The Constitutionality of Homeless Encampments

Authority Alert: This article has two parts. The first part, written by me, is maybe two pages in length. The second part is written by the US government and redacted by me, and is longer.


The city of Berkeley did it again. They raided a homeless encampment, and drove it off public land. The historical irony, this time, is that what the city did was illegal, directly in violation of the US Constitution. The police acted against the law of the land.

A most recent decision by the Ninth Circuit Court has found that making a homeless encampment on public land illegal when a city cannot provide shelter is in violation of the 8thAmendment.

The story goes back to 2015, to a suit filed by homeless people in Boise, Idaho, against the city. Name: Bell vs. City of Boise. It was brought by several long-term homeless residents of Boise who had been ticketed, fined, arrested, thrown in jail, convicted of the crime of being homeless, over a course of years. Their suit said that homelessness cannot be considered a crime under the 8thAmendment of the US Constitution. And they were seeking damages (aka money) in restitution, as well as an injunction against the city that they would no longer be attacked or arrested.

In that suit, the Dept of Justice under Obama had filed an amicus brief agreeing with the homeless, and arguing that because homelessness was a condition, a status, and not a conduct, it could not be punished under the 8thAmendment – which prohibited “cruel and unusal punishment.” Because the city’s homeless residents were human beings, and therefore had to sleep as part of their “existence” as human beings, sleeping could not be prohibited. If a homeless person had no where else to sleep but on public property, they could not be barred from doing so unless the city could provide another place for them to sleep – namely, shelter.

What this implies with respect to the 8thAmendment is that local governments are limited in what they can declare illegal because limited in what they can punish. Sleeping could not be punished since it was part of being human, and thus had to be categorized as part of human status. It could not be punished as conduct unless there were alternatives, and the person had a choice. This made police raids on homeless emcampments on public land illegal if the city could not provide shelter.

The case went through many twists and turns. At one point, the government’s argument became moot because a settlement was arrived at between Boise and the plaintiffs. But then it wound up in court again. And for a second time, made its way to the Ninth Circuit Court of Appeals, which is where it has been, up until Sept. 4, 2018. At that point, the Ninth Circuit declared that if a city could not provide shelter for its homeless residents, then it had to leave them to camp and sleep on public land.

Justice Berzon, the Circuit Judge who wrote the decision, begins by saying: “We consider whether the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to. We conclude that it does.” He continues later on: “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.”

This decision was issued on Sept. 4, 2018. The very next day, Sept. 5, the Berkeley PD raided a homeless encampment on the public land in front of the Old City Hall, thus imposing penalties on the members of the encampment, against the US Constitution. The very next day!!! At the moment of the raid, the city had no other shelter for them. And still doesn’t. Do we live in a law-based society? Or what?

What we have learned, over the last couple of years, is that the homeless are capable of organizing their own communities in responsible and collective fashion, to provide themselves with a means of surviving the environment, the psychological dislocation of isolation and loneliness, and the hostility from various sectors of “civil” society. Since those on the city council now recognize that this city cannot resolve the homeless crisis by constructing new housing, we as a society need to find ways to work with and enhance the ability of the homeless to take care of themselves. That means accepting the existence of encampment communities. This society’s prioritization of property rights over human rights have made this inevitable. What this latest Ninth Circuit Court decision does is make our efforts consistent with the fundamental law and ethics of this land, namely, the Constitution.

The 8thAmendment Argument

Being of a philosophical frame of mind, the part of all this that interests me most is the government’s argument concluding that those raids are illegal. It interests me also in terms of my passion for justice, and my observations that people (and the environment) do not get justice unless there is a law in place that provides for it. There is something profoundly wrong with that, but that involves political discussion at a different level. Here, I present the government’s original argument, so that people can get a taste of what the government is thinking – or, at least, was thinking under Obama.

Below is a redacted version of the governments original brief of 2015. I’ve simly taken out footnotes and references in the interest of shortening the text. This is also to make the text more palatable to those who would have trouble wading through all the legal citations and rhetoric. But the form and substance of the government’s original argument remains intact.

For those who have no trouble with legalese, and would like to look at the original text, to study the precedents and citations mentioned, the name of the case is Bell vs. City of Boise, its trial number is 1:09-cv-00540-REB, held on 08/06/15. And the full text of the brief can be found here.

There is a “precedent case” mentioned in the brief (and redacted out). It is “Jones vs. City of Los Angeles.”

The link for the recent decision of the Ninth Circuit Court on Sept. 4, 2018.

Steve Martinot


US Amicus Brief (redacted for shorter length)
Civil Action No. 1:09-cv-540-REB
Bell vs. Boise, Idaho


On any given night in the United States, half a million people are likely to be experiencing homelessness. …These individuals must find space in a public shelter or sleep on the street. For many homeless people, finding a safe and legal place to sleep can be difficult or even  impossible. In many cities, shelters are unable to accommodate all who are homeless.

In [the case before us], Plaintiffs are homeless individuals who were convicted of violating certain city ordinances that prohibit camping and sleeping in public outdoor places.7 They claim that the  City of Boise and the Boise Police Department’s (“BPD”) enforcement of these ordinances  against homeless individuals violates their constitutional rights because there is inadequate  shelter space available in Boise to accommodate the city’s homeless population. Plaintiffs argue  that criminalizing public sleeping in a city without adequate shelter space constitutes criminalizing homelessness itself, in violation of the Eighth Amendment.

The parties disagree about the appropriate framework for analyzing Plaintiffs’ claims.  Plaintiffs encourage the court to follow Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir.  2006) (vacated after settlement, 505 F.3d 1006 (9th Cir. 2007)), which held that enforcement of  anti-camping ordinances may violate the Eighth Amendment on nights where there is inadequate shelter space available for all of a city’s homeless individuals. Defendants, on the other hand, assert that Plaintiffs’ reliance on Jonesis “heavily misplaced, factually  unsupported, and immaterial to this case.”

Because the summary judgment briefing in this case makes clear that there is a significant  dispute between the parties on the applicability of Jonesand conflicting lower court case law in  this area, the United States files this Statement of Interest to make clear that the Jonesframework  is the appropriate legal framework for analyzing Plaintiffs’ Eighth Amendment claims. Under  the Jonesframework, the Court should consider whether conforming one’s conduct to the  ordinance is possible for people who are homeless.


The United States has a broad interest in ensuring that justice is applied fairly, regardless of wealth or status. In 2010, Attorney General Eric Holder launched the Office for  Access to Justice (“ATJ”) at the Department of Justice to address the access-to-justice crisis in  the criminal and civil justice systems.

The United States also has an interest in breaking the cycle of poverty and criminalization.  Numerous federal initiatives are tasked with reducing the criminalization of homelessness and promoting alternatives to incarceration that are more cost-effective, efficient,  and fair.


The “Cruel and Unusual Punishments” Clause of the Eighth Amendment “imposes substantive limits on what can be made criminal and punished as such.” …The Supreme Court has held that laws that  criminalize an individual’s status, rather than specific conduct, are unconstitutional. Robinson v.  California, 370 U.S. 660 (1962).

[In a precedent case in Texas (1968), one judge] did not rest his decision on the status-versus-conduct distinction … but instead … considered the voluntariness, or volitional nature, of the conduct in question. Under this analysis, if sufficient evidence is presented showing that the prohibited conduct was  involuntary due to one’s condition, criminalization of that conduct would be impermissible under the Eighth Amendment.

For the present case [with respect to the homeless] he explained that, “[f]or all practical purposes the public  streets may be home for these unfortunates, … because … they have no place else to go.

[There is] a division among courts on how to analyze claims  regarding enforcement of anti-camping ordinances against homeless individuals. … Some courts have adopted the plurality’s  strict interpretation,  … that the Eighth Amendment limits only the  criminalization of status, not of conduct. … Others have considered the voluntariness of the conduct, and whether the conduct is inextricably linked to one’s status, such that punishing the conduct is indistinguishable from punishing the status.

[In precedent cases], the United States took the position … that criminalizing sleeping in public when no shelter is available violates the Eighth Amendment by criminalizing status. Consistent with the position taken in its previous filings, the United States now urges this  Court to adopt the reasoning of Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006).  Although the Ninth Circuit ultimately vacated its opinion in Jones—pursuant to a settlement  agreement between the parties, 505 F.3d 1006 (9th Cir. 2007), not for any substantive reason— its logic remains instructive and persuasive.

The Jones court considered the enforcement of a Los Angeles ordinance prohibiting  sitting, lying, or sleeping in public.  There, like here (Bell vs. Boise), the court was asked to consider a statute that, on its face, criminalized conduct rather than status. Importantly, the plaintiffs in Jones  presented evidence suggesting that there was an inadequate number of shelter beds available for homeless individuals, so many individuals had no choice but to sleep in public in violation of the city’s ordinance.

The Jonescourt [in LA] found enforcement of the ordinance to be unconstitutional as applied to  the plaintiffs because of inadequate shelter space.  The court based its decision on its conclusion  that, “[w]hether sitting, lying, and sleeping are defined as acts or conditions, they are universal  and unavoidable consequences of being human.” Because sleeping is unavoidable,  the court then considered whether the plaintiffs had a choice to sleep somewhere other than in  public, concluding that they did not:  “for homeless individuals in [Los Angeles’] Skid Row who  have no access to private spaces, these acts can only be done in public.” 1136.  As a result,  the court found that sleeping in public is “involuntary and inseparable from” an individual’s status or condition of being homeless when no shelter space is available. The court concluded that, “by criminalizing sitting, lying, and sleeping, the City  [of Los Angeles] is in fact criminalizing [Plaintiffs’] status.”

Defendants {Boise}assert that reliance on Joneswould be “misplaced, factually unsupported, and  immaterial to this case.” [They]rely on a conduct-versus-status distinction. Defendants’ position is unpersuasive because the Eighth Amendment  analysis is not limited to the plain language of the statute in question. Rather, the  practical implications of enforcing the statute’s language are equally important. Those  implications are clear where there is insufficient shelter space to accommodate the homeless  population:  the conduct of sleeping in a public place is indistinguishable from the status of  homelessness.

It should be uncontroversial that punishing conduct that is a “universal and unavoidable  consequence[] of being human” (having to sleep) violates the Eighth Amendment. It is impossible for individuals to avoid “sitting,  lying, and sleeping for days, weeks, or months at a time . . . as if human beings could remain in perpetual motion.” Once an individual becomes homeless, by virtue of this status certain life necessities (such as sleeping) that would otherwise be performed in private must now be performed in public. Therefore, sleeping in public is precisely the type of “universal and unavoidable” conduct that is necessary for human survival for homeless individuals who lack access to shelter space.

In this way, the Boise anti-camping and disorderly conduct ordinances are akin to the  ordinance at issue in [a precedent case], at least on nights when homeless individuals are—for whatever  non-volitional reason(s)—unable to secure shelter space. When adequate shelter space exists, individuals have a choice about whether or not to sleep in public.  However, when adequate shelter space does not exist, there is no meaningful distinction between the status of being  homeless and the conduct of sleeping in public. If a person literally has nowhere else to go, then  enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.

[An objection has been raised to this approach, namely that it] implicates the knotty concerns with the Cruel and Unusual Punishments Clause becoming “the ultimate  arbiter of the standards of criminal responsibility.”

The Justices in the [precedent case] declined to extend the Eighth Amendment prohibition to the punishment of involuntary conduct because they feared doing so would allow violent defendants to argue that their conduct was “compelled” by any number of “conditions.” … But these concerns are not at issue when, as here, they are applied to conduct that is essential to human life and wholly innocent, such as sleeping.  No inquiry is required to determine whether a person is compelled to sleep; we know that no one can stay awake indefinitely.  Thus, the Court need not constitutionalize a general compulsion defense to resolve  this case; it need only hold that the Eighth Amendment outlaws the punishment of unavoidable conduct that we know to be universal. Moreover, … Its  punishment would serve no retributive purpose, or any other legitimate purpose. [The thrust of this] interpretation of the Cruel and Unusual Punishment Clause is that criminal penalties may be inflicted only if the accused has committed some act [or] has engaged in some behavior which society has an interest in preventing.”

Using this reasoning, the vital question for the Court becomes: Given the current homeless population and available shelter space in Boise, as well as any restrictions on those shelter beds, are homeless individuals in Boise capable of conforming the necessary life activity  of sleeping to the current law?  If not, enforcing the anti-camping ordinances and criminalizing  sleeping in public violates the Eighth Amendment, because it is no different from criminalizing  homelessness itself. …

The realities facing homeless individuals each day support this application of the Eighth  Amendment. … Regardless of the causes of homelessness, individuals remain homeless involuntarily, including children, families, veterans, and individuals with physical and mental  health disabilities.  Communities nationwide are suffering from a shortage of affordable housing.  And, in many jurisdictions, emergency and temporary shelter systems are already underfunded  and overcrowded.

Criminalizing public sleeping in cities with insufficient housing and support for homeless individuals does not improve public safety outcomes or reduce the factors that contribute to homelessness.  As noted  by the U.S. Interagency Council on Homelessness, “[r]ather than helping people to regain  housing, obtain employment, or access needed treatment and service, criminalization creates a  costly revolving door that circulates individuals experiencing homelessness from the street to the  criminal justice system and back.”17  Issuing citations for public sleeping forces individuals into  the criminal justice system and creates additional obstacles to overcoming homelessness.  Criminal records can create barriers to employment and participation in permanent, supportive  housing programs.18 Convictions under these municipal ordinances can also lead to lengthy jail sentences based on the ordinance violation itself, or the inability to pay fines and fees associated  with the ordinance violation.  Incarceration, in turn, has a profound effect on these individuals’ lives.19         Thus, criminalizing  homelessness is both unconstitutional and misguided public policy, leading to worse outcomes for people who are homeless and for their communities.

Conclusion: The Court should adopt the analysis in Jonesto evaluate  Boise’s anti-camping and disorderly conduct ordinances as applied to Plaintiffs in this case.  If the Court finds that it is impossible for homeless individuals to secure shelter space on some  nights because no beds are available, no shelter meets their disability needs, or they have  exceeded the maximum stay limitations, then the Court should also find that enforcement of the ordinances under those circumstances criminalizes the status of being homeless and violates the Eighth Amendment to the Constitution.

Submitted this 6th day of August, 2015.

Sharon Brett
Attorney for the United States of America




Steve Martinot is Instructor Emeritus at the Center for Interdisciplinary Programs at San Francisco State University. He is the author of The Rule of Racialization: Class, Identity, Governance, Forms in the Abyss: a Philosophical Bridge between Sartre and Derrida (both Temple) and The Machinery of Whiteness. He is also the editor of two previous books, and translator of Racism by Albert Memmi. He has written extensively on the structures of racism and white supremacy in the United States, as well as on corporate culture and economics, and leads seminars on these subjects in the Bay Area.