Tuesday, December 17, 2019 by Andrew Weber

Supreme Court passes on Boise camping ban case, opening up Austin’s rules to lawsuits

The U.S. Supreme Court declined to hear a challenge to a ruling that found a ban against camping in public in Boise, Idaho, is unconstitutional.

The case against Boise’s ban on camping inspired, in part, the city of Austin’s decision to scale back its bans on camping and resting in public earlier this year. The justices’ non-decision could open up Austin to lawsuits over its ordinances.

The Boise suit was first filed in 2009 by a handful of homeless people who alleged that ticketing people for sleeping outdoors when the city did not have enough shelter space was unconstitutional. In 2014, the city retooled its rules to prohibit ticketing when shelters were full. But the 9th U.S. Circuit Court of Appeals said that wasn’t enough and that the ban on sleeping outdoors was unconstitutional.

The Supreme Court’s decision Monday leaves the lower court ruling in place and effectively prohibits camping bans in the 9th Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Mayor Steve Adler said the decision is in line with the city’s overall strategy on homelessness.

“Today’s Supreme Court action in the Boise case supports the city’s focus on housing vulnerable people rather than criminalizing their activity,” he said in a statement to KUT. “It’s hard work we’re doing to provide housing and services for those experiencing homelessness but it’s the right, and required, thing to do and we’ll get there.”

In June, Austin City Council decriminalized camping and resting in public unless doing so presented a threat to public health or safety. City attorneys, Council members and advocates supporting the move cited the Boise case as reasoning to rescind the bans because Austin doesn’t have enough shelter beds.

That decision led to more visible encampments throughout the city, which, opponents say, led to an increase in public drug use and unsafe behavior. The city maintains the rules merely made people sleeping on the street more visible, though it did reinstate some bans in October after Gov. Greg Abbott threatened state intervention.

Ultimately, that wasn’t enough for Abbott, who directed state officials to clean up underpasses with encampments.

Austin attorney Angelica Cogliano unsuccessfully challenged the city over its ordinances on behalf of a homeless client last year. She says the high court’s decision to pass on hearing the case is an endorsement of sorts.

“Because, historically, the Supreme Court (upholds) local laws and local ordinances, the fact that they aren’t choosing to review it at this time is kind of more an endorsement than it would have been otherwise,” she said.

The ACLU of Texas filed a similar lawsuit against Houston’s camping ban in 2017. As the case was wending its way through the 5th U.S. Circuit Court of Appeals, the ACLU withdrew its complaint after Houston rewrote its ordinances to require police to direct homeless people toward housing resources if shelters are full.

Cogliano says Austin’s ordinances, which were revised in October, provide similar direction, but it’s not expressly written into the city code. That lack of specificity could open up Austin to a lawsuit.

“Theoretically, they could be challenged as unconstitutional now,” she said. “So it kind of gives a little more permission to judges to say that … these ordinances are unconstitutional until the housing is actually set up and created for the people here in Austin that are experiencing homelessness.”

Earlier this year, Texas Attorney General Ken Paxton signed a friend of the court brief in support of Boise’s ban. The brief argued the decision against it “swung a wrecking ball through states’ rights under the Tenth Amendment to protect public health and safety and to fashion their criminal laws.”

KUT reached out to the Texas attorney general’s office for this story, but has not yet heard back.

This story was produced as part of the Austin Monitor’s reporting partnership with KUT. Photo by Julia Reihs/KUT.

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