Just over a year ago, as western cities were struggling to respond to an increase in homeless people camping in public places, the 9th U.S. Circuit Court of Appeals released an opinion ruling that cities could not legally prosecute people simply for sitting or lying down on sidewalks or in other public places when there are no shelter beds available. To do so, the court ruled in Martin v. Boise, would run afoul of the U.S. Constitution’s Eighth Amendment ban on cruel and unusual punishment. The problem wasn’t that the fines cities like Boise were imposing were so exorbitant, the court said, but that the activity was so commonplace, and so expected, that criminalizing it at all was a form of cruel and unusual punishment.
As Judge Marsha Berzon wrote in the majority opinion, “As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.” As Next City wrote at the time, the ruling applied to cities in nine states. But in the last year, the housing crisis in many of those states has only deepened, and the numbers of people experiencing homelessness in many cities has grown.
In Sacramento, the latest point-in-time survey recorded the highest-ever number of people living without permanent shelter, according to the Sacramento Bee — a 19 percent uptick since the previous count two years earlier. And while the city is trying to quickly build new shelters, it is also lending its name to an appeal of the 9th Circuit decision filed by the city of Boise last month. When announcing the appeal, Boise Mayor Dave Bieter said cities “must have all the tools available to respond to the public health and safety dilemmas created by public encampments.”
As the Bee reported, the city and county of Sacramento are planning to file an amicus brief in an appeal of the Boise decision to the U.S. Supreme Court. The decision by the Sacramento city attorney has created a small controversy in the city. The Sacramento Bee editorial board wrote that the attorney’s decision to file a brief in favor of the appeal raised important questions about the city’s approach to homelessness: “Do they want to start issuing citations again? Do they want greater leeway in arresting people who have nowhere else to go?” The editorial board called for the city to remove its name from the amicus brief.
City Attorney Susana Alcala Wood did not respond to messages from Next City requesting an interview, but a spokesman sent a statement from Alcala Wood:
“Navigating the effects of the Boise ruling has been complicated for many California cities, including Sacramento, which has been a leader in creating and implementing strategies that connect people experiencing homelessness with shelters and services. By participating in the amicus brief, the City of Sacramento is not looking to take sides or advance the interests of any other party. The City is simply looking for more clarity as it works to help an extremely vulnerable population in our community while simultaneously balancing the interests of all residents.”
The appeal — and the city and county’s role in it — has become a hot topic of conversation among people who work on homelessness issues in Sacramento, says Lisa Bates, CEO of Sacramento Steps Forward, a nonprofit group that manages HUD homelessness funds and conducts the point-in-time survey in Sacramento. Many people were surprised that the city and county decided to support the appeal, Bates says.
According to Bates, more elderly people are experiencing homelessness than in years prior. And as the sheer number of unsheltered people has grown, the problem has become more visible. The Boise decision has prevented law enforcement from arresting or citing people simply for sitting or camping outside, and Bates says that police have generally followed that ruling.
“My sense is that they’ve been respectful of the Boise decision and trying to work with folks within that context,” Bates says. “Certainly, Sacramento City is trying to increase its shelter capacity and trying to tie it to rehousing services.”
As Homeless Services Director for the City of Sacramento, Emily Halcon is in charge of coordinating the city’s response to homelessness, primarily by helping to plan for new shelter beds and providing services for people who are already living in shelters. The city has been directing funds to deal with homelessness issues for several years, Halcon says. Ultimately the city is trying to provide enough housing for everyone. In the meantime, it’s trying to make shelters a “resource-rich” environment where people can find services that help them eventually transition out of homelessness, Halcon says.
“The most important part of the city’s approach is transforming what shelters are,” Halcon says. “We’re not just building shelters to get people out of the elements.”
Other cities are grappling with the Boise ruling as well, as the Seattle Times recently reported. The ruling only says that sleeping outside can’t be criminalized when there are not enough shelter beds to serve everyone who needs one. So many cities remain focused on building enough housing and shelters to make the decision moot. Halcon says that’s her priority, no matter what the city attorney does or how the appeal proceeds.
“Obviously I work very closely with [the police], but their role is very different,” Halcon says. “My goal is to make it so that they’re not having to enforce camping ordinances … . I’m not sure how much [the appeal] would change the direction of what we’re doing, because regardless of the criminality or non-criminality, everybody deserves a shelter.”
This article is part of Backyard, a newsletter exploring scalable solutions to make housing fairer, more affordable and more environmentally sustainable. Subscribe to our thrice-weekly Backyard newsletter.
Jared Brey is Next City's housing correspondent, based in Philadelphia. He is a former staff writer at Philadelphia magazine and PlanPhilly, and his work has appeared in Columbia Journalism Review, Landscape Architecture Magazine, U.S. News & World Report, Philadelphia Weekly, and other publications.