citywide policy that criminalizes sleeping outside, therefore we don’t expect that this decision will affect the way the City is able to respond to people living outdoors,” Holmes said in a statement.
Seattle prohibits people from sitting or lying down on a public sidewalk between 7 a.m. and 9 p.m., mostly downtown and in areas designated as neighborhood commercial zones. Camping is banned in public parks, with a few exceptions.
Lisa Daugaard, director of Seattle’s Public Defender Assocation, agreed with Holmes’ assessment of the city’s sit-lie law, because it still leaves people places where they can go.
She does question whether the camping ordinance might be more open to challenge, because it is closer to an outright ban.
The ruling makes it clear that “there has to be space where people can go,” Daugaard said. But, she said, it won’t amount to an overhaul of existing practice in Seattle.
“People shouldn’t feel like under this case we’ve lost all control to prevent people from living in locations that are really not viable for habitation,” Daugaard said.
While the court itself called the ruling a narrow one, legal advocates for people who are homeless say the potential ramifications are huge, particularly in cities with blanket prohibitions on this kind of behavior.
“This case will have a significant impact on the almost 80 percent of cities in Washington” that prohibit lying or sleeping in public spaces, LoGerfo said.
A 2015 report from the Seattle University School of Law found that cities across Washington had adopted more ordinances that criminalized behaviors related to homelessness since the year 2000.
That same report found that Auburn, in southern King County, had the highest number of criminalization offenses in the entire state. Auburn city attorney Steve Gross said this week that the city is reviewing the decision.
The lawsuit notes that these kinds of laws “might well be constitutionally permissible.” Whether those laws don’t violate the Eighth Amendment, the ruling says, will depend “on whether it punishes a person for lacking the means” to essentially live as any human would, but outside.
To Seattle University professor Sara Rankin, that caveat is crucial.
Seattle’s laws may not be unconstitutional on their face. But the city, Rankin said, would be “foolhardy” to think that ordinances lawful in certain instances “would always be lawful under every set of facts.”
Holmes’ office has issued a relatively small number of infractions to people camping in public parks, citing only seven people this past year and none so far in 2018, through the end of July.
In 2015, his office cited nearly 1,000 people for violating Seattle’s sit-lie ordinance, though that number has dropped steadily since then. This year so far, 186 people have been cited.
LoGerfo, with Columbia Legal Services, said Seattle is in an interesting position because the city doesn’t ban unsanctioned homeless camps but instead set up rules to determine when they can be removed. The city must offer people shelter before they can remove a camp, though the city can circumvent that rule — and has been increasingly doing so, since June — if a site is considered an immediate danger.
The city’s policy of closing camps rather than issuing them citations signals “a recognition (by the city) you can’t simply put people in jail,” LoGerfo said, but moving people around “isn’t helpful either.”
The city of Seattle and Washington State Department of Transportation are co-defendants in a lawsuit, filed last year, that alleged they violate homeless people’s rights when they seize and destroy their property during encampment cleanups.
