Recent United States (US) Supreme Court and Ninth Circuit Court of Appeals (Ninth Circuit) decisions have considered the constitutionality of local government regulations related to sitting, sleeping, or lying outside on public property.
Martin v. City of Boise.
In 2018 the Ninth Circuit issued the Martin v. City of Boise (Martin) opinion holding that the Eighth Amendment of the US Constitution (Eighth Amendment) prohibited the imposition of criminal penalties against homeless individuals for sitting, sleeping, or lying outside on public property when no alternative shelter was available to them. The Eighth Amendment provides that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
In 2019 the US Supreme Court denied a petition by the City of Boise to review Martin, leaving in place the Ninth Circuit ruling. Under Martin, some local governments faced injunctions prohibiting them from enforcing their anti-sitting, sleeping, lying, or camping ordinances against homeless individuals when the number of homeless individuals in the jurisdiction exceeded the number of practically available shelter beds.
City of Grants Pass v. Johnson.
In 2024 the US Supreme Court issued the City of Grants Pass v. Johnson opinion, overruling Martin. The municipal code of the City of Grants Pass in Oregon contained several provisions that prohibited sleeping on the streets or camping in parks. After homeless individuals living in Grants Pass sued the city, a district court entered a Martin injunction prohibiting Grants Pass from enforcing its laws against homeless individuals in the city.
The district court concluded that the city's enforcement of its anti-camping and anti-sleeping ordinances violated the Eighth Amendment to the extent that these laws prohibited homeless individuals from taking necessary minimal measures to keep themselves warm and dry while sleeping when there were no alternative forms of shelter available. The Ninth Circuit affirmed the district court's decision, but the US Supreme Court reversed, holding that the enforcement of generally applicable laws regulating camping on public property does not constitute cruel and unusual punishment as prohibited by the Eighth Amendment.
Capitol Building Lands.
All lands granted to the state by the federal government for the purpose of erecting public buildings at the state capitol are known and designated as "capitol building lands." Such lands, or the timber or materials thereon, may only be sold with the consent of the Board of Natural Resources, and only in the manner as provided for public lands and materials thereon.
Any city or town, code city, or county law that regulates the acts of sitting, lying, sleeping, or keeping warm and dry outdoors, on public property that is open to the public, must be objectively reasonable as to time, place, and manner. "Keeping warm and dry" is defined as using measures necessary for an individual to survive outdoors, given the environmental conditions, but does not include using any measure that involves fire or flame.
It is an affirmative defense to a charge of violating such a law that the law is not objectively reasonable. Objective reasonableness must be determined based on the totality of the circumstances. In determining objective reasonableness, special consideration must be given to the impact of the law on persons experiencing homelessness.
A person may bring a lawsuit for injunctive or declaratory relief to challenge the objective reasonableness of a law that regulates the acts of sitting, lying, sleeping, or keeping warm and dry outdoors on public property that is open to the public. The lawsuit must be brought in the superior court of the county where the local government that enacted the law is located.
The court may award reasonable attorneys' fees to a prevailing plaintiff if the plaintiff:
Nothing in the bill creates a private right of action for monetary damages for any person.
The bill applies retroactively to all causes of action brought on or after the effective date of the bill, and to all city or town, code city, or county laws existing on or after the effective date of the bill, regardless of when the cause of action arose or when the laws were enacted. In all other respects, the bill applies prospectively.
(In support) This bill is critical for protecting the rights of persons experiencing homelessness in the state. Every person should have a place to sleep and store personal belongings. Everyone is connected to the systemic factors that have led to homelessness, and everyone has a responsibility to do better.
This bill is a middle ground proposal that will preserve each jurisdiction's ability to take care of the unique needs of their communities. It will encourage local governments to enact reasonable regulations while recognizing that policy responses to homelessness need to be flexible and varied.
This bill aligns with the Supreme Court decision in Grants Pass. This bill was based on an Oregon law that was cited in the Grants Pass case as an example of potentially viable local legislation. There has not been an explosion of litigation in Oregon due to that law.
People should not be punished for being homeless, and they should be protected from sweeps that result in the loss of their belongings. Losing belongings only makes it harder for people to get out of homelessness. Local governments should spend their scarce resources on addressing root causes of homelessness by providing systems of support instead of punishing people for being homeless.
Some persons who have experienced homelessness, frequent incarceration, and addiction have been able to break free of the cycle thanks to the system of supports in place in their communities. Most people who are experiencing homelessness are trying to stay in their communities. They should be treated with decency and respect.
(Opposed) Many cities share the bill's goal of ending homelessness but have significant concerns with this bill. As written, this bill will result in unnecessary litigation. If objective reasonableness is not defined more precisely, it will have to be determined through litigation, which will take away from resources that could otherwise go towards reducing homelessness. Cities will have to decide between cutting funding to programs or using their scarce resources to defend their ordinances.
This is not a hypothetical. This bill is based on a law from Oregon. On day one of the effective date of Oregon's law, the City of Portland was sued, resulting in a $175,000 settlement.
This bill will not reduce homelessness. It will worsen it by encouraging cities to continue bad strategies, like encampments. Several studies have shown that the most frequent trigger for loss of housing is social not economic. The vast majority of the unsheltered are single men without children who have endured many years of income below the poverty line prior to losing housing. They have a very high prevalence of untreated addiction and mental illness, as well as physical and cognitive disabilities. They need well-funded residential rehabilitation and vocational programs.
Cities do not simply move people along. Local jurisdictions have invested millions of dollars in services, such as in-patient substance use treatment, repurposing property to provide housing, and hiring community navigators to provide resources to those experiencing homelessness.
Cities should not be forced to turn their public spaces into encampments or hospices. This bill raises significant public safety concerns for urban cities, particularly those with high volume traffic. Local jurisdictions should have the ability to enforce their ordinances. The purpose of these ordinances has never been to criminalize homelessness.
(In support) Representative Mia Gregerson, prime sponsor; Po Leapai, Washington Low Income Housing Alliance; Charles Schaefer, Burien Community Support Coalition; Jazmyn Clark, ACLU of Washington; Sharyl Brown, Jewels Helping Hands; Colleen Hinton; Scott Crain, Northwest Justice Project; Sarah Nagy, Columbia Legal Services; and Chloe Gale, REACH.
James Lovell.
The substitute bill requires that any state law that regulates the acts of sitting, lying, sleeping, or keeping warm and dry outdoors on any capitol building lands that are open to the public to be objectively reasonable as to time, place, and manner, and creates a private cause of action for injunctive or declaratory relief to challenge the objective reasonableness of such a law.
The substitute bill specifies that the objective reasonableness requirement applies not only to the local or state laws themselves, but also to the enforcement of any such local or state laws regulating the acts of sitting, lying, sleeping, or keeping warm and dry outdoors on public property that is open to the public. The substitute bill defines city or town, code city, or county "laws" to include any city or town, code city, or county ordinances, policies, rules, regulations, or other official controls for the purposes of the bill, and defines "state law" to include any state law, policies, rules, regulations, or other official controls.
The substitute bill specifies that objective reasonableness must be determined through an assessment of the totality of the circumstances and must consider:
The substitute bill requires a court to give special consideration to the following factors when determining whether a local law or enforcement of such law is objectively reasonable in an action brought under the bill:
(In support) Washington is facing a housing crisis, and the need is outstripping available shelter space. Unsheltered homelessness not only creates costs for local governments, but also for people living outside. The bill would protect local governments from frivolous lawsuits while still creating reasonable sidebars around local government actions to address encampments. Legal experts recommended not defining "objectively reasonable." Not having a definition allows local governments to tailor their ordinances for their local circumstances and still allow for reasonable regulations to maintain public spaces and protect all residents. There is no one-size-fits-all solution to this problem. This approach was deemed a viable option by the Supreme Court in their Grants Pass decision.
People living outside are doing their best to survive. They are some of the most vulnerable residents in Washington. Public spaces are often some of the only safe spaces available to them. Incarcerating homeless people and levying fines are not good solutions, but instead criminalize poverty. Arresting people makes things worse, as it resets homeless individuals when they are trying to progress towards stability. It punishes people for having nowhere to go. Arrests are also expensive. Local governments should focus on providing resources for homeless individuals.
This bill would not be as expensive as local governments state. In Oregon, only two cases have been brought forward. Courts would not be allowed to award damages. It does not create any state costs.
(Opposed) This bill does not provide a solution for local governments but instead will divert resources away from addressing homelessness. The cost of dealing with litigation and paying for attorneys fees would be considerable. In Oregon, where a similar bill was passed, cities have been sued and settled for hundreds of thousands of dollars. Rural cities do not have sufficient resources to address multiple lawsuits. Cities are already investing their own general resources into addressing homelessness. The state should further invest in homeless services and focus on providing care, rather than passing this legislation and opening the door to litigation.
The "objectively reasonable" standard set in the bill will not provide clarity or consistency. Laws across the state will be inconsistent. It will create a higher standard than what is in current law. It is vague and will result in fact-specific decisions. Officers and city officials will not have clear guidance. The standard is based on police brutality lawsuits, which does not overlap with encampment regulations.
Cities and local governments have tried not intervening with homeless encampments, which resulted in threats to community safety. Unregulated encampments result in higher rates of crime and drug use, including overdoses. When people live on the streets in downtown areas or other desirable neighborhoods, it has a negative impact on community safety, economic development, and livability for residents. People sleeping on sidewalks can block entrances to buildings and cause disturbances for neighbors. Prior court decisions made it so that cities were unable to act. Now that the Supreme Court has given cities the option, residents would like cities to work to ban encampments. In Spokane, many residents voted in favor of banning encampments in certain areas. This bill would override the will of the voters in Spokane.
This legislation is performative. Other areas have addressed homelessness successfully because they do not pretend that homelessness is not a problem. In some cases, homeless individuals do not want to accept offers of shelter. There are shelter beds available, but unsheltered people are not taking them. While it is important to treat others with dignity and compassion, the proposed approach under the bill will not make the situation better. Compassion requires accountability.
(In support) Representative Mia Gregerson, prime sponsor; Councilmember Lindsey Schromen-Wawrin; Sharyl Brown, Jewels Helping Hands; Sarah Nagy, Columbia Legal Services; Fadi Assaf, Northwest Justice Project; Cat Munsen, Real Change Homeless Empowerment Project; John Boyd; and Michele Thomas, Washington Low Income Housing Alliance.