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Janet F. Bell, Brian S. Carson, Craig Fox v. City of Boise; Boise Police Department; and Michael Masterson

July 6, 2011


The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge


Currently pending before the Court are: (1) Defendants' Motion for Summary Judgment (Dkt. 77); (2) Defendants' Motion to Dismiss Plaintiff Smith (Dkt. 80); and (3) Defendants' Motion to Strike (Dkt. 96). All parties have consented to the jurisdiction of a United States Magistrate Judge. Dkt. 16. The Court has carefully reviewed the record; considered the oral argument of counsel at the hearing on this matter; and now enters the following Memorandum Decision and Order granting Defendants' Motion for Summary Judgment (Dkt. 77) and dismissing Plaintiffs' Amended Complaint (Dkt. 53).


Plaintiffs, all currently or formerly homeless individuals residing in Boise, contend that Defendants, including the City of Boise, Boise Police Department, and Chief of Police Michael Masterson, enforce Boise City ordinances against camping and sleeping in public to force the homeless out of Boise.

A. Ordinances

The ordinances at issue are Boise City Code §§ 9-10-02 and 6-01-05(A) (collectively "Ordinances"). Boise City Code § 9-10-02 (the "Camping Ordinance") makes it a crime for any person "to use any of the streets, sidewalks, parks or public places as a camping place at any time." The terms "camp" and "camping" are defined as follows:

[T]he use of public property as a temporary or permanent place of dwelling, lodging, or residence, or as a living accommodation at any time between sunset and sunrise, or as a sojourn. Indicia of camping may include, but are not limited to, storage of personal belongings, using tents or other temporary structures for sleeping or storage of personal belongings, carrying on cooking activities or making any fire in an unauthorized area, or any of these activities in combination with one another or in combination with either sleeping or making preparations to sleep (including the laying down of bedding for the purpose of sleeping).

B.C.C. § 9-10-02.

Boise City Code § 6-01-05(A) (the "Sleeping Ordinance") criminalizes "disorderly conduct," defined to include sleeping in any location without permission of the owner. Specifically, the ordinance prohibits "[o]ccupying, lodging or sleeping in any building, structure or place, whether public or private, or in any motor vehicle without the permission of the owner or person entitled to possession or in control thereof." B.C.C. § 6-01-05(A).

B. Allegations

Plaintiffs are individuals who either are or have been homeless and living in Boise. See Amended Complaint, ¶ 3 (Dkt. 53). All have been cited and convicted under either the Camping Ordinance, the Sleeping Ordinance, or both. Id. Plaintiffs claim that Defendants' policy, custom, and practice of issuing citations to, arresting, and harassing homeless individuals, including Plaintiffs, under Boise City Ordinance §§ 9-10-02 and 6-01-05(A) has the effect of criminalizing homelessness. Id. at ¶ 35.

Plaintiffs contend that Defendants enforce the Ordinances aggressively and selectively against the homeless in order to drive them from the City. Id. at ¶ 23. The premise behind Plaintiffs' claims is that the homeless in Boise have no choice but to be present on the streets during the day and night. Thus, to penalize them for harmless conduct, like sleeping, lying down, or sitting, is essentially penalizing them for nothing more than "being" without a home.

In addition, Plaintiffs contend that the Boise Police Department does not maintain written guidance or training regarding the enforcement of the Camping Ordinance and, as a result, Defendants have a policy and custom of enforcing the ordinance broadly and issue citations for sleeping, lying down, or sitting - basic necessities of life. Id. at ¶ 23.

Plaintiffs further contend that Defendants enforce the Sleeping Ordinance against anyone sleeping in any public place in Boise at any time of the day and night. Id. at ¶ 24.

C. Claims and Relief Requested

Plaintiffs allege four constitutional claims: (1) Defendants' enforcement of the Camping and Sleeping Ordinances against homeless people violates the Eighth Amendment's prohibition against cruel and unusual punishment; (2) Defendants' enforcement of the Camping and Sleeping Ordinances against homeless people violates the equal protection clause by impeding the homeless individuals' fundamental right to travel; (3) the Camping Ordinance violates the due process clause because it is unconstitutionally vague; and (4) the Camping and Sleeping Ordinances violate the due process clause because they are unconstitutionally over-broad as applied to Plaintiffs, who are being punished for what is essentially innocent conduct. Amended Complaint (Dkt. No. 53). Plaintiffs seek declaratory and injunctive relief and monetary damages pursuant to 42 U.S.C. § 1983. More specifically, Plaintiffs' requested relief includes inter alia: (1) an order enjoining Defendants from enforcing the Camping and Sleeping Ordinances against homeless people sleeping or lying down in public; (2) an order compelling the City of Boise to expunge the records of any homeless individuals cited or arrested and charged under the Camping or Sleeping Ordinances; (3) an order requiring reimbursement of any fines paid by or incarceration costs billed to homeless individuals for violation of the Camping and Sleeping Ordinances; and (4) declaratory relief.

D. Status Offense Case Law

The United States Supreme Court has held that applying criminal laws to punish the involuntary status of an individual is unconstitutional. See Robinson v. California, 370 U.S. 660 (1962). In Robinson, the Supreme Court examined the constitutionality of a California statute that criminalized the status of being addicted to drugs. Id. at 666.Treating addiction like a disease, the Supreme Court held that punishing addiction is akin to punishing mental illness, leprosy, or venereal disease, and the Eighth Amendment prohibits the state from criminalizing the status of having such diseases. Id. at 666-67; see also Ingraham v. Wright, 430 U.S. 651, 666-68 (1977) (holding Eighth Amendment "imposes substantive limits on what can be made criminal and punished").

The Supreme Court draws a distinction between laws that criminalize status, which are unconstitutional, and laws that criminalize conduct, which may be constitutional. For example, six years after deciding Robinson, the Supreme Court upheld a Texas statute that criminalized public drunkenness. See Powell v. State of Tex., 392 U.S. 514 (1968). In Powell, the Supreme Court rejected the trial court's finding that the criminal defendant was compelled to appear drunk in public due to his chronic alcoholism, a disease that destroyed his will power to resist the excessive consumption of alcohol. Id. at 521. Distinguishing the case from Robinson, the Powell opinion states:

[A]ppellant was convicted, not for being a chronic alcoholic, but for being in public while drunk on a particular occasion. The State of Texas thus has not sought to punish a mere status, as California did in Robinson; nor has it attempted to regulate appellant's behavior in the privacy of his own home.

Rather, it has imposed upon appellant a criminal sanction for public behavior which may create substantial health and safety hazards, both for appellant and for members of the general public, and which offends the moral and esthetic sensibilities of a large segment of the community. This seems a far cry from convicting one for being an addict, being a chronic alcoholic, being 'mentally ill, or a leper . . . .'

Id. at 532 (quoting Robinson, 370 U.S. at 666). Thus, the Supreme Court in Powell found the criminal defendant was not penalized for being an alcoholic; he was punished for the conduct of being drunk in public, a behavior the State of Texas could criminalize without violating the Constitution.

Applying this Supreme Court precedent, the Ninth Circuit held a Los Angeles ordinance that criminalized sitting, lying, or sleeping in a public way at any time of day was unconstitutional as applied to the homeless. Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006) vacated by 505 F.3d 1006 (9th Cir. 2007).*fn1 Because the record established the number of homeless people in the City's Skid Row neighborhood vastly outnumbered the amount of shelter beds and low income housing available there, the Court determined that the homeless had no choice but to be present on the neighborhood's streets and sidewalks. Accordingly, the City's complete bar on sitting, lying, or sleeping in public at any time of day in effect criminalized the homeless who had no choice but to be present on the street. Id.

In so ruling, the Ninth Circuit panel made a distinction between the Los Angeles ordinance which operated as a complete ban on innocent acts, such as sitting, lying, or sleeping in a public way at any time of day, and other ordinances that are directed toward conduct beyond merely being present in public places.

Other cities' ordinances similarly directed at the homeless provide ways to avoid criminalizing the status of homelessness by making an element of the crime some conduct in combination with sitting, lying, or sleeping in a state of homelessness. For example, Las Vegas prohibits standing or lying in a public way only when it obstructs pedestrian or vehicular traffic. See, e.g., Las Vegas, Nev., Mun.Code § 10.47.020 (2005) ("It is unlawful to intentionally obstruct pedestrian or vehicular traffic...."). Others, such as Portland, prohibit 'camping' in or upon any public property or public right of way. See, e.g., Portland, Or., Mun.Code §§ 14A.50.020, .030 (2006) (prohibiting obstruction of public sidewalks in a designated area or camping on public property). Still others contain safe harbor provisions such as limiting the hours of enforcement. See, e.g., Seattle, Wash., Mun.Code § 15.48.040 (2005) ("No person shall sit or lie down upon a public sidewalk ... during the hours between seven (7:00) a.m. and nine (9:00) p.m. in the following zones...."); Tucson, Ariz., Mun.Code § 11-36.2(a) (2005) (same, except prohibition extended to 10:00 p.m.); Houston, Tex., Mun.Code § 40-352(a) (2006) (same, except prohibition extended to 11:00 p.m.). Other cities include as a required ...

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