On October 2, Judge Ronald E. Bush of the U.S. District Court for the District of Idaho dismissed the controversial Bell v. Boise suit after an epic, six-year journey from the lower courts to the Ninth Circuit and back. The dismissal means that, for the moment, the City of Boise remains free to enforce a ban on camping in public places.
Anti-camping laws are ubiquitous in the United States, and are especially so in the West, and this law had already been supported by the same court.
On referral to the Ninth Circuit Court, which covers much of the West Coast, including Idaho and California, the higher court found that the lower courts were wrong in their grounds for dismissing the case, and required them to hear it again.
But something far more interesting happened in the course of the Ninth Circuit hearing: The Department of Justice submitted a statement of interest in support of the plaintiffs, expressing the opinion that camping bands constitute cruel and unusual punishment, and are thus a violation of the Eight Amendment to the Constitution, if enforced while there is no access to alternative shelter.
This is the first time ever that the DOJ has taken a position on anti-homeless laws. While it does not in itself set a legal precedent (the DOJ is not a court), the opinion is bound to carry some weight.
Judge Bush dismissed the case on the grounds that the plaintiffs do not have legal standing to bring the lawsuit to the city: None of them were cited under the law, and, in fact, the law has not yet been implemented. (This is not surprising: The law was passed with the intention of its being used against a specific camp. The residents of that camp filed suit upon the law’s passage, prior to the beginning of enforcement.) It was the opinion of the plaintiffs and their attorneys that the threat of enforcement was adequate to create standing.
Very clearly, however, this is not a judicial endorsement of the constitutionality of such anti-homeless laws. In fact, it completely skirts the issue. What would a homeless win have meant? A District Court finding in favor of the plaintiffs would have nullified anti-homeless laws for the state of Idaho. If challenged, there would have been an opportunity to undermine all such laws in the west. Such a fight at the Ninth Circuit might have turned out very well for homeless people: A nearly identical case was brought to the Ninth Circuit by the ACLU of Southern California in 2006 (Jones v. Los Angeles), challenging a Los Angeles sleeping ban. The Ninth Circuit found in favor of the homeless plaintiffs, based on an argument virtually identical to that presented by the Department of Justice in Bell v. Boise. Unfortunately, the City of Los Angeles chose to appeal the Circuit’s ruling, and the plaintiffs’ attorneys agreed to a settlement which included the depublication of the ruling. (Depublication means that the ruling was vanished away: It wasn’t overruled; rather, it’s as if it never existed. The reasoning of the ruling has not been deprecated by the courts, but it does not stand as precedent in lower courts.)
And what about a win for the City? A District Court ruling in favor of the defendant—the camping-banning City of Boise—would have given the nod to all municipalities in the state, telling them that the Court smiled upon such practices. An appeal by plaintiffs would, again, have created a similar opportunity for a regional challenge to all such anti-homeless laws.
As things stand now, however, the District Court has decided to avoid any final decision. The plaintiffs would need to get their standing confirmed in the Ninth Circuit and have the case sent back down to the District of Idaho for a ruling before the case would have any impact on camping laws either in Idaho or throughout the Ninth Circuit. The continuing process would have dragged this six-year case out for several more years.
As all but two of the plaintiffs have managed to get into housing in the six years since Bell v. Boise was filed, there’s a good chance that the case will not continue. The Sixth Amendment right to a speedy trial applies only to criminal proceedings, not suits like this. As the authors of the Bill of Rights knew, slow justice is all too often no justice at all. The merits of the plaintiffs’ argument will not be heard, but the City is now free to begin enforcing the anti-homeless law.
Despite this, one very good thing has come out of the case: The Department of Justice’s opinion makes it, for the first time ever, the Federal government’s position that criminalization of homelessness is not just inadvisable and counterproductive (the position of the Federal Interagency Council on Homelessness for three years, now), but also unconstitutional. The Department of Housing and Urban Development has followed up by effectively penalizing cities that receive HUD funding and also criminalize homeless people.
There’s no announced plan for the final year and change of the Obama administration, but Washington has used Boise as one of several opportunities to send clear signals about its opposition to criminalization this summer. It’s anybody’s guess what we can expect from the next administration. We can hope, however, for a decisiveness that the lower courts have eschewed.