Matt Driscoll

Tacoma’s ban on public camping might be illegal and do more harm than good

Craig Frady rolls up his sleeping bag while breaking down his tent site at a homeless camp underneath the Interstate 705 overpass that was closed by city and state officials in Tacoma on April 13, 2017. The Tacoma City Council recently passed an ordinance banning camping on public property within the city limits.
Craig Frady rolls up his sleeping bag while breaking down his tent site at a homeless camp underneath the Interstate 705 overpass that was closed by city and state officials in Tacoma on April 13, 2017. The Tacoma City Council recently passed an ordinance banning camping on public property within the city limits. dperine@thenewstribune.com

On July 11, the Tacoma City Council took what might well end up being a step backward in its battle to alleviate homelessness in the city.

It was on that day, in what they declared an emergency action, that council members voted 8-0 to outlaw camping on public property.

The ordinance went into effect immediately and is scheduled to last until at least October.

While the first few steps the city has taken to address homelessness have been forward-thinking — including the opening of a large “stability center” on Puyallup Avenue — this last one was a mistake.

Here’s why.

By adopting the ordinance the city has stumbled into a potential legal quagmire. Similar laws across the nation are being challenged at the highest levels of the legal system.

And, more importantly, there’s little evidence that banning public camping helps alleviate homelessness and might, in fact, exacerbate it.

Bad and bad.

Let’s look first at the legal issues.

Yurij Rudensky is an attorney with Columbia Legal Services’ Economic Justice Project, a nonprofit legal aid program that focuses on issues of social and economic justice. Lawyers like Rudensky regularly challenge ordinances that prohibit public camping.

Rudensky said his agency “will certainly be taking a very close look” at whether Tacoma’s ordinance is constitutional.

We will certainly be taking a very close look at it.

Yurij Rudensky, an attorney with Columbia Legal Services’ Economic Justice Project, commenting on Tacoma’s new temporary ban on camping on public property

He noted a number of ways it might be challenged in court.

At their worst, these laws outlaw life-sustaining activities like sleeping or seeking shelter. Critics believe that they essentially criminalize homelessness.

The argument against these laws typically goes something like this: When a jurisdiction fails to provide adequate shelter options and makes crimes out of the things those experiencing homelessness need to do just to survive — like sitting or sleeping — it amounts to cruel and unusual punishment.

That’s a violation of a person’s Eighth Amendment rights.

In 2015, the U.S. Department of Justice filed a strongly worded “statement of interest” in a Boise sleeping ban case, contending just that.

Controversial ordinances like this have been passed across the country, of course. In fact, studies have found an increase in them in recent years. Predictably, lawsuits challenging such laws also have increased.

Currently, a case challenging Boise’s ban on sleeping in public — dating back to 2009 — is being argued in the U.S. Ninth Circuit Court of Appeals.

Decisions in such cases have gone both ways.

Now, for better or worse, Tacoma has thrown itself into this debate.

So do we have a legal leg to stand on?

Maybe?

Since the city’s $2.1 million stability site opened in June, genuine efforts have been made to help those experiencing homelessness find their way there. The site offers important services and amenities, and 74 people sheltered there in its first three days of operation.

For many, the stability site represents an adequate option.

In defending the new ordinance, the city attorney’s office said it “took a comprehensive approach to our review, analysis, and interpretation of relevant state and federal law,” noting that the new law is “limited in scope, breadth, and duration.”

The city has “proactively provided additional service sites in conjunction with those currently in place to help address any challenge to the constitutionality of the ordinance,” a statement from the city attorney’s office said.

But according to Tristia Bauman, a senior attorney with the National Law Center on Homelessness and Poverty, the constitutional question surrounding Tacoma’s new camping ban are straightforward.

She said a legal challenge would likely come down to whether this new facility, combined with the city’s other, chronically at capacity shelters, constitute a reasonable alternative for everyone currently sleeping on Tacoma’s streets.

That’s a question with no clear-cut answer that might ultimately be for the courts to decide.

What’s clearer at this point is the city’s stated motivation for this latest move.

Tacoma’s new anti-camping ordinance arrives as part of a broad, multi-phased effort to help better understand the homeless population and get people into stable housing.

City Councilman Robert Thoms was the only council member to offer comments before the emergency vote. Thoms pointed to a number of unauthorized camps that had been operating in the city and the plight of the people living in them.

He said he hoped the ordinance would help the city “address these encampments” and “position (people) to go to our transition centers.”

But Thoms also described the ordinance as “a good tool” that hopefully would provide a “remedy” for the negative impacts of homelessness.

It’s true that the new ordinance might provide such temporary relief for business owners or aggrieved citizens, who are understandably tired of dealing with the symptoms of homelessness in the city.

But there are a number of reasons to believe it will fail in almost every other measurable category.

Setting aside the potential legal challenges, laws that make criminal offenses out of the life-sustaining activities inherent to homelessness have proven largely ineffective.

In reality, they often make the problem worse.

According to a 2016 report from the National Law Center on Homelessness and Poverty, laws criminalizing homelessness serve “no constructive purpose.”

“Instead, arrests, unaffordable tickets, and the collateral consequences of criminal convictions make it more difficult for people to exit homelessness and get back on their feet,” the report found.

It noted the obvious — that fines and blemishes on a criminal record can make it difficult for a person to find housing.

“These barriers to income and housing can prolong a person’s homelessness, or even make it permanent,” the report concluded.

So, if the city is really trying to connect with people experiencing homelessness, build their trust, and ultimately help them into permanent housing, it’s fair to wonder what the heck we just got ourselves into.

To the extent that they want to include a criminalization tool, I fear it will be counterproductive and really undermine the good that they’re trying to achieve.

Tristia Bauman, a senior attorney with the National Law Center on Homelessness and Poverty, commenting on Tacoma’s new temporary ban on camping on public property

Bauman, who has South Sound roots, is familiar with Tacoma’s predicament.

“The steps taken by Tacoma both recently and historically to address homelessness in many ways reflect a city that is trying to be good,” Bauman said. “I think the declaration of the state of emergency and the kind of innovative multi-phased approach is interesting to us and could potentially even serve as a model for other cities.”

But …

“To the extent that they want to include a criminalization tool, I fear it will be counterproductive and really undermine the good that they’re trying to achieve,” Bauman said.

And that would be truly unfortunate.

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