RMLUI / WP Legal Corner: Martin vs Boise - Homelessness in the Courts

By Elizabeth Garvin, Esq. AICP

This is an update to an article originally published in the American Planning Association’s Planning Magazine. That article provides the background and discussion of Martin v Boise. That article is included here and reprinted by permission of Planning Magazine.

Following up on the impacts of Martin v Boise

It has been just about a year since the United States Supreme Court declined to review the Martin decision, leaving the ruling in effect in the Ninth Circuit. In legal time, this is not very long for new case rulings incorporating the law created by Martin. Still, a few decisions have been issued which may give us a preview of both how communities may amend their camping bans and how the courts might respond.

Within the Ninth Circuit, two district courts have reached what appear to be differing conclusions about the distinction between sleeping and camping. In both cases, the community shifted the focus of their ban from sleeping to camping, most likely with the intent of complying with Martin as narrowly as possible. In Carlos-Kahalekomo v. County of Kauai (2020 WL 4455101, D. Hawai’i, August 2020), the court dismissed a Martin claim that a local ordinance requiring a camping permit for anyone “who camps, erects a tent or constructs any temporary sleeping quarters on any County public park during the hours of 5:00 p.m. to 10:00 a.m.” violates the Eighth Amendment. According to the court, the county code did not do the two things prohibited by Martin – criminalize either sleeping outside or any person’s homeless status. This case may not, however, be finished. Plaintiffs, the county’s homeless residents, filed the case “pro se,” or without assistance of an attorney. Pro se litigants are often offered the opportunity to fix issues in their legal documents, and in this case the court allowed the plaintiffs time to amend and refile their complaint to show facts supporting their claim that the camping ban violates the Eighth Amendment. In a contemporaneous case, the same court also ruled that it is acceptable for a county to limit the places where homeless residents are permitted to sleep, Gomes v. County of Kauai (2020 WL 5097835, D. Hawai’i, August 2020).

In comparison, an Oregon district court found the City of Grants Pass’ enforcement of two anti-camping ordinances did constitute an Eighth Amendment violation. Blake v. City of Grants Pass (2020 WL 4209227, D. Oregon, July 2020). Following the Martin decision, Grants Pass amended their anti-camping ordinance by replacing the word “sleeping” with “camping,” and left the regulations applicable to all public places, including parks, at all times. The distinction, according to the city, was that a person could sleep or rest in public parks, but could not engage in occupying a campsite. Campsite was defined as “any place where bedding, sleeping bad, or other material used for bedding purposes … is placed… for the purpose of maintaining a temporary place to live.” Blake at 6. The court found this to be the proverbial distinction without a difference. The court observed that the city might allow sleeping or resting, but appeared to interpret camping as sleeping with anything, including “a bundled-up item of clothing used as a pillow.” Blake at 6. The court held that “the Eighth Amendment also prohibits a City from punishing homeless people for from taking necessary minimal measures to keep themselves warm and dry while sleeping when there are no alternative forms of shelter available.” Id. The Blake court also walked through the city’s available shelter analysis and held that the city could not point to shelter options outside of the city, such as camping in the county, as alternative shelter availability.

Outside of the Ninth Circuit a few courts have considered how Martin might apply, were the holding ever to become applicable in their circuit. In Frank v. City of St. Louis, 485 F. Supp. 3d 1090 (E.D Missouri, 2020)(8th Cir.), the court refused to issue a temporary restraining order to stop the City of St. Louis from relocating the residents of a specific homeless encampment. The encampment was identified by the city as high risk for the spread of covid-19 and the city had expanded available shelter capacity and reserved spaces for the occupants of that encampment. According to the court, not only was there no evidence that the city was criminalizing homelessness anywhere, there was evidence that the residents were being relocated to a safer location. In Phillips v. Cincinnati, 2020 WL 4698800 (S.D. Ohio, 2020), the city sought to have the case dismissed in early proceedings, but the court held that the plaintiffs plead sufficient facts to maintain their challenge to Cincinnati’s homeless encampment policy. The Phillips decision includes a fact summary that reads fairly similarly to the Martin facts with respect to the availability of shelter space, so we will see whether the Sixth Circuit reaches the same conclusion regarding applicability of the Eighth Amendment. And finally, here in Denver, the Denver County Court ruled that the city’s camping ban was unconstitutional, but the decision was recently overruled on appeal. Colorado, Wyoming, Utah, and New Mexico are in the Tenth Circuit and are not governed by the Martin decision.

About the Author

Elizabeth Garvin is a land use lawyer and planner and the founding principal of Community ReCode in Denver, Colorado. She is a member of the RMLUI Regional Advisory Board who writes the RMLUI Legal Corner for The Wester Planner. This article is informational only and is not a legal opinion.

Outside of the Ninth Circuit a few courts have considered how Martin might apply, were the holding ever to become applicable in their circuit. In Frank v. City of St. Louis, 485 F. Supp. 3d 1090 (E.D Missouri, 2020)(8th Cir.), the court refused to issue a temporary restraining order to stop the City of St. Louis from relocating the residents of a specific homeless encampment. The encampment was identified by the city as high risk for the spread of covid-19 and the city had expanded available shelter capacity and reserved spaces for the occupants of that encampment. According to the court, not only was there no evidence that the city was criminalizing homelessness anywhere, there was evidence that the residents were being relocated to a safer location. In Phillips v. Cincinnati, 2020 WL 4698800 (S.D. Ohio, 2020), the city sought to have the case dismissed in early proceedings, but the court held that the plaintiffs plead sufficient facts to maintain their challenge to Cincinnati’s homeless encampment policy. The Phillips decision includes a fact summary that reads fairly similarly to the Martin facts with respect to the availability of shelter space, so we will see whether the Sixth Circuit reaches the same conclusion regarding applicability of the Eighth Amendment. And finally, here in Denver, the Denver County Court ruled that the city’s camping ban was unconstitutional, but the decision was recently overruled on appeal. Colorado, Wyoming, Utah, and New Mexico are in the Tenth Circuit and are not governed by the Martin decision.

About the Author

Elizabeth Garvin is a land use lawyer and planner and the founding principal of Community ReCode in Denver, Colorado. She is a member of the RMLUI Regional Advisory Board who writes the RMLUI Legal Corner for The Wester Planner. This article is informational only and is not a legal opinion.