Justice Department Files Historic Brief in Bell vs. City of Boise

        By Katy Carpenter

“Imagine a world where it is illegal to sit down. Could you survive if there were no place you were allowed to fall asleep, to store your belongings, or to stand still? For most of us, these scenarios seem unrealistic to the point of being ludicrous. But, for homeless people across America, these circumstances are an ordinary part of daily life”

-The National Law Center on Homelessness and Poverty

The Department of Justice set the stage by addressing the estimated size of the homeless population at 11 million-“on any given night”.  The Bell v. The City of Boise Lawsuit was originally filed in 2009, and was dismissed by the District Court Judge because some of the defendants were no longer homeless, citing procedural grounds. However, the Department of Justice made it clear in their statement of interest that this blatant rearranging of the docket to exclude individuals that had once had their rights violated based on shelter status will no longer be tolerated-and that the criminalization of homelessness is in fact a direct violation of peoples’ Eighth Amendment rights (Bell v. The City of Boise).

The National Law Center on Homelessness and Poverty (NLCHP) analyzed more than 187 cities across the nation, and found that over half of these cities (those that were analyzed) had some sort of criminalization in place for sitting, lying or camping in specific places. Advocates at the center also found approximately 1/3 had camping bans in place throughout city limits. Even more astounding is the number of individuals the DOJ predicts sleep unsheltered every night in the United States- approximately 42% of the homeless population. This means that at any time in this country, approximately 4,620,000 individuals are sleeping in public spaces, and are at risk of being criminalized for simply existing.

Bell v. The City of Boise challenges two specific city ordinances, the first being Boise City Code § 9-10-02; this ordinance criminalizes the use of “streets, sidewalks, parks or public spaces as a camping place at any time, or to cause or permit any vehicle to remain in any of said places to the detriment of public travel or convenience.” This ordinance is more commonly known as the “camping ordinance”. The second of the ordinances being challenged is § 6-01-05(A), which criminalizes “disorderly conduct.” Disorderly conduct in the Municipal Code is inclusive of the following: “[o]ccupying, lodging or sleeping in any building, structure or place, whether public or private, or in any motor vehicle without the permission of the owner or person entitled to possession or in control thereof” (Bell v. The City of Boise).

Plaintiffs argued that both of the above ordinances were unconstitutional on the following grounds; the first being that there are is not enough shelter space for the homeless population in the city of Boise, the second being that there are oftentimes restrictions in place at the shelters that do have available spaces-anything from religious prayer to not having available space for pets, and the lack of available shelter space for those experiencing addiction. Plaintiffs also argued that the unreliable reporting and lack of information sharing between the shelter system and the Boise Police Department, made it impossible to get an accurate idea when shelters are indeed at capacity (DOJ), an argument the city used in their defense. Even after the initial lawsuit was filed in 2009 (advocates appealed in 2015), police continue to ticket individuals after multiple reforms in municipal code in both 2011 and 2014. Eric Tars, a senior attorney at NLCHP continues to find that “there are more homeless people in Boise than available and accessible shelter beds”-which is why Idaho Legal Aid Services, NLCHP, and Latham & Watkins continue to commit themselves to this lawsuit, as the city continues to miss the “substance of the argument,” continues to fail to address the root causes of homelessness, and continues to violate homeless individuals Eighth Amendment Rights (NLCHP and Idaho Legal Aid Services).

Some may ask, what the big deal is about, after all the court case was dismissed. Why is it that the comments from the DOJ are something that longtime advocates have been waiting for, and what does this actually mean as far as homeless rights are concerned? The below comments offer a brief statement about the impact the DOJ comments on this case and implications for municipal governments nationwide, as well as the impact these comments have in the advocacy sphere. The DOJ comments on this case do the following things:

The DOJ’s comment provides municipal governments with a legal standard for rules regarding homeless individuals-now laws that criminalize conditions of homelessness, like sleeping or sitting in public when there is no alternative are in direct violation of a person’s Eighth Amendment Rights. These comments also provide municipal governments with a moral guide for creating legislation regarding homeless individuals, emphasizing the need to focus on creating legislation that will provide the necessary tools to address the root causes of homelessness instead of the circumstances that come as a byproduct of being homeless, anything the court suggests is “misguided public policy.”

According to the National Law Center on Homelessness and Poverty, advocates, and the Department of Justice, the criminalization of homelessness is not only a direct violation of Eighth Amendment Rights but it is also not an effective strategy to end homelessness. We need to look to the lack of affordable housing that exists in the marketplace, to the lack of employment opportunities that are available in the community (especially those also facing challenges of reentry), and to the mental illness and dependencies that face this vulnerable population. This historic statement of interest from the Department of Justice is a monumental step in the fight for homelessness rights, and will continue to shape the evolving landscape that advocates for homeless rights work in and around, and will continue to set a precedence for outdated and restrictive laws that violate human rights across the country, emphasizing that homeless rights are human rights.

To read the Department of Justice’s Statement of Interest, you can follow this.  https://www.justice.gov/opa/file/643766/download.

To read the National Law Center on Homelessness and Poverty’s Report on ending criminalization of homelessness, you can follow this link below:


Copyright Cleveland Street Chronicle September 2016 Issue 23.3 Cleveland Ohio