Issues to Watch

Arrested for being Homeless: Anomaly or Reality?


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Arrested for being Homeless: Anomaly or Reality?

Tiffany Ashton*

Being homeless in America means consistently worrying about finding safe and legal shelter for the night.  Statement of Interest of the United States at 2, Bell v. City of Boise, 993 F. Supp. 2d 1237, No. 1:09-cv-540-REB (D. Idaho 2014).  In 2014, “over 42% of homeless individuals slept in unsheltered, public locations—under bridges, in cars, in parks, on sidewalks, or in abandoned buildings.”  Id. at 2.  While these places may be unsafe and may put the homeless at a higher risk of being involved in crime, those individuals are also putting themselves legally at risk of arrest.  Id. at 3 (citing Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006) (vacated after settlement, 505 F.3d 1006 (9th Cir. 2007))).  Cities have begun to enact ordinances that make it illegal for individuals to sleep outside.  Id. at 9 (citing Jones, 444 F.3d 1118; Johnson v. City of Dallas, 860 F. Supp. 344, 350 (N.D. Tex. 1994); Pottinger v. City of Miami, 810 F. Supp. 1551, 1563 (S.D. Fla. 1992)).  Compliance with the cities’ ordinances is increasingly difficult for a homeless person turned away from multiple shelters for lack of space on any given night.  Id. at 12.  In a recent case, Bell v. City of Boise, 993 F. Supp. 2d 1237 (D. Idaho 2014), homeless plaintiffs in Idaho are challenging the city’s anti-camping and disorderly conduct ordinances as cruel and unusual punishment in violation of the Eight Amendment.

Homelessness is an epidemic that is becoming more visible in communities within the United States.  Emily Badger, It’s Unconstitutional to Ban the Homeless from Sleeping Outside, the Federal Government Says, Wash. Post (Aug. 13, 2015), https://www.washingtonpost.com/news/wonk/wp/2015/08/13/its-unconstitutional-to-ban-the-homeless-from-sleeping-outside-the-federal-government-says/.  On any given night, over half a million individuals in the United States may be sleeping in shelters or on the streets.  U.S. Dep’t of Hous. and Urban Dev., 2014 Annual Homeless Assessment Report (AHAR) to Congress 1 (2014), https://www.hudexchange.info/resources/documents/2014-AHAR-Part1.pdf.  These individuals include families, children, the elderly, veterans, addicts, victims of domestic violence, and individuals with both physical and mental health disabilities.   Statement of Interest of the United States, supra, at 2.  Many became homeless after the downturn and collapse of the economy, when their job status changed to underemployed or unemployed.  U.S. Conference of Mayors, 2014 Hunger and Homelessness Survey 27 (2014), http://www.usmayors.org/pressreleases/uploads/2014/1211-report-hh.pdf.  To make matters worse, with the rise in the homeless population, there has been a decrease in funding and available shelters, making communities unable to accommodate the influx of homeless individuals.  See U.S. Interagency Council on Homelessness, Opening Doors: Federal Strategic Plan to Prevent and End Homelessness 10 (2010), http://usich.gov/PDF/OpeningDoors_2010_FSPPreventEndHomeless.pdf .  In Bell v. Boise, the plaintiffs are challenging Boise’s ordinances, stating that the lack of available shelters should not place them at risk of being arrested when they are forced to find more public means of shelter for the night.  Bell, 993 F. Supp. 2d at 1237.

Homeless individuals in Boise, Idaho sued the city of Boise, the city’s police department, and the chief of police.  Id. at 1238.  The plaintiffs claim that the city’s enforcement of its anti-camping and disorderly conduct ordinances violate their constitutional right to be free from cruel and unusual punishment in light of the inadequate shelter space to accommodate the homeless population in Boise.  Statement of Interest of the United States, supra, at 6.  The ordinances prohibit using public property as a temporary or permanent dwelling between sunset and sunrise.  Id. at 3 n.7.  The plaintiffs note that the ordinances are simply “harassing homeless individuals” and criminalizing homelessness.  Bell, 993 F. Supp. 2d at 1240.  The city contends that they are merely regulating certain forms of camping and disorderly conduct.  Statement of Interest of the United States, supra, at 12.

The Department of Justice (DOJ) issued a statement of interest expressing its opinion in Bell v. Boise and took a stance on a divided issue in the nation’s district courts.  Id. at 8.  The central debate is expressed by the two parties in this case: The plaintiffs claim that these ordinances are criminalizing their status as members of the homeless population, while the defendants claim that the ordinances are criminalizing conduct irrespective of one’s status as homeless.  Id. In the statement, the DOJ agreed with the plaintiffs’ notion that the court should follow the framework set forth in Jones v. City of Los Angeles in analyzing these types of claims.  Id. at 10.  This framework views whether complying with an ordinance is possible for individuals in the homeless population.  Jones, 444 F.3d at 1135–37.  In Jones, the court found that anti-camping ordinances, like the ones present in Bell, may violate the Eighth Amendment on nights where there is inadequate housing for the homeless population.  Id.  For example, if there are not enough beds to accommodate the entire homeless population, or there are qualifications that categorically disqualify certain groups of the homeless population from beds in shelters, it would be impossible for homeless persons to comply with the ordinance.  Id.  Moreover, enforcement of these ordinances would be cruel and unusual punishment and a violation of the Eighth Amendment. Id.  The DOJ argues that the Boise ordinances criminalize an individual’s status as homeless, and not, as the defendants claim, their conduct of standing or sleeping outside.  Statement of Interest of the United States, supra,  at 16.  Further, the DOJ maintains that many in the homeless population would face criminal liability under the ordinances simply as a consequence of this status.  Id.

The court in Jones discussed the impracticality of imposing these anti-camping ordinances on the homeless.  Jones, 444 F.3d at 1135–37.  Sleeping is a “universal and unavoidable consequence of being a human.”  Id. at 1135. As the DOJ notes, the Jones court explained that necessities of life that were once conducted in private, including sleeping, must be performed in public once an individual becomes homeless.  Id. at 1136.  Human beings cannot remain in continuous motion.  Id.  It is simply impossible for individuals to avoid taking a break from the rigors of daily life.  Id.  Human beings are able to rejuvenate themselves and function normally after periods of sitting, lying or sleeping.  Id.  These activities are unavoidable in everyday life and are necessary for human survival.  Statement of Interest of the United States, supra, at 12.  Implementing these anti-camping ordinances, the Jones court noted, punishes the homeless for conduct that is essential to human survival and cannot be performed except in public spaces when there is inadequate shelter space.  Id. at 11–12. The DOJ indicates that punishing conduct that is required as a part of human life would be a violation of the Eighth Amendment.  Id. at 13.

No individual should be punished because they are homeless.  Cities who have enacted “anti-camping ordinances” come close to criminalizing homelessness and certain behaviors essential for human survival.  Id. at 11–12.  The plaintiffs in Bell v. Boise are challenging Boise’s anti-camping ordinance and claiming that they should not have to worry about being arrested when there is inadequate shelter space and homeless persons must sleep on the streets or in public places.  Bell, 993 F. Supp. 2d at 1237.  In its statement, the DOJ sides with the plaintiffs in the case, noting that the enforcement of these ordinances on nights when there is inadequate shelter space is cruel and unusual punishment under the Eighth Amendment.  Statement of Interest of the United States, supra, at 16.  The DOJ further urges the court to use Jones in its analysis of Bell to evaluate Boise’s ordinances.  Id. at 12.  As the court makes a decision in Bell, they must determine whether, on certain nights, homelessness itself will become a crime.  Id. at 16.


Tiffany is a second year law student at the University of Baltimore School of Law. She is currently serving as Staff Editor for Law Review, Secretary of the Black Law Student’s Association, Treasurer of the Family Law Association and Law Scholar for Professor Ram. She is passionate about family law and children’s issues.

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