Politicians’ Dirty Secret: Martin v. Boise Doesn’t Prevent Cities From Enforcing Anti-Camping Ordinances in the Absence of Shelters

November 29, 2021 Updated: December 1, 2021

Commentary

For the past three years, the Los Angeles County Board of Supervisors and District Attorney have worked together to prevent the Sheriff’s Department from enforcing anti-camping ordinances throughout Los Angeles County. As a result of this interference, the number of people living unhoused in the county has grown, the number of fires, crimes, and public health problems attributable to people living unhoused has grown, and public concern over the situation has grown.

The Board of Supervisors and District Attorney have justified their interference with the orderly enforcement of local laws by claiming that their hands are tied by the decision of the United States Court of Appeals for the Ninth Circuit in Martin v. Boise. As explained below, however, the truth of the matter is that Martin is an exceedingly narrow decision that is really much ado about nothing when properly understood, and which does not, in any way, support the agenda of the Board of Supervisors and District Attorney.

Why would the Board of Supervisors and District Attorney purposefully interfere with the lawful enforcement of local laws designed to regulate people living unhoused in public spaces? The answer is simple and straightforward—the Supervisors and the District Attorney are politicians, whose bread is buttered by a Homelessness Industrial Complex that funnels substantial funds to public officials willing to do its bidding.

What exactly is the Homelessness Industrial Complex? It is a conglomeration of government contractors, bureaucracies, and other groups that benefit from the design, construction, and management of housing and shelter projects that are the recipients of billions of dollars of public funding for the ostensible purpose of solving homelessness.

The root causes of homelessness, however, are not a lack of affordable housing. Rather, the root causes of homelessness are mental illness, drug addiction, and alcoholism, as well as other complex issues—causes that are not alleviated by pumping billions of dollars into housing projects.

The Homelessness Industrial Complex has no real interest in solving the real causes of homelessness any more than the Military Industrial Complex is interested in peace. After all, it is far more lucrative to work endlessly on a problem than it is to implement a real solution. That is why most politicians support programs that care for the homeless and enable them to remain on the public dole in perpetuity.

Despite the hoopla and fanfare bestowed upon Martin by the Homelessness Industrial Complex, Martin does nothing more than (i) acknowledge that the Eighth Amendment prohibits cruel and unusual punishment, and (ii) hold that criminalizing (i.e., arresting and jailing) a person who lacks access to adequate temporary shelter for the mere act of sitting, lying, or sleeping in public is cruel and unusual punishment under certain circumstances. As the Martin court explicitly stated:

“Our holding is a narrow one. … 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.'”

Additionally, the Martin Court added: “Naturally, our holding does not cover individuals who do 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.”

Although the Homelessness Industrial Complex has seized on Martin to argue that local governments are powerless to do anything about homeless encampments unless there is adequate shelter space or public housing available for all people living unhoused in a jurisdiction, multiple courts have held that Martin does not preclude a local government from clearing encampments so long as no arrests are made.

As the court explained in Le Van Hung v. Schaaf, “while Martin limits localities’ ability to arrest their homeless residents for the act of living in the streets when there is nowhere else for them to go, it does not create a right for homeless residents to occupy indefinitely any public space of their choosing.”

Courts have expressed this same view of Martin in Miralle v. City of Oakland, Sullivan v. City of Berkeley, Quintero v. City of Santa Cruz, Winslow v. City of Oakland, and Young v. City of Los Angeles. Taking the analysis a step further, the court in Housing is a Human Right Orange County v. County of Orange, held that Martin does not even preclude “threats” of arrest. Rather, as the court held in that case, Martin “require[s] the initiation of the criminal process to state a claim for damages for an Eighth Amendment violation.”

Based on these authorities, an article published by the Harvard Law Review explains that Martin permits cities to “clear homeless camps, arrest those who refuse to leave, and force those arrested to show that shelters are full.” Additionally, an article written by lawyers who represented the city of Boise in its effort to obtain review by the United States Supreme Court explains that “Martin concerned only the constitutionality of ordinances imposing criminal penalties, such as misdemeanors; it says nothing about the constitutionality of ordinances imposing civil penalties for public camping.”

Despite the contrary claims of the Homelessness Industrial Complex, anti-camping ordinances (including the ordinances at issue in Martin) are constitutional and enforceable so long as law enforcement stops short of arresting people from sitting, lying, or sleeping on public property if they truly lack access to adequate temporary shelter because they cannot afford it and it is not otherwise available to them.

Pursuant to post-Martin decisional law, law enforcement officers can approach a subject to ascertain whether they qualify for a “Martin exemption” from being arrested, and let them know that they are violating the no camping law and are required to “move on.” Stopping at that point does not criminalize a truly homeless person from merely sitting, lying, or sleeping in public—which is all that is prohibited by Martin.

Moreover, an arrest can be made if an individual is engaged in camping activities beyond merely sitting, lying, or sleeping. An arrest also can be made if an individual is merely sitting, lying, or sleeping (for a prolonged period of time) and has access to adequate temporary shelter (for one or more reasons identified in Martin).

There is no serious question that Martin does not support the efforts by the Homelessness Industrial Complex to suck up public funds to build and manage shelters that do nothing to reduce homelessness. Rather, the real question is how to get the Sheriff’s Department (and other law enforcement authorities) to enforce the law when politicians are employing an overbroad (and incorrect) interpretation of Martin based upon their allegiance to the Homelessness Industrial Complex.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.