Introduction
I’ve split this topic into three parts in the hope that a) it will make it a little more digestible, and b) I can get something off my desk before SCOTUS hears the case!
In this article, I will summarize the holding of Martin v. Boise, the most recognized, misinterpreted, and misquoted landmark case affecting the dynamic tension between homelessness and its impact on communities in the Western states.
In Part II, I will explain what the Grants Pass case did, how it expanded Martin, and why both the left and right have urged the Supreme Court to review the law and its application.
Finally, in Part III, now that SCOTUS has announced it will hear the case, I will provide some commentary on our own Warren case, and the Amicus Brief Alvarez-Glassman & Colvin’s Eric Salbert filed with SCOTUS on Chico’s behalf.
I will not focus on the legal sufficiency of Eric’s brief. That issue is now moot, given the Supreme Court’s grant of certiorari. If you are interested in the best legal arguments against Martin v. Boise and Johnson v. Grants Pass, read the dissenting opinions in those cases. Those judges know how to make persuasive legal arguments. The two cases can be found here:
The San Francisco case that prompted Gavin Newson to file an Amicus brief, which cited Grants Pass as its authority, can be found here:
The entire docket of documents filed with SCOTUS, including who filed Amicus Briefs and the briefs of the parties, you can find those here:
Supreme Court Docket-Grants Pass
Instead, I will comment on the Chico brief in light of the omitted history of the Warren v. Chico case, the one that we are living with here in Chico. Read in light of the omitted facts, we can see just how far that settlement strays from the law and the mandates of Martin. Recall that at the time of the Warren case and the subsequent settlement, the Grants Pass case had not yet been heard.
Martin v. Boise
This case started way back in 2009 and wasn’t finally settled until 2019 when the application for an en banc hearing (appeal to a full panel of judges after the 3-judge panel ruled) was denied. Boise applied for certiorari to the SCOTUS but they declined to take up the case. At that time, I pointed out that a decision not to hear the case does not mean SCOTUS supported the 9th Circuit decision. It could come back, and now with the Grants Pass case on the docket, both cases are likely to be included in the review.
The best way to understand the fundamentals of that holding is this: Cities can no longer ban sleeping outdoors everywhere, or at all times UNLESS there is an indoor alternative. To say it another way, if you allowed people to sleep outdoors SOMEWHERE in the city, even if there are restrictions on HOW and WHEN, Martin v. Boise leaves you alone.
The court used the 8th Amendment prohibition against “cruel and unusual punishment” to justify their ruling. Legal scholarship is very critical of this application of that Constitutional clause to these facts. The holding strays far from any SCOTUS precedents applying the 8th Amendment, and charts completely new territory in its use. Nonetheless, the majority reasoning goes like this:
Sleeping is a fundamental need of all humans. If a city bans sleeping outdoors for those who have no access to indoor sleeping, then you are in effect criminalizing sleeping, because there is no legal place available to do it. To punish someone for sleeping, the judges reasoned, is cruel and unusual punishment, and therefore violates the 8th Amendment.
Before Martin v. Boise, cities had a long history of implementing various “vagrancy laws.” The idea was this: if you wander into town, either find a way to settle in and support yourself, or keep moving. A string of challenges to these laws, mostly dealing with alcoholism, made a distinction between voluntary and involuntary conduct. This is how the legal doctrine now distinguishes between the prohibited criminalization of “conditions or status” (i.e. being an alcoholic) and being drunk and disorderly in public (conduct). This idea was deftly maneuvered into place in the Martin decision.
After Martin, cities could no longer take the “move along” approach, and if a city wanted to keep transients out of their town, they had to allow them to rest and sleep somewhere, or provide shelter for them.
But this is where the total misunderstanding comes in. Homeless advocates just skip over the critical part of Boise’s holding that prohibits banning sleeping “everywhere and at all times.” Instead, they state it as “you can’t move people out of any public land UNLESS you provide shelter.” This principle is constantly misunderstood and/or misstated by advocates, journalists, and even city attorneys throughout the 9th Circuit. This restatement of the Boise holding is the root of the abusive lawfare in Warren v. Chico.
It has been long-settled law that jurisdictions have a Constitutional right to regulate the time and place for activities that cannot be banned entirely. This is why a city can’t ban parades entirely, but they can require a permit that specifies the time, place, and conditions for obtaining a permit. Having a parade without a permit is illegal because it snarls traffic and causes other problems, so the city has a legitimate interest in protecting the health and safety of its citizens. This concept of time and place regulation has been tested in a variety of cases and contexts, including free speech, assembly, religion, etc. This right is acknowledged in the express language of Martin v. Boise.
After Martin, cities could no longer just “keep them moving,” without either designating a time and place where sleeping is not criminalized, or ensuring through direct or indirect means, and individual assessments as to “voluntariness” that indoor alternatives exist and are accessible.
But in most of the cases brought against cities under the Martin holding, the cities themselves are to blame for agreeing to settlements that go far beyond the law of Martin. Lawyers and advocacy groups used lawfare, the aggressive use of federal lawsuits, to allege something that Martin never said.
“Either provide shelter for everyone, or you must let them sleep anywhere and at all times anywhere on City property. They have a right to store their personal property and erect shelter against the elements, too. If you want your parks back, build shelters and run them.”
Unprepared or sympathetic city attorneys repeatedly cowered against these allegations and caved into their demands through lopsided settlement agreements. Rarely, except the cities of Boise and Grants Pass, have cities gone through with a trial to defend their right to protect citizens against illegal encroachments on health and safety laws.
In the hands of incompetent or complacent city attorneys, that assertion, if accepted, leads to agreements that force cities to use public funds to shelter all homeless people sleeping in parks or other public lands, and recently even the parking strips along public streets.
The net effect of this is that non-profits in the homeless industry are now relieved of any obligation to use their grants and funding to duplicate what the city has agreed to provide. In fact, as in the case of Warren, it creates a new revenue stream for the non-profits hired to run the city shelters. Between state, federal, and now city revenue, tens of millions of dollars have been expended in Chico in support of less than 1% of the population. The state and federal dollars increase in addition to the money the city of Chico must now contribute to its city-run shelters. This is quite an accomplishment for the homeless industry. Like all businesses, finding new revenue streams is a fundamental principle of growth.
Even more egregious, this arrangement relieves the State of the Constitutional and statutory duty to provide care for the indigent population. Instead, they simply issue grants to the local Continuum of Care, a consortium of non-profits providing homeless services, and wash their hand for a fraction of the real costs. Meanwhile, predatory law firms like Legal Services of Northern California use lawfare tactics to extract additional funds from cities, which for the first time are being required to enter the social services realm.
Meanwhile, California has closed mental hospitals, prisons, and general hospitals that once provided indigent care. All of these duties have now been externalized to county mental health, jails, and private hospitals by mandating care for those who at one time were patients in mental hospitals, drug rehabs, county hospitals, and in extreme cases, inmates in jails and prisons.
It has been a windfall for the state budgets, all the while the homeless population continues to grow, and the impacts on citizens strain the existence of livable cities.
A reasonable summary of the entire history of this case, written shortly after the decision was published, can be found here: https://harvardlawreview.org/print/vol-133/martin-v-city-of-boise/
That’s Martin v. Boise.
Seems like the increase is at least partly associated with lack of Treatment Court. Treatment and accountability (what is reasonable on a case by case bad after deep assessment) are the path to stability. Treatment Court can’t just offer carrots. The law has to have enough teeth that consequences are allowed to be brought to bear such that treatment is the preferred choice.
This is a weak analogy, but I’m diabetic and the consequences are severe if I don’t get a handle on my habits. But the habits win out anyway. I literally had to join an online fat farm that costs me a ton of money if I don’t reach my behavior goals. For me, the consequences being brought to bear quickly is an astounding motivator.
I don’t believe treating everyone like a victim is in anyone’s best interest. Deep assessment, then a plan, with parameters and consequences appropriate to the case (and the law pre Prop 47/57 needs restoration).
Thank you so much for making some sense out of this insanity. You make complicated legal issues understandable for my husband and myself.