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“Human Beings Are Biologically Compelled to Rest” Court Notes

“Human Beings Are Biologically Compelled to Rest” Court Notes

Last updated on: December 17, 2019 at 9:57 am by Libby Anne

“Human Beings Are Biologically Compelled to Rest” Court Notes 2019-12-17T09:57:58-04:00 Libby Anne

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“Supreme Court Won’t Hear Case On Ban Against Homeless Sleeping In Public Spaces,” reads an NPR headline in my feed reader, and all I can think is, how can we live in a world that is this cruel? If homeless people can’t sleep in public spaces, where are they supposed to sleep? Being homeless by definition means that one does not have a private place in which to sleep. Sure, there are homeless shelters, but they’re not always available—and homeless people sometimes have reasons for avoiding one or another.

The case stems from a lawsuit filed nearly a decade ago. A handful of people sued the city of Boise for repeatedly ticketing them for violating an ordinance against sleeping outside. While Boise officials later amended it to prohibit citations when shelters are full, the 9th Circuit eventually determined the local law was unconstitutional.

In a decision last year, the court said it was “cruel and unusual punishment” to enforce rules that stop homeless people from camping in public places when they have no place else to go. That means states across the 9th Circuit can no longer enforce similar statutes if they don’t have enough shelter beds for homeless people sleeping outside.

In other words, the original local statute banned sleeping outside even when shelters were full. Where exactly are homeless people supposed to sleep if shelters are full? The city only changed the rule so that people sleeping outside would not be ticketed if shelters were full after they got in trouble for it. This shows you just how much the city actually cared about homeless people’s wellbeing, and suggests that the object was purely about keeping the streets clear of homeless people, for the benefit of everyone else.

Here’s the first problem, though. Even when shelters aren’t full, they’re not always open to everyone. Some shelters have religious requirements, or other requirements that may result in someone losing their spot if they do not follow specific rules. Some shelters have limits on the number of days homeless people are allowed to use them. This was case in Boise—the plaintiffs who sued had been ticketed for sleeping outside after being denied access to shelters based, in some cases, on having used up the maximum number of days they were allowed to stay there without entering rigorous religious discipleship programs.

Fining people for sleeping outside when they do not have access to anywhere else to sleep is like fining them for existing. And interestingly, that turns out to be exactly what the 9th circuit concluded:

This principle compels the conclusion that the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter. As Jones reasoned, “[w]hether sitting, lying, and sleeping are defined as acts or conditions, they are universal and unavoidable consequences of being human.” Jones, 444 F.3d at 1136. Moreover, any “conduct at issue here is involuntary and inseparable from status — they are one and the same, given that human beings are biologically compelled to rest, whether by sitting, lying, or sleeping.” Id. As a result, just as the state may not criminalize the state of being “homeless in public places,” the state may not “criminalize conduct that is an unavoidable consequence of being homeless — namely sitting, lying, or sleeping on the streets.” Id. at 1137.

Now, the ninth circuit ruling is still circumscribed.

Our holding is a narrow one. Like the Jones panel, “we in no way dictate to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets . . . at any time and at any place.”Id. at 1138. We hold only that “so long as there is a greater number of homeless individuals in [a jurisdiction] than the number of available beds [in shelters],” the jurisdiction cannot prosecute homeless individuals for “involuntarily sitting, lying, and sleeping in public.” Id. That is, 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.

This is too narrow, in my opinion. I’m uncomfortable with fining people for sleeping on the street when shelters are closed to them (whether or not this is because the shelters are full), yes, but I’m also uncomfortable with forcing people to sleep in shelters. Not all homeless shelters are well run or safe, and this is a vulnerable population we’re talking about here. What if a person has been harmed or abused by a shelter volunteer or employee—or by another homeless person in a shelter?

Frankly, the government forcing people into a specific building (or set of buildings) for a certain number of hours without trial or conviction of any offense feels like a violation of people’s civil liberties. The courts may not be addressing this because it there will always be people for whom shelters are closed, making it moot. Still, some have used the term “concentration camp” to describe the Trump administration’s purported plans to limit and circumscribe the areas homeless people are allowed to exist in places like LA.

Can we talk about the fact that ticketing and fining homeless people is a terrible idea? That’ll totally improve their lives! Add a fine and maybe a court date to people who are already struggling with basic things like finding a place to sleep or not having money for their next meal. Fines and ticketing are so regressive in general, adding extra fines and tickets to homeless people in particular is nothing short of cruel.

Shelters are important, but fining homeless people for sleeping outside rather than in a shelter is not the answer. Fining homeless people in general is not the answer. Fining homeless people for existing makes it only harder for them to get back on their feet. Can we move away from fines as an answer in general?

Look, I get it. It can be disconcerting to have homeless people camped out on the street or sleeping on benches. It’s uncomfortable. (You know what ise more uncomfortable? Being homeless.) But treating this as the problem rather than as the symptom of an underlying problem is wrongheaded in the extreme.

Trying to fix homelessness by banning people from sleeping in public places is like trying to cure poverty by banning people from panhandling. You may no longer see the symptom of the problem, but it’s still—wait, that’s been tried. Some localities have banned panhandling. Let me attempt that again:

Trying to fix homelessness by banning people from sleeping in public places is like trying to fix children’s absenteeism from school by taking their parents to court for truancy—oh, wait. It turns out we do a lot of criminalizing people for symptoms of underlying problems rather than addressing the underlying problems.

You know would be a better answer? Having the city hire more social workers or create programs designed to identify and address the underlying cause of homeless individuals’ situations. In other words, local authorities—and the state and federal government as well—could approach homelessness as a symptom of an underlying problem rather than as the problem to be solved. It is possible to imagine it, if nothing else.

I’ll finish with this quote from Anatole France, a French poet who lived a century ago:

“The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

It seems this is not a new problem.

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