Policy Text
Roll Call Training Bulletin
Produced by: Kurt Wendlenner, Deputy City Attorney
Prepared b y: Ofc Mark Scurria Daniel Hahn, Chief of Police
Volume 63
September 7th, 2018
Martin v. City of Boise
INTRODUCTION
On September 4, 2018 the 9th Circuit Court of Appeal s ruled that the Eight Amendment to the United States
Constitution prohibits cities from prosecuting people for sleep ing in public when shelter beds are not “practically
available” – thereby expanding the concept of “unavailable” to encompass more than just physical capacity and space at
shelters.
Previously, the Sacramento Police Depa rtment was advised to only cite i ndividuals under Sacramento City Code
sections 12.52.030 and 12.52.040 when the citing officer (i ) contemporaneously confirmed that a shelter bed was
available; (ii) offered to transport the individual to the bed; and (iii) the individual rejected the bed. In light of the Martin
v. City of Boise ruling, SPD is now advised to only cite individua ls under SCC sections 12.52.03 0 and 12.52.040 when the
citing officer (i) contemporaneously confirms that a shelter bed is available; (ii) offers to transport the individual to the
bed; (iii) confirms that there are no limitations to the individua l’s (continued) use of the bed; and (iv) the individual still
rejects the bed.
BACKGROUND
The plaintiffs-appellants in the Martin case were current or former residents of the City of Boise (“the City”), who
are, or who have been, recently homeless. Plaintiffs alle ge that, between 2007 and 2009, they were cited by Boise police
for violating one or both of two city ordinances: (i) Boi se City Code § 9-10-02 (the “C amping Ordinance”), which makes
it a misdemeanor to use “any of the streets, sidewalks, parks, or public places as a camping place at any time.”; and (ii)
Boise City Code § 6-01-05 (the “Disorderly Conduct Ordina nce”), which bans “[o]ccupying, lodging, or sleeping in any
building, structure, or public place, whether public or privat e ... without the permission of the owner or person entitled to
possession or in control thereof.”
Plaintiffs sought retrospective relief for their previous citations, and two of the plai ntiffs additionally sought
declaratory and injunctive relief against future prosecution, b ecause they alleged that they expected to be cited under the
ordinances again in the future.
At the time of the ruling, there were th ree shelters in Boise. One shelter was open to men, women and children of
any faith. The other two shelters were run by Christian nonprofit organizations – one of which was only open to men,
while the other was open to women and children only. The shelters also had various time and duration limitations.
After litigation began, the Boise Police Department promulga ted a new order that prohibited enforcement of either
the Camping Ordinance or the Disorderly Conduct Ordi nance against any homeless person on public property on any
night when no shelter was available. BPD implemented the order through a two-step procedure known as the “Shelter
Protocol.”
Under the Shelter Protocol, if any shelter in Boise re ached capacity on a given night, that shelter would notify
BPD of the same, at roughly 11:00 pm. Each shelter had discr etion to determine whether it was full, and the police had no
other mechanism for gauging shelter capacity.
Roll Call Training Bulletin
Produced by: Kurt Wendlenner, Deputy City Attorney
Prepared b y: Ofc Mark Scurria Daniel Hahn, Chief of Police
Volume 63
ANALYSIS
In Martin , the 9th Circuit held that because “ ‘the Eight h Amendment prohibits the state from punishing an
involuntary act or condition if it is the un avoidable consequence of one's status or being . . .’ ”, “the Eighth Amendment
[also] prohibits the imposition of criminal penalties for sitti ng, sleeping, or lying outside on public property for homeless
individuals who cannot obtain shelter.” The Court went on to explain that “ any ‘conduct at issue here is involuntary and
inseparable from status – they are one and the same, given th at human beings are biologically compelled to rest, whether
by sitting, lying, or sleeping.’ ” The 9th Circuit concludes by stating that “as long as there is no option of sleeping indoors ,
the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false
premise they had a choice in the matter.”
The Court observed that,
[In Boise] the Camping Ordinance is frequently enforced against homeless individuals with some
elementary bedding, whether or not any of the ot her listed indicia of ‘camping’ – the erection of
temporary structures, the activity of cooking or maki ng fire, or the storage of personal property – are
present. For example, a Boise police officer testified that he cited plaintiff Pamela Hawkes under the
Camping Ordinance for sleeping outside ‘wrapped in a blanket with her sandals off and next to her,’
for sleeping in a public restroom ‘with blankets,’ and for sleeping in a park ‘on a blanket, wrapped in blankets on the ground.’ The Camping Ordinance th erefore can be, and allegedly is, enforced against
homeless individuals who take