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There’s a rethinking of camping bans after court says they discriminate against the homeless

Could tiny homes help alleviate Pierce County’s homeless crisis?

Councilman Rick Talbert and assistant Mark Williams visit Thurston County's innovative Quixote Village homeless community to explore the potential they believe tiny homes can have in helping Pierce County deal with a growing crisis.
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Councilman Rick Talbert and assistant Mark Williams visit Thurston County's innovative Quixote Village homeless community to explore the potential they believe tiny homes can have in helping Pierce County deal with a growing crisis.

Reacting to a federal court ruling that said local governments can’t criminalize homelessness if a shelter bed is not available, Pierce County is not enforcing an ordinance that makes it a crime to camp on public property.

“Our law enforcement officers are not arresting based on that (ordinance) alone,” said Alicia Burton, a deputy Pierce County prosecutor in the civil division.

The county based its decision on a ruling released last September by the Ninth Circuit U.S. Court of Appeals that said two Boise, Idaho ordinances violated the Constitution. The three-judge panel held in Martin vs. City of Boise that the cruel and unusual punishments clause of the Eighth Amendment prohibited the “imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.”

The court decision doesn’t mean other crimes can’t be prosecuted at homeless camps or other locations, Burton said.

“If there is another reason to arrest — say drug possession, an assault that occurs at a camp — the officers do have constitutional authority to make an arrest in that situation,” she said.

DEBATE AT THE CAPITOL

On Tuesday, advocates for the homeless and law enforcement officials offered their views to Washington state legislators about the complex issues surrounding the court decision, which applies to local governments in Western states. The review of the decision by the House Civil Rights and Judiciary Committee comes after a bill died that would have put the rights of homeless people in the state code and created a civil cause of action if those rights were violated.

A day before the hearing, the federal appeals court rejected a request from Boise officials to reconsider its ruling.

“The act of surviving in public is so tightly regulated for unsheltered people that they can’t help but get caught up in the web of these laws,” said Sara Rankin, an associate professor at the Seattle University School of Law and director of the Homeless Rights Advocacy Project.

The court seems to be “going down paths that are somewhat new” that could have different consequences for those with homes and those without shelter, said Mike Hoover, a lobbyist for the Washington State Association of Counties.

“They seem to be advancing almost a necessity argument ...Things may be criminal but they’re OK if they’re necessary and that creates different classes for different people, and we’re not sure what we need to do with our books,” said Hoover, a former chief counsel to the King County Council.

The court decision came in a lawsuit filed on behalf of six homeless Boise residents who received citations for violating the anti-camping and disorderly conduct ordinances. After the litigation began, the city amended the measures so they could not be enforced against a homeless person on public property when shelters had no available overnight space.

In holding that the ordinances were unconstitutional, the court said homeless people still could be turned away for exceeding the shelter’s limits on length of stay or for declining to participate in religious programs.

The court ruled that “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 promise they had a choice in the matter.”

Rankin, the associate professor at the Seattle University School of Law, said she’s not aware of any government database that compiles the local government laws in Washington state that “run the risk of disproportionately impacting” the homeless and how they’re enforced. She said she hopes the Legislature in next year’s session pushes for collecting and making that data accessible to the public.

“A positive thing would be to encourage cities to keep track of data, so we can better understand how the machinery of the criminal justice system is impacting the homelessness crisis,” Rankin said.

Fear-mongering over homelessness can give rise to vigilante justice. Some citizens in East Pierce County have attempted to police the homeless on their own despite authorities cautioning against such an approach.

‘CRIMINALIZE HOMELESSNESS’

In 2015, the Homeless Rights Advocacy Project released a report that examined the codes of 72 cities in Washington state and found that most of them “criminalize homelessness” by prohibiting or limiting sitting, standing or sleeping in public places.

At Tuesday’s meeting of the House Civil Rights and Judiciary Committee, Rep. Christine Kilduff, D-University Place, asked if the county’s ordinance that bans camping on county property, including parks — except in areas specifically designated and posted for those purposes — remains in effect.

Burton, the deputy Pierce County prosecutor in the civil division, said it’s still on the books, and county parks employees use it when they encounter people at homeless camps.

“I know our parks use that to basically start the conversation. ‘You’re not allowed to be here. You need to move on.’ We provide the notice that this area will be cleaned up within a certain amount of days,” she said.

In an interview, Burton said keeping the ordinance in the code does not put the county at a greater risk of lawsuits that would cite the Martin decision.

“It would have to be a plaintiff who is homeless who was arrested for violation of the ordinance on an evening or a day when there were no shelters available,” she said.

Burton referred questions about enforcement prior to the Martin decision to the Sheriff’s Department. A spokesman didn’t immediately return messages seeking comment Friday. Violation of the ordinance prohibiting camping in county parks is a misdemeanor that carries a fine of up to $1,000 or up to 90 days in jail — or both. Violation of the ban on camping on other county property is a civil infraction with a maximum penalty of $120.

Pierce County Council member Derek Young said he expects the council will consider whether the anti-camping ordinance should be repealed.

“I don’t know that necessarily they have been enforcing it for some time. It’s a matter of resources. They lack the capacity to spend time on the less dangerous crimes. In addition to that, the sheriff has been pretty supportive of making sure people that are in crisis of any sort get help rather than trying to arrest or incarcerate them for being homeless or having some behavioral health issues,” Young said.

PIERCE COUNTY, PUYALLUP SUED

Pierce County is a defendant in a federal lawsuit filed last September on behalf of six homeless people alleging that sweeps of Puyallup area camps were unconstitutional. They said in the lawsuit that the county destroyed property and personal belongings by hand or with heavy machinery, including bulldozers. Items that were lost included clothes, medical records, a birth certificate, medicine and family photos, according to the lawsuit.

The city of Puyallup also was sued, but it is no longer a defendant after agreeing to pay $10,100 each to four of the plaintiffs and $100,000 for their attorneys’ fees.

Unlike the Martin lawsuit, the federal lawsuit does not claim a violation of the Eighth Amendment. Instead, it alleges that the county violated the right to due process under the Fifth and Fourteenth amendments by depriving the plaintiffs of their privacy, liberty and/or property interests.

Pierce County officials have rejected the allegation, saying the county provides notice before camps are removed and makes sure that people receive information about services that can help them. County officials say the sweeps, which they refer to as cleanups, are needed to maintain river banks and to help individuals living in unsafe and unsanitary conditions.

TACOMA, OLYMPIA REACT

Tacoma has a law against camping on public property, but it’s rare for officers to issue citations because homeless people comply when they’re told to move, said City Attorney Bill Fosbre.

“The Martin decision didn’t really impact it and our enforcement practices because prior to that decision we always ensured that there was space in an indoor shelter before we’d enforce it,” Fosbre said.

Homeless shelters provide updates on beds available to the city’s Neighborhood and Community Services Department, which passes it on to the police, said Capt. Shawn Stringer of the Tacoma Police Department.

Olympia has an anti-camping ordinance, but it also allows people including those who are “unsheltered” to sit or sleep on public sidewalks between midnight and 7 a.m., said Mayor Cheryl Selby. Otherwise, people are prohibited from sitting or sleeping on sidewalks, so they don’t block access to businesses.

“I can add that we never enforced that strict of a time line and cited fewer than five folks annually in the six years it’s been in place,” Selby told House legislators on Tuesday.

Olympia Police Chief Ronnie Roberts said in an interview: “We don’t want people sleeping on the sidewalks for lots of good reasons, but we’re also working hard to try to create as much housing and options as well.”

Steve Strachan, executive director of the Washington Association of Sheriffs and Police Chiefs, urged legislators to differentiate between homeless people and “criminal transients,” whom he said “choose to commit crimes” and sometimes do so against homeless people.

“Criminal transients and those who willingly commit crimes should be prosecuted within the law. They are not in the same category as homeless persons; those with behavioral health problems and addiction who need and will accept help,” Strachan said.

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