Friday, October 9, 2020
As many of our regular readers know, I grew up in Phoenix, Arizona. One of the developments I have followed over the years is the number of homeless residents of Phoenix. I'm a cyclist in my spare time and one of my regular downtown bike routes in Phoenix takes me past an ever-growing encampment. In addition, a large park near my parents' home now serves as a daytime gathering spot for many. In the scorching heat of the summer, and the desert cold of the winter, there are more and more people without adequate shelter. The New York Times recently pointed out that in contrast to historical statistics suggesting that nationwide, "elderly" persons make up a small percentage of the homeless population, in the last few years we are seeing a surge among older adults. See Elderly and Homeless: America's Next Housing Crisis, a feature article published on September 30, 2020, that, in part, profiles the issues in Arizona.
So, it was with great interest that I read a report on a federal appellate decision, limiting the ability of municipalities to use criminal laws to penalize individuals, in an attempt to discourage or remove people who are living on the streets. The report is by one of Dickinson Law's third year law students, Jacqueline Stryker. She writes in part:
"The city of Boise, Idaho attempted to fight homelessness in the community through a combination of its public camping ordinance and its disorderly conduct ordinance. In Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), the 9th Circuit Court of Appeals considered whether the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from criminally prosecuting people for sleeping outside on public property when those people have no shelter. The Court concluded that it does. A municipality cannot criminalize people who sleep outside when no sleeping space is practically available in any shelter. "
Ms. Stryker observes in her conclusion, "Whether the decision of the Ninth Circuit in Martin will gain traction a local governments grapple with the growing problem of homelessness and homeless encampments is yet to be seen."
For more of Ms. Stryker's timely, concise case analysis, see: Municipal Efforts to Combat Homelessness.