What were they thinking on Mercer Island?
On February 16, the Mercer Island city council made headlines by passing an ordinance that enables the city to impose a fine of up to $1000 or up to 90 days in jail for anyone caught sleeping in a park, on a sidewalk, or in any other public space -– but only if no shelter in a nearby community has vacant beds.
The caveat about nearby shelters is obviously an effort to get around the 9th Circuit’s decision in Martin v. Boise, which ruled that a government can’t criminalize sleeping in a public place unless there are shelter beds available. Sleep is a necessity. If a person can’t sleep indoors, it’s cruel and unusual to punish him for doing it outdoors, the court ruled. It did not say that anyone had a right to sleep on the sidewalk or in the park -– just that in the absence of shelter beds, a city can’t fine or jail anyone who does. That’s the controversial ruling that hangs over any city’s efforts to move on homeless occupying public parks and sidewalks.
Will anyone litigate for a right to be homeless? Probably not. “We brought the [Martin] case not to protect the rights of people to sleep on the street,” says Eric Tars, legal director of the National Homelessness Law Center. “Our goal is to make sure people don’t have to sleep on the streets in the first place.”
Martin pushed some cities closer to that goal – but not all. “In the wake of the first Martin v Boise decision,” Tars says, “we saw some cities take really immediate positive steps. Modesto, California, for example, immediately halted a sweep they had planned for the next day.” The city “let people stay in the park while they set up an encampment elsewhere,” and subsequently created more indoor space. “A number of other communities instead [started] paying their city attorneys to try to find legal loopholes.”
How far can the 9th Circuit’s logic extend? In a dissent from the 9th Circuit’s 2019 decision not to re-hear the case en banc, Circuit Judge Milan Smith, joined by five colleagues, suggested that “the panel’s reasoning will soon prevent local governments from enforcing a host of other public health and safety laws, such as those prohibiting public defecation and urination.” But if governments don’t provide public toilets, what can they expect people to do? This is not just a hypothetical problem.
Tars describes the case of a Florida woman named Amber, who had no access to public restrooms after 11 at night. She tried not drinking anything after 6 pm. That wasn’t foolproof. “One night as she was huddled behind a bush, she was caught and ticketed,” Tars says. She was charged with public exposure -– which is a sex crime -– which would “make it almost impossible for her to get a job or housing.” He adds, “we told that to the former United Nations special rapporteur on torture. He just shook his head.”
But could Martin mean a city can’t charge someone with using the bushes? “Legally, would the same principles apply?” Tars asks. “I would say they could.” But he doesn’t want cities to let more people use the bushes. He wants to see cities install more public restrooms -– and see them available all the time. If that happens, he points out, the homeless aren’t the only people who’ll be better off.
The Mercer Island ordinance doesn’t address that one. And Mercer Island isn’t likely to apply its new ordinance any time soon. Just where are those vacant shelter beds going to appear? “The whole state had roughly 9,600 emergency shelter beds in 2019,” Scott Greenstone wrote in the February 20 Seattle Times. “That year, there were more than 21,000 homeless people statewide.”
Are cities helpless in the face of Martin v. City of Boise? Hardly. “Seattle, for instance, has managed to carry out many camp removals, largely by declaring them a danger to public health or safety,” Greenstone wrote. “Other cities quickly created shelters,” he explained, “often tents inside fenced-off areas, or hutlike portable structures under big tents — and moved people out of homeless encampments and into those. After that, they started enforcing anti-camping laws again.”
Greenstone continues, “The city usually points to fires, drug dealing, or outbreaks of disease as reasons for clearing camps. Will Lemke, a spokesperson for the city, added that sometimes homeless camps blocked sidewalks, obstructing people in wheelchairs. ‘It is a loophole that is the size of the grand canyon,’ said Sara Rankin, a law professor and founder of the Homeless Rights Advocacy Project at Seattle University. ‘It’s so easy to just sort of invoke that phrase, that there’s a public health or safety issue — it’s sort of this talismanic shield they can lift up and protect themselves from [the court decision].’”
So what was the point of Mercer Island’s passing an ordinance that wasn’t needed and can’t be used? Good question, but Mercer Island isn’t talking. (I was informed that “the city is no longer granting interviews on this topic.”) The city did say when it passed the ordinance that “absent a law prohibiting camping on public land, the officers will not have a reason to contact people who are camping. The Ordinance will allow the officers to prompt, and assist where possible, people to get connected to resources.” However, when Mercer Island passed the new ordinance, AJ Janavel reported for Q13 that “police officials say similar laws have been on the books for decades.”
They’ve evidently been on the books in a number of places The Mercer Island press release about the ordinance noted that “several other Eastside cities have enacted similar ordinances, including Redmond (amended 2018), Bellevue (2017), Lynnwood (2001), and Issaquah (2000). Camping has already been prohibited in the parks of Mercer Island under MICC 9.30.160 since 1991.”
Here and elsewhere, there are certainly more homeless people occupying more conspicuous public space than there were in 1991 – indeed, than anyone now living can remember. But without going Biblical -– “ye have the poor always with you” -– it may be useful to recall we have a long history of people involuntarily sleeping rough. Anatole France, who died in 1924, famously wrote that “[in] its majestic equality, the law forbids rich and poor alike to sleep under bridges.”
Even in Seattle. After the city parks department acquired Alki beachfront in 1909, Matthew Klingle wrote in Emerald City, his 2007 environmental history of Seattle, “it asked the city attorney to condemn rows of shacks fronting the shoreline. Squatters remained a persistent nuisance . . . for the next two decades.”
Alki wasn’t the only place people squatted. “Because parks were another commons for the indigent and transient to call home,” Klingle wrote, “Gus Knudson, director of the Woodland Park Zoo and the park department’s sanitary inspector, had to wage ‘continuous war on rats and mice.’ In almost every location, the causes of the rodent infestation, as he found over the course of 244 inspections across the city in 1923, were the piles of ‘garbage and junk’ and ‘old unused shacks and buildings’ scattered in the city’s parks.”
Basically, getting squatters out of public places all boils down to money. The city of Boise settled Martin just last month, in part by agreeing to spend $1.3 million on the homeless. For the time being, the money part isn’t that hard: For the next half-year, FEMA will reimburse local governments 100 percent for housing homeless people in non-congregate settings such as hotels.
“With this 100-percent reimbursement, there’s no fiscal reason for a community not to be doing it,” Tars says, “so there must be other reasons.” Earlier in the pandemic, he explains, FEMA was ponying up 75 percent – and some “people still weren’t taking advantage of it. . . refusing all that federal funding,” he says. “The only reason it could be . . . is if you don’t believe the people you’d be helping are entitled to that help.” He thinks that getting people into shelter for even a limited time could change a lot of lives.
“If you can get your entire homeless population off the streets for at least six months, that’s potentially transformative,” Tars says. “They can apply for jobs, make medical appointments.” Even a half year in shelter “could produce significant long-term results. The pandemic is terrible,” he says, but “the silver lining could be that it really transforms how we approach homelessness.”