Homeless people could lose the right to sleep on sidewalks if Western cities have their way

As California and other states in the West continue to wrestle with an explosion of homelessness, a growing number of local governments have set their sights on a court decision that has allowed people to legally bed down on sidewalks overnight.

On Wednesday, the city of Los Angeles will join L.A. County and dozens of other municipalities in submitting an amicus brief urging the U.S. Supreme Court to hear a challenge to Martin vs. City of Boise — a landmark lawsuit involving seven homeless people who were cited for camping on public property in Boise, Idaho.

If the court were to take up the case, which is far from certain, it could reverse a decision by the U.S. 9th Circuit Court of Appeals that has prevented cities and counties from sending law enforcement to enforce ordinances to shoo away homeless people or to clear their encampments.

The deadline to submit amicus — or friend-of-the-court — briefs is Wednesday.

In addition to L.A., others in California submitting briefs include Sacramento, San Diego, Fresno, Riverside and Orange counties, as well as a slew of cities, including Sacramento, Fullerton, Torrance and Newport Beach. Several states including Idaho, Texas and Alaska have as well. Their reasons for doing so vary.

“We’re saying that we agree with the central tenet of Boise that no one should be susceptible to punishment for sleeping on a sidewalk at night if there’s no alternative shelter at that point,” said Los Angeles City Atty. Mike Feuer. “But the rationale sweeps too broadly ... It makes the opinion unclear and, therefore, the opinion raises more issues than are resolved. And so it leaves jurisdictions like us without the certainty that we need.”

Last September, the U.S. 9th Circuit Court of Appeals ruled that criminally punishing homeless people solely for sleeping when there are not enough shelter beds or housing constituted cruel and unusual punishment and violated the 8th Amendment of the U.S. Constitution.

In July, attorneys Theodore B. Olson and Theane Evangelis, both with Gibson, Dunn & Crutcher, a firm with offices in L.A., announced that they planned to ask the Supreme Court to take up the case. In doing so, they cited the “urgent crisis” of homeless encampments.

The Boise ruling, which covers nine states, has led to a public health crisis, those who support challenging it say. In many cities, sidewalk encampments — and trash and filth that sometimes accompany them — have become a common sight as the homeless population has grown.

In L.A. County, for example, the number of homeless people climbed 12% in a year to just shy of 59,000, according to the latest point-in-time count. Within the city, the number soared to more than 36,000, a 16% increase.

Like Feuer, supporters of challenging the ruling say they worry that if it stands, they will be pulled into waves of costly court cases to hash out the details of how the ruling should be implemented. As it stands, there’s not a clear definition of how much shelter or housing is necessary to satisfy the federal court decision.

A man sleeps on the sidewalk in front of the Union Rescue Mission in the skid row neighborhood of Los Angeles.

(Francine Orr / Los Angeles Times )

“The 9th Circuit’s ill-defined ruling could derail efforts to implement short- and long-term housing and service solutions by fostering endless and costly litigation over the decision’s meaning,” said Teresa Stricker of Renne Public Law Group, who is the author of the amicus brief filed by the California State Assn. of Counties and signed by 33 cities and counties, including Los Angeles County. The city of L.A. is drafting its own brief.

Supporters of keeping the Boise decision say they have watched as homeless people rack up countless tickets and long arrest records simply for sleeping on sidewalks or the street. Eric Tars, an attorney with the National Law Center on Homelessness & Poverty, said that local governments that are asking the court to review the Boise ruling are making a political calculation rather than a sound decision on policy.

He pointed out that the Los Angeles Homeless Services Authority uses policies that comply with the ruling.

“For too long we’ve been able to unconstitutionally penalize one part of the population because we aren’t willing to fix our own affordable housing, healthcare and other problems,” said Tars, who is working on cases with Idaho Legal Aid Services and the L.A.-based firm Latham & Watkins. “The courts are now stepping in and saying, actually, no, we can’t do that anymore. It hasn’t been right from the beginning.”

Tars expects to learn whether the Supreme Court has decided to hear the case by late November or December. If so, he said arguments would probably occur in March or April, with a decision coming in June.

The decisions to file or join amicus briefs have set off political disputes across California, in which elected officials, in some cases, have condemned the actions of their own cities or counties.

Many politicians want to show they care about those living on the streets who often suffer after sanitation sweeps accompanied by police, but also be responsive to constituents frustrated by the mounds of trash, vermin and crime that have sometimes been linked to encampments.

Sacramento Mayor Darrell Steinberg, for example, opposes his own city asking the Supreme Court to take the case. He said that rather than focusing on how to enforce laws that prevent people from sleeping on the sidewalk, officials should focus on finding the most humane ways to help and house people.

As an example, he cited Modesto, which has made a concerted effort to address homelessness by building what it calls an Outdoor Emergency Shelter of 300 tents for about 400 people. One reason the Central Valley city in Stanislaus County focused so much on building it was because of the Boise ruling.

“Boise was the impetus for them — for both the city and the county — to work much more closely together and be more aggressive about creating capacity in beds for their unsheltered homeless population,” Steinberg said.

He admitted the ruling does have some ambiguities and may need some clarification, but said the “decision itself is inherently logical. If cities and counties are serious about getting people off the streets and build the capacity to be able to offer an alternative to people who are camping and the people refuse the offer, well then you can enforce.”

Until those beds are there, homeless people can’t be moved. In Los Angeles, this restriction, which has played out for years starting with earlier legal agreements, has been a flashpoint of anger for activists and some politicians who believe that city and county policies would otherwise demonize the homeless community.

Steinberg is the co-chair of Gov. Gavin Newsom’s new statewide task force on homelessness along with L.A. County Supervisor Mark Ridley-Thomas.

Last week, Ridley-Thomas cast the deciding vote to have the county sign onto an amicus brief asking the Supreme Court to hear the Boise case on behalf of the L.A. County Board of Supervisors.

The debate drew angry testimony from dozens of advocates for unhoused people.

“Boise is intended to provide a reasonable level of constitutional protection to those who have no other choice but to sleep outside,” Chris Homandberg, a volunteer with KTown for All and staff attorney at Public Counsel, told the Board of Supervisors. “This motion supports that it’s OK to remove a homeless person from public space.”

Through a spokesman, Los Angeles Mayor Eric Garcetti declined to give an opinion about the amicus brief, which was Feuer’s decision to file. Members of the City Council were split.

But the city attorney’s move came as council members furiously debated a proposed ban on sidewalk sleeping near locations throughout the city, including schools, parks and homeless shelters. That debate will probably be shaped by the Boise ruling and the success of any legal challenge to overturn or clarify it. Feuer has said he supports this proposed ban.

Councilman Mike Bonin, who opposes the proposed sidewalk sleeping ban and a review of the Boise case by the Supreme Court, said it was the wrong message for L.A. to be sending by opposing the ruling as it stands.

“I think doing so is the wrong approach, and both distracting and undermining our efforts to actually address homelessness,” he said.

City Councilman David Ryu voiced similar concerns.

Several other members including Councilman Mitch O’Farrell, who chairs the city’s Homelessness and Poverty Committee and initiated discussions about new restrictions on sidewalk sleeping, declined to offer an opinion on the amicus brief.

Others, including Councilman Joe Buscaino, supported filing it. Buscaino’s spokesman Branimir Kvartuc said the councilman felt that his district had shown a level of urgency to build shelters and housing. Still, Kvartuc said, it’s important to be able to move people who are living on sidewalks.

“People who have nowhere to go must be allowed to have the right to live there,” Kvartuc said. “But we think we can have a better process for doing this.”