Sleeping on the Streets

This undated file photo shows the entrance to an alley known as Cooper Court, a former homeless camp in Boise, Idaho. A federal appellate court says cities can’t prosecute people for sleeping on the streets if they have nowhere else to go.

BOISE — It’s official: Boise wants to take the fight over its camping ordinance to the U.S. Supreme Court.

On Thursday, the city of Boise filed a petition for a writ of certiorari requesting the nation’s highest court hear the city’s long-standing fight about its policy banning residen tf ts from sleeping outside. A decision on whether or not the case will be heard is expected after October.

A three-member panel of judges for the U.S. 9th Circuit Court of Appeals ruled against the city in Martin v. City of Boise in September. The judges said any policy that prevents homeless residents from sleeping on the street is a violation of the Constitution’s protection against cruel and unusual punishment.

Six Boise residents filed the suit in 2009, which alleged the city had “criminalized” homelessness by issuing tickets to those without shelter for sleeping outside when they had no other place to turn when shelters were at capacity, according to court documents. In 2014, Boise changed its policy to issue tickets only when there was more room in overnight shelters.

This move to continue pushing this legal fight up to higher and higher courts has drawn scrutiny from some homelessness advocates who say this move punishes those who cannot go to emergency shelters, but have no place to go. However, the city says if the 9th Circuit Court of Appeals decision is allowed to stand, it would mean local governments would be unable to address health and safety issues caused by large encampments of those experiencing homelessness.

“Cities, like Boise, who are already providing forward-thinking services to those experiencing homelessness, must have all the tools available to respond to the public health and safety dilemmas created by public encampments,” Mayor Dave Bieter said in a press release. “If the 9th Circuit’s ruling is allowed to stand then cities will not have the tools they need to prevent a humanitarian crisis on their own streets.”

The residents experiencing homelessness that filed the suit will be represented by Idaho Legal Aid Services. Attorney Howard Belodoff said his organization will keep up its decade-long fight in court, but he is frustrated the city continues to appeal the case.

“They apparently have unlimited funds to pursue appeals in the case instead of resolving it,” he said. “They’re entitled to do that, I guess, but I would think there are some better uses for their time and money.”

This is not Boise’s first time tangling with advocates over residents’ rights to camp on the street. At the end of 2015, the city removed more than 100 residents from a tent encampment called Cooper Court outside of Interfaith Sanctuary near River Street. City officials say the encampment blocked public right-of-way, and posed a public health problem. On the other hand, advocates say the encampment was a place of last resort for those without a roof over their head and removing the residents during winter put them in danger.

Since 2014, the city of Boise’s policy has been to suspend ticketing for camping in the city when there is no room in local homeless shelters. In 2018, a total of 30 citations for camping were written in Boise. In 2017, only six citations were written.

Los Angeles-based lawyer Theane Evangelis will be leading the city’s to the Supreme Court. City spokesman Mike Journee said earlier this year that the city signed a contract with Evangelis for $75,000 to request the Supreme Court take the case. If it is heard, the firm will get another $225,000.

Journee cited Evangelis’ experience with the Supreme Court and other high-profile cases — including her time as a clerk for Justice Sandra Day O’Connor in 2004 — as a big reason the city chose her team to pursue the case. He said the city was able to negotiate a discounted rate for the contract.

Last fall, Boise City Council voted to increase its contract for the case with local firm Moore Elia Kraft & Hall LLP to $400,000, up from $200,000. It was the second time the contract has been increased since council voted to award it to the firm for $50,000. Funds to pay for this will be taken out of the city’s risk management fund, into which departments across the city contribute.