Jus­tices’ mes­sage to cities: Build more hous­ing

High court’s re­jec­tion of anti-camp­ing case could spur ini­tia­tives to bring the home­less in­doors, some say.

Los Angeles Times - - FRONT PAGE - By Ben­jamin Oreskes

For Los An­ge­les and dozens of other cities across the West, all strug­gling to deal with a grow­ing num­ber of peo­ple liv­ing on the streets, Mon­day made clear that the only so­lu­tions to home­less­ness are more hous­ing and more ser­vices.

The U.S. Supreme Court de­cided against hear­ing an ap­peal of the land­mark case City of Boise vs. Martin, let­ting stand a rul­ing that amounts to a broad curb on po­lice pow­ers in Cal­i­for­nia and eight other states to stop peo­ple from sleep­ing on public prop­erty if no other shel­ter is avail­able.

In do­ing so, the jus­tices took yet an­other tool out of the mu­nic­i­pal tool kit for pre­vent­ing peo­ple from build­ing sprawl­ing en­camp­ments that in­creas­ingly clog their side­walks and streets.

Lo­cal gov­ern­ments had hoped the high­est court in the land would clar­ify how to com­ply with the Boise rul­ing or carve out more au­thor­ity for po­lice to clear en­camp­ments. In­stead, home­less ad­vo­cates cel­e­brated the jus­tices’ de­ci­sion as the death knell for lo­cal an­ti­camp­ing laws that they say crim­i­nal­ize home­less­ness.

“I think a lot of ju­ris­dic­tions were hop­ing that the Supreme Court would en­able a much greater level of en­force­ment ac­tiv­ity around the un­shel­tered home­less, and that won’t be the case,” said Sacra­mento Mayor Darrell Stein­berg, who along with L.A. County Su­per­vi­sor Mark Ri­d­ley-Thomas is cochair of the gov­er­nor’s task force on home­less­ness.

The re­sult, some of­fi­cials and home­less ad­vo­cates say,

is likely to be an up­swing of new­found po­lit­i­cal will to build more per­ma­nent sup­port­ive hous­ing and tem­po­rary shel­ters to get peo­ple off the streets.

In the past, such ef­forts have been slow through­out much of Cal­i­for­nia and of­ten have been met with re­sis­tance from lo­cal gov­ern­ment of­fi­cials and neigh­bor­hood groups. But, for now, it is the only way.

“Our hope is that com­mu­ni­ties won’t be nick­e­land-dim­ing this de­ci­sion and fig­ur­ing out the bare min­i­mum so they can be legally com­pli­ant,” said Eric Tars, an at­tor­ney with the Na­tional Law Cen­ter on Home­less­ness & Poverty, who worked on the ini­tial Boise case and rep­re­sented sev­eral of the plain­tiffs in­volved in the chal­lenge. “We hope they take this op­por­tu­nity to al­ter a com­pletely un­suc­cess­ful way of deal­ing with home­less­ness.”

Los An­ge­les City Atty. Mike Feuer said that get­ting peo­ple off the street is the pri­or­ity. Still, he be­lieves that, un­til there is enough hous­ing, there have to be some lim­its about where peo­ple can sleep.

By de­clin­ing to take the case on Mon­day, the high court let stand a 2018 rul­ing from the U.S. 9th Cir­cuit Court of Ap­peals, which found that it is un­con­sti­tu­tional to pros­e­cute peo­ple for sleep­ing on public prop­erty if enough shel­ter or hous­ing isn’t avail­able as an al­ter­na­tive. Po­lice can still in­ter­vene when there is crim­i­nal ac­tiv­ity, how­ever, such as drug use.

Dozens of cities and coun­ties across the West, in­clud­ing Los An­ge­les, had urged the Supreme Court to hear an ap­peal of the Boise rul­ing. Many ar­gued that the ra­tio­nale for its de­ci­sion was far too broad, and lo­cal gov­ern­ments hadn’t been given enough di­rec­tion about how much hous­ing or shel­ter they needed to pro­vide to sat­isfy it.

Feuer, for ex­am­ple, has been sup­port­ive of a plan pro­hibit­ing en­camp­ments around shel­ters — some­thing he pre­dicted will prob­a­bly face court chal­lenges as a re­sult of the high court leav­ing the Boise rul­ing stand­ing.

“I would have pre­ferred a clear stan­dard by which to guide our fu­ture ac­tions,” Feuer said. “In the ab­sence of that, if the city puts in place the rule I want, it could well be that there’s lit­i­ga­tion around it and that just dis­si­pates re­sources we should be pour­ing into fix­ing the prob­lem.”

Be­yond that, Mon­day’s de­ci­sion prob­a­bly will not change the le­gal land­scape much in the city of Los An­ge­les, where thou­sands of units of per­ma­nent sup­port­ive hous­ing are un­der con­struc­tion and a pre­vi­ously ne­go­ti­ated le­gal set­tle­ment bar­ring po­lice from clear­ing side­walk en­camp­ments at night is in place.

Some cities have al­ready changed their or­di­nances to com­ply with the Boise rul­ing, though, not count­ing on a suc­cess­ful ap­peal to the Supreme Court.

For ex­am­ple, the city of No­vato in the San Fran­cisco Bay Area amended its an­ti­camp­ing or­di­nance. Also, a re­cently passed or­di­nance in Las Ve­gas that makes it il­le­gal for home­less peo­ple to sleep on down­town streets will be en­forced only when beds are avail­able at shel­ters, a city spokesman said Mon­day. Ne­vada is cov­ered by the 9th Cir­cuit Court.

Or­ange County has been at the cen­ter of sev­eral le­gal fights over home­less peo­ple. The Boise rul­ing has been cru­cial, said Brooke Weitz­man, an at­tor­ney with the Santa Ana-based Elder Law and Dis­abil­ity Rights Cen­ter who has worked on sev­eral of the cases.

In the com­ing months, she said, it will be im­por­tant to ed­u­cate cities on how best to help their home­less pop­u­la­tions and en­sure enough money goes to­ward hous­ing and shel­ters.

“Now their lawyers are go­ing to be say­ing to them, ‘Look, the thing isn’t get­ting re­versed,’ ” Weitz­man said of the Boise rul­ing. “‘This is the le­gal frame­work we’re work­ing in. It does vi­o­late the Con­sti­tu­tion to crim­i­nal­ize un­avoid­able be­hav­iors like eat­ing and sleep­ing out­side. So what do you and the city want to do about it?’ And that will hope­fully help the city to think about what is the best way to han­dle it. And not just how do we stop break­ing the law, but how do we ac­tu­ally solve this prob­lem?”

Out­go­ing Boise Mayor David Bi­eter called the Supreme Court’s de­ci­sion to let the lower court’s rul­ing stand “disappoint­ing.”

“We be­lieve that the 9th Cir­cuit’s most re­cent de­ci­sion in this case leaves the city’s fun­da­men­tal abil­ity to pro­tect public health and safety on its own streets very un­cer­tain,” he said in a writ­ten state­ment. “With­out fur­ther clar­i­fi­ca­tion by the courts, our most vul­ner­a­ble res­i­dents — the very peo­ple this suit pur­ports to be pro­tect­ing — would be vic­tim­ized by the con­di­tions in camps that could crop up.”

Home­less­ness was a cen­tral is­sue in Boise’s re­cent may­oral elec­tion, which un­seated Bi­eter af­ter 16 years in of­fice. He had pushed for the Supreme Court to re­view the Boise rul­ing. His op­po­nent, City Coun­cil Pres­i­dent Lau­ren McLean, ar­gued that she was against the crim­i­nal­iza­tion of peo­ple who are home­less. McLean won a Dec. 3 runoff with 65% of the vote.

That Boise, a city far smaller than its coastal coun­ter­parts of Los An­ge­les and San Fran­cisco, be­came the touch­stone for home­less­ness was a bit of a sur­prise. The capital of Idaho has 1,000 to 2,000 home­less peo­ple, de­pend­ing upon the source. In com­par­i­son, there are close to 59,000 home­less peo­ple in Los An­ge­les County.

Theane Evan­ge­lis, lead coun­sel for the city of Boise, said in a state­ment to The Times that the city is eval­u­at­ing its next step as the case re­turns to the dis­trict court for fur­ther pro­ceed­ings. “States and coun­ties across the 9th Cir­cuit con­tinue to work hard to ad­dress the com­plex prob­lem of home­less­ness and, as an over­whelm­ing num­ber of am­i­cus briefs sup­port­ing the court’s re­view also ar­gued, the 9th Cir­cuit’s de­ci­sion ul­ti­mately harms the very peo­ple it pur­ports to pro­tect,” Evan­ge­lis said.

Stein­berg, who op­posed his own city’s push to have the Supreme Court hear the Boise case, has been craft­ing a plan with Ri­d­ley-Thomas for a pos­si­ble statewide bal­lot mea­sure to cre­ate a le­gal “right to shel­ter” or “right to hous­ing.”

Cities and coun­ties would be re­quired to pro­vide enough shel­ter beds to ac­com­mo­date ev­ery home­less per­son liv­ing out­doors — a goal that has, so far, proved elu­sive in Cal­i­for­nia and most West­ern states.

“There’s only one al­ter­na­tive left and that’s to ac­tu­ally bring peo­ple in­doors with greater ur­gency,” Stein­berg said. “And the only way that is go­ing to hap­pen, in my strong opin­ion, is if we man­date of our­selves at ev­ery level of gov­ern­ment a le­gal obli­ga­tion to do so.”

‘Our hope is that com­mu­ni­ties won’t be nick­e­land-dim­ing this de­ci­sion and fig­ur­ing out the bare min­i­mum so they can be legally com­pli­ant.’ — Eric Tars, Na­tional Law Cen­ter on Home­less­ness & Poverty

Robert Gau­thier Los An­ge­les Times

CITY ATTY. Mike Feuer says that get­ting peo­ple off the street is the pri­or­ity, but that un­til there is enough hous­ing, there should be lim­its on where peo­ple can sleep. Above, sup­port­ive hous­ing be­ing built in L.A.

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