The Mayor and Martin v. Boise
The perils of applying and interpreting
The Eighth Amendment to the U.S. Constitution (one of the ten amendments ratified December 15, 1791 that comprise the Bill of Rights) reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
In 2018 a three judge panel of the Court of Appeals for the Ninth Circuit (CA, OR, WA, ID, MT, AZ, NV, AK and HI) ruled in Martin v. Boise (in 38 pages), that “prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to” is a violation of the Constitutional proscription against cruel and unusual punishment under the Eight Amendment.
This 2018 ruling in Martin v. Boise seems entirely just in its manifest simplicity. After all, for law enforcement to disturb a person sleeping on a cold night in a city park, a person for whom there exists no shelter alternative, awakening them and forcing them to “move on”, or, worse, entangling them in the legal system by charging them with a crime like “vagrancy” and booking them in jail, is, on its face, “cruel”—if not particularly “unusual” in our society, both currently and historically. However, as with any legal ruling, the devil is in the details. Martin v. Boise can be, and to some degree has been, read to prohibit cities and law enforcement from doing anything at all to protect the rights of others of our citizens whose businesses and social comfort is impinged upon by visible homelessness—unless there exists, on any given night a sheltered place for every unsheltered homeless person to sleep (provided by the city or by private groups).
The Martin ruling leaves open the possibility of targeted limits on camping in certain places or at certain times. But it provides no test or standard for what would be permissible in such exceptions, and cities around the West have been looking for ways to thread that needle.
The Martin v. Boise ruling has spawned legal challenges that have reached the Ninth Circuit, the most prominent of which is Johnson v. Grants Pass (now an “Amended” opinion published on July 5, 2023 that stretches 155 pages). It reveals that among several of the judges who weighed in on that July 5th document with either a “Statement” or a “Dissent” there is much dispute over the legal underpinnings of Martin v. Boise. (Dare I point out that the most scathing of the Dissents come from Trump appointees who were likely vetted by the Federalist Society? Our voting choice of President can have far reaching consequences.)
Presumably encouraged by the July 5th Amended ruling in Johnson v. Grants Pass, the City of Grants Pass, Oregon, has since appealed to the U.S. Supreme Court in the hope that the Supreme Court will either clarify the ruling and apply it to the rest of the country (beyond the nine states under the Ninth Circuit) or, better, in the opinion of some, completely overturn the original Martin v. Boise ruling.
More than 20 other cities, counties, and organizations are piling on to Grants Pass’ request to the Supreme Court to take on Johnson v. Grants Pass (and, by extension, Martin v. Boise)—and that’s where we come in—along with our Mayoral race this November.
The City of Spokane and Mayor Woodward
Last week Mayor Nadine Woodward held a press conference to announce that the “City of Spokane” had signed on Grants Pass’s request to the Supreme Court to review Johnson v. Grants Pass. Tellingly, she was flanked by just one member of the City Council, Jonathan Bingle, along with her two preferred local shelter overseers, Phil Altmeyer of the Union Gospel Mission and Captain David Cain of the Salvation Army (currently managing TRAC the expensive, congregate shelter on Trent near the city limits, in a warehouse leased from Larry Stone). [The entire news conference is available to watch here on YouTube.] From Emry Dinman’s Spokesman article covering the event [the bold is mine]:
“This is critically important to our future,” Mayor Nadine Woodward said at a Friday news conference. “Local jurisdictions need to have more control about how we address homelessness, and we are having to spend more of our resources than we really want on those night-by-night emergency, low-barrier shelters.”
This is pure Nadine. This is the Mayor who declared “I think we need to get to the point where we’re working to make homelessness less comfortable…”, the Mayor responsible for the foot-dragging that led to the “warming center” debacle at the Convention Center in January 2022, the Mayor that kicked out more than a hundred homeless people sheltered peacefully at the Cannon Shelter—with no plan to house them, the Mayor who pursued opening the TRAC Shelter only in response to Camp Hope, and the Mayor who spent City resources to fight the cooling/warming tent set up at Camp Hope, cut off water, and threatened to send law enforcement to drive out the Camp’s residents.
In the press conference video Nadine added:
I should just let you know too that the Ninth Circuit did provide some clarity to the cases that we’re talking about, making a distinction between involuntary and voluntary homeless. So if we have a shelter bed, if we are moving someone off of a sidewalk or a public space or along the river, and we offer them a bed, they are no longer involuntarily homeless. They are choosing not to seek shelter. They are choosing not to seek services, and they are now considered voluntarily homeless. That is a distinction that was just made this week. It have been done purposely to preclude this particular effort [weighing in with Grants Pass], but I just wanted to update you on that as well.
The wording to which Ms. Woodward refers is actually three and a half weeks old. It comes from a one paragraph interim ruling issued September 5th by three judges of the Ninth Circuit in the context of another case, Coalition on Homelessness v. City and County of San Francisco. The actual wording is this:
“a person is not involuntarily homeless if they have declined a specific offer of available shelter or otherwise have access to such shelter or the means to obtain it…”
You can grasp an idea of where this is going in the mind of Mayor Woodward by reading the following quote from an article posted September 26th in the flagship Republican magazine, the National Review (founded in 1955 by none other than William F. Buckley, Jr.) [the bold is mine]:
Last week, in a ruling requiring the city of Phoenix to dismantle a massive downtown homeless camp, a state judge [Blaney, quoted below] in Arizona blasted that line of thinking. The city of Phoenix “erroneously applied” the narrow Martin ruling and allowed the Zone homeless camp to devolve into a public nuisance, Maricopa County Superior Court Judge Scott Blaney wrote in an order.
“If an individual refuses a shelter bed because she will not be permitted to bring all of her property into the shelter, that individual is not involuntarily homeless. If an individual refuses to go into a shelter because he wants more space than the shelter provides, that individual is not involuntarily homeless. And if an individual refuses to go into a shelter because he wants to live together with his partner, that individual is not involuntarily homeless,” Blaney [a Maricopa County, Arizona, Superior Court Judge] wrote.
The logical inference from Blaney’s statement is that, for example, once law enforcement offers an unsheltered woman a mat somewhere indoors to lie on —even if she is required to lie there bereft of her belongings, her partner, and living with PTSD around enclosed, crowded spaces—and she refuses, then she may be charged with the crime du jour that jurisdiction choses to use to clear public property of the visible homeless.
The devil is in the details, indeed.
We all want clean streets, streets that do not remind us with every step that the economic policies of our country, especially over the last forty years—have rendered people so poor that they are reduced to living on the streets.
Yes, I want Martin v. Boise clarified, but once it is I want a Mayor in office in Spokane who knows how to run a city, attract state and federal funds to help its citizens, retain valuable city expertise, and work to clear our streets with a suitable level of empathy and compassion for those being “cleared”. That Mayor is Lisa Brown. Vote for her in November.
Keep to the high ground,
P.S. In the federal court system the Courts of Appeal are one level above the federal District Courts and one level below the Supreme Court. For example, we, in Spokane, are part of the federal Eastern District of Washington, one of 13 Districts that make up the Ninth Circuit. The Ninth Circuit includes nine states, CA, OR, WA, ID, MT, AZ, NV, AK and HI. Currently 28 judges serve on the Ninth Circuit, ten of whom were appointed by Trump after vetting by the Federalist Society. A legal case that rises to the level of the Ninth Circuit is usually heard by a “panel” (three of these judges selected randomly from the among the 28), as in the case Martin v. Boise. The Ninth Circuit is the largest in the Courts of Appeal system, hearing appeals from nine states representing 20% of the population of the U.S. (67 million people).
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