COURTIING HOMELESSNESS

Boise, Idaho asks the Supreme Court to reverse rulings that shackle its attempts to clear city streets

By Steven Malanga

City Journal
July 8, 2019

Cities across America increasingly grapple with people living on their streets, and court rulings have made it hard to enforce laws against public camping. A series of decisions by the liberal Ninth Circuit Court of Appeals, for instance, determined that clearing homeless encampments is an unconstitutional form of punishment. Now Boise, Idaho, as part of a ten-year legal fight, is appealing to the Supreme Court to overturn a ruling by the Ninth Circuit that effectively bars the city from cleaning up camp sites on public property. How the case turns out may determine whether cities have powers to police their streets amid a sharp rise in public camping and sleeping.

At the heart of the Ninth Circuit's ruling is the liberal thesis that homelessness is an economic problem driven by high housing costs. Several homeless people sued Boise in 2009, alleging that the city did not have the right to remove them from the streets when they had no other housing options. A lower court ruled in the city's favor, but the Ninth Circuit reversed that decision and held that the city was "criminalizing" homelessness "on the false premise they [the homeless] had a choice in the matter." The court essentially accepted the argument that enforcement actions against the homeless plaintiffs constitute cruel and unusual punishment, in violation of the Eighth Amendment. Homeless advocates also argued that police actions give the homeless arrest records, making it hard for them to find jobs and housing.

As is too often the case, the Ninth Circuit's ruling conflicts with reality. Homelessness is far more than an economic problem. An estimated 40 percent to 50 percent of the street homeless are addicted to drugs or alcohol, and those proportions run even higher in some cities with acute homeless problems. In some cases, the homeless refuse to accept placement in shelters even when space is available because of restrictions on drug and alcohol use, curfews, or other rules. In other cases, street sleepers have chosen to live off the grid, preferringthis to conventional living. And a substantial number of the street homeless have serious untreated mental illness. Prohibiting cities from intervening makes it difficult for officials to get these people into the legal system, where they might benefit from intervention and rehabilitation programs.

The Ninth Circuit's Boise ruling and a previous case involving Los Angeles have had a chilling effect on municipal attempts to curb street encampments, creating what a recent report describes as a "sweeping and potentially open-ended curb on police powers in nine Western states." That's one reason Boise appealed to the Supreme Court after the Ninth Circuit refused an opportunity for the entire district court to rehear the case. In part, the city was bolstered by Judge Milan Smith, Jr.'s minority opinion that the court's original ruling did not comport with previous precedents and that it would produce ruinous burdens on municipalities, forcing them either to tolerate growing homeless encampments or to make extraordinary-and ever-growing-investments in homeless services. The Supreme Court will decide in the fall whether to hear the Boise case.

While a favorable ruling would bolster the efforts of Boise and other cities trying to address the problem, it wouldn't change anything in cities where the political establishment is aligned with the Ninth Circuit on homelessness issues. Cities like Seattle, Portland, and San Francisco have been decriminalizing many of the activities associated with the homeless, including drug selling and use, as well as public urination and disorderly conduct. Portland, for instance, has even set up drug-friendly homeless encampments. These places have become magnets for homeless people, attracting those who want to live a street life unencumbered by enforcement. Change there will only come through the political process.

Still, the Boise case holds out hope of bringing some rationality back to efforts to confront the growing urban problem of street living.