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U.S. Constitution's 8th Amendment (Cruel/Unusual Punishment) Bars Cities From Prosecuting Homeless Criminally For Sleeping On Public Property If No Sleeping Space Is Practically Available In Any Shelter, Fed'l Appeals Court Rules


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"We consider whether the Eighth Amendment's prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to. We conclude that it does." Martin v. City of Boise, 9th Cir. US Court of Appeals, Sept. 4, 2018

(Sept. 6, 2018, 6:50 a.m.) -- In a decision that applies across several western states including CA, the 9th Cir. U.S. Court of Appeals has ruled that cities cannot arrest/criminalize homeless individuals for sleeping on public property when there's no sleeping space practically available in any shelter.

The three judge appellate panel's Sept. 4 opinion, which can be viewed viewed here, favorably cited the reasoning of a 2007 9th Cir. Court of Appeals ruling (Jones vs. City of Los Angeles) that had been vacated under a settlement agreement between its homeless plaintiffs and the City of Los Angeles. In the 2007 Jones case, a 9th Circuit panel concluded "so long as there is a greater number of homeless individuals in Los Angeles than the number of available beds [in shelters]" for the homeless, Los Angeles couldn't enforce an ordinance against homeless persons "for involuntarily sitting, lying, and sleeping in public."

In the Boise case, the appeals court stated: "We agree with Jones's reasoning and central conclusion, however, and so hold that an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them."

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The Boise appellate panel went on to state:

Our holding is a narrow one. Like the Jones panel, "we in no way dictate to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets . . . at any time and at any place."...We hold only that "so long as there is a greater number of homeless individuals in [a jurisdiction] than the number of available beds [in shelters]," the jurisdiction cannot prosecute homeless individuals for "involuntarily sitting, lying, and sleeping in public." [citing Jones"...That is, 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.

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Hoever the Court included this somewhat-limiting footnote:

[footnote 8] Naturally, our holding does not cover individuals who do [emphasis in original] have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it. Nor do we suggest that a jurisdiction with insufficient shelter can never criminalize the act ofsleeping outside. Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible. [cites Jones] So, too, might an ordinance barring the obstruction of public rights of way or the erection of certain structures. Whether some other ordinance is consistent with the Eighth Amendment will depend, as here, on whether it punishes a person for lacking the means to live out the "universal and unavoidable consequences of being human" in the way the ordinance prescribes. [citing Jones]

The Boise court's ruling applies in several western states, including CA. The City of Boise could appeal the ruling.

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