The Constitutionality of Homeless Encampments

From, and only as editor, by Steve Martinot
Thursday September 06, 2018 - 04:23:00 PM

The issue of homeless encampments keeps coming up. The reason is the insistence on the part of the police of Berkeley on raiding encampments, dispelling the groupings of the homeless, disrupting their comunities, and thereby forcing them to move, to resettle themselves, to figure out new procedures for survival.

During the Obama administration, the Dept. Of Justice formulated an argument for how and why and under what circumstances this practice of raiding and disbanding homeless encampments is unconstitutional, in violation of the 8th Amendment. The 8th Amendment prohibits “cruel and unusual punishment.” It therefore limits what can be punished and what not. In particular, certain conduct can be punished, but mere status cannot be under certain circumstances (such as illness, poverty, unemplyment, etc.). To the extent homelessness is a (involuntary) status, camping cannot be punished unless a city provides an alternative, such as shelter.

What I include below is an edited (by me) version of a writ introduced into a trial in Boise, Idaho, in 2015, on this issue. It was a case in which the homeless of Boise had filed suit against the city, and the US government had filed an amicus brief in favor of the plaintiffs (the homeless). I have redacted the footnotes and references in the interest of length, and to make the text more palable to those who would have trouble wading through all the legal citations and rhetoric. I tried to only leave the meat of the government’s argument there. For those who have no trouble with legalese, and would like to look at the precedents and citations, the name of the case is Bell vs. City of Boise, its trial number is 1:09-cv-00540-REB, held on 08/06/15. And the full text of the government’s writ can be found here – https://www.justice.gov/opa/file/643766/download 


Civil Action No. 1:09-cv-540-REB 

Bell vs. Boise, Idaho 


On any given night in the United States, half a million people are likely to be experiencing homelessness. …These individuals must find space in a public shelter or sleep on the street. For many homeless people, finding a safe and legal place to sleep can be difficult or even impossible. In many cities, shelters are unable to accommodate all who are homeless. 

In [the case before us], Plaintiffs are homeless individuals who were convicted of violating certain city ordinances that prohibit camping and sleeping in public outdoor places.7 They claim that the City of Boise and the Boise Police Department’s (“BPD”) enforcement of these ordinances against homeless individuals violates their constitutional rights because there is inadequate shelter space available in Boise to accommodate the city’s homeless population. Plaintiffs argue that criminalizing public sleeping in a city without adequate shelter space constitutes criminalizing homelessness itself, in violation of the Eighth Amendment. 

The parties disagree about the appropriate framework for analyzing Plaintiffs’ claims. Plaintiffs encourage the court to follow Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006) (vacated after settlement, 505 F.3d 1006 (9th Cir. 2007)), which held that enforcement of anti-camping ordinances may violate the Eighth Amendment on nights where there is inadequate shelter space available for all of a city’s homeless individuals. Defendants, on the other hand, assert that Plaintiffs’ reliance on Jones is “heavily misplaced, factually unsupported, and immaterial to this case.” 

Because the summary judgment briefing in this case makes clear that there is a significant dispute between the parties on the applicability of Jones and conflicting lower court case law in this area, the United States files this Statement of Interest to make clear that the Jones framework is the appropriate legal framework for analyzing Plaintiffs’ Eighth Amendment claims. Under the Jones framework, the Court should consider whether conforming one’s conduct to the ordinance is possible for people who are homeless. 


The United States has a broad interest in ensuring that justice is applied fairly, regardless of wealth or status. In 2010, Attorney General Eric Holder launched the Office for Access to Justice (“ATJ”) at the Department of Justice to address the access-to-justice crisis in the criminal and civil justice systems. 

The United States also has an interest in breaking the cycle of poverty and criminalization. Numerous federal initiatives are tasked with reducing the criminalization of homelessness and promoting alternatives to incarceration that are more cost-effective, efficient, and fair. 


The “Cruel and Unusual Punishments” Clause of the Eighth Amendment “imposes substantive limits on what can be made criminal and punished as such.” … The Supreme Court has held that laws that criminalize an individual’s status, rather than specific conduct, are unconstitutional. Robinson v. California, 370 U.S. 660 (1962). 

[In a precedent case in Texas (1968), one judge] did not rest his decision on the status-versus-conduct distinction … but instead … considered the voluntariness, or volitional nature, of the conduct in question. Under this analysis, if sufficient evidence is presented showing that the prohibited conduct was involuntary due to one’s condition, criminalization of that conduct would be impermissible under the Eighth Amendment. 

For the present case [with respect to the homeless] he explained that, “[f]or all practical purposes the public streets may be home for these unfortunates, … because … they have no place else to go. 

[There is] a division among courts on how to analyze claims regarding enforcement of anti-camping ordinances against homeless individuals. … Some courts have adopted the plurality’s strict interpretation, … that the Eighth Amendment limits only the criminalization of status, not of conduct. … Others have considered the voluntariness of the conduct, and whether the conduct is inextricably linked to one’s status, such that punishing the conduct is indistinguishable from punishing the status.  

[In precedent cases], the United States took the position … that criminalizing sleeping in public when no shelter is available violates the Eighth Amendment by criminalizing status. Consistent with the position taken in its previous filings, the United States now urges this Court to adopt the reasoning of Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006). Although the Ninth Circuit ultimately vacated its opinion in Jones—pursuant to a settlement agreement between the parties, 505 F.3d 1006 (9th Cir. 2007), not for any substantive reason— its logic remains instructive and persuasive. 

The Jones court considered the enforcement of a Los Angeles ordinance prohibiting sitting, lying, or sleeping in public. There, like here (Bell vs. Boise), the court was asked to consider a statute that, on its face, criminalized conduct rather than status. Importantly, the plaintiffs in Jones presented evidence suggesting that there was an inadequate number of shelter beds available for homeless individuals, so many individuals had no choice but to sleep in public in violation of the city’s ordinance. 

The Jones court [in LA] found enforcement of the ordinance to be unconstitutional as applied to the plaintiffs because of inadequate shelter space. The court based its decision on its conclusion that, “[w]hether sitting, lying, and sleeping are defined as acts or conditions, they are universal and unavoidable consequences of being human.” Because sleeping is unavoidable, the court then considered whether the plaintiffs had a choice to sleep somewhere other than in public, concluding that they did not: “for homeless individuals in [Los Angeles’] Skid Row who have no access to private spaces, these acts can only be done in public.” Id. at 1136. As a result, the court found that sleeping in public is “involuntary and inseparable from” an individual’s status or condition of being homeless when no shelter space is available. The court concluded that, “by criminalizing sitting, lying, and sleeping, the City [of Los Angeles] is in fact criminalizing [Plaintiffs’] status.” 

Defendants {Boise}assert that reliance on Jones would be “misplaced, factually unsupported, and immaterial to this case.” [They] rely on a conduct-versus-status distinction. Defendants’ position is unpersuasive because the Eighth Amendment analysis is not limited to the plain language of the statute in question. Rather, the practical implications of enforcing the statute’s language are equally important. Those implications are clear where there is insufficient shelter space to accommodate the homeless population: the conduct of sleeping in a public place is indistinguishable from the status of homelessness. 

It should be uncontroversial that punishing conduct that is a “universal and unavoidable consequence[] of being human” (having to sleep) violates the Eighth Amendment. It is impossible for individuals to avoid “sitting, lying, and sleeping for days, weeks, or months at a time . . . as if human beings could remain in perpetual motion.” Once an individual becomes homeless, by virtue of this status certain life necessities (such as sleeping) that would otherwise be performed in private must now be performed in public. Therefore, sleeping in public is precisely the type of “universal and unavoidable” conduct that is necessary for human survival for homeless individuals who lack access to shelter space. 

In this way, the Boise anti-camping and disorderly conduct ordinances are akin to the ordinance at issue in [a precedent case], at least on nights when homeless individuals are—for whatever non-volitional reason(s)—unable to secure shelter space. When adequate shelter space exists, individuals have a choice about whether or not to sleep in public. However, when adequate shelter space does not exist, there is no meaningful distinction between the status of being homeless and the conduct of sleeping in public. If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless. 

[An objection has been raised to this approach, namely that it] implicates the knotty concerns with the Cruel and Unusual Punishments Clause becoming “the ultimate arbiter of the standards of criminal responsibility.” 

The Justices in the [precedent case] declined to extend the Eighth Amendment prohibition to the punishment of involuntary conduct because they feared doing so would allow violent defendants to argue that their conduct was “compelled” by any number of “conditions.” … But these concerns are not at issue when, as here, they are applied to conduct that is essential to human life and wholly innocent, such as sleeping. No inquiry is required to determine whether a person is compelled to sleep; we know that no one can stay awake indefinitely. Thus, the Court need not constitutionalize a general compulsion defense to resolve this case; it need only hold that the Eighth Amendment outlaws the punishment of unavoidable conduct that we know to be universal. Moreover, … Its punishment would serve no retributive purpose, or any other legitimate purpose. [The thrust of this] interpretation of the Cruel and Unusual Punishment Clause is that criminal penalties may be inflicted only if the accused has committed some act [or] has engaged in some behavior which society has an interest in preventing.” 

Using this reasoning, the vital question for the Court becomes: Given the current homeless population and available shelter space in Boise, as well as any restrictions on those shelter beds, are homeless individuals in Boise capable of conforming the necessary life activity of sleeping to the current law? If not, enforcing the anti-camping ordinances and criminalizing sleeping in public violates the Eighth Amendment, because it is no different from criminalizing homelessness itself. … 

The realities facing homeless individuals each day support this application of the Eighth Amendment. … Regardless of the causes of homelessness, individuals remain homeless involuntarily, including children, families, veterans, and individuals with physical and mental health disabilities. Communities nationwide are suffering from a shortage of affordable housing. And, in many jurisdictions, emergency and temporary shelter systems are already underfunded and overcrowded. 

Criminalizing public sleeping in cities with insufficient housing and support for homeless individuals does not improve public safety outcomes or reduce the factors that contribute to homelessness. As noted by the U.S. Interagency Council on Homelessness, “[r]ather than helping people to regain housing, obtain employment, or access needed treatment and service, criminalization creates a costly revolving door that circulates individuals experiencing homelessness from the street to the criminal justice system and back.”17 Issuing citations for public sleeping forces individuals into the criminal justice system and creates additional obstacles to overcoming homelessness. Criminal records can create barriers to employment and participation in permanent, supportive housing programs.18 Convictions under these municipal ordinances can also lead to lengthy jail sentences based on the ordinance violation itself, or the inability to pay fines and fees associated with the ordinance violation. Incarceration, in turn, has a profound effect on these individuals’ lives.19 Thus, criminalizing homelessness is both unconstitutional and misguided public policy, leading to worse outcomes for people who are homeless and for their communities. 

Conclusion: The Court should adopt the analysis in Jones to evaluate Boise’s anti-camping and disorderly conduct ordinances as applied to Plaintiffs in this case. If the Court finds that it is impossible for homeless individuals to secure shelter space on some nights because no beds are available, no shelter meets their disability needs, or they have exceeded the maximum stay limitations, then the Court should also find that enforcement of the ordinances under those circumstances criminalizes the status of being homeless and violates the Eighth Amendment to the Constitution. 

Submitted this 6th day of August, 2015. 

Sharon Brett - Attorney for the United States of America