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How the in flux ‘Right to camp’ case will impact Washington homeless

A homeless encampment on public and private property near Northwest 46th Street in Seattle. (City of Seattle)

There is a District Court ruling that says a city cannot sweep a homeless camp unless there’s some shelter where those people can go. It was headed for the Supreme Court, but they were not interested in the case. Former state Attorney General Rob McKenna joined Seattle’s Morning News with Dave Ross to discuss why they chose not to take up the case, considering how widespread the problem is.

“Well, you never know for sure why the Supreme Court won’t take up a case. Here there clearly weren’t at least four justices who wanted to review the Ninth Circuit’s ruling. They may be waiting to see what other courts of appeals say about similar cases, so that could create what we call a circuit split,” he said.

“So we’re left with the Ninth Circuit’s decision in 2018 in a case called Martin v. Boise, in which six homeless people sued the city of Boise for essentially prosecuting them for public camping … and the Ninth Circuit said, ‘Nope, you can’t do that. It violates the Eighth Amendment to the U. S. Constitution, which bans cruel and unusual punishment. You can only prosecute someone for
public camping when there are enough public beds available.'”

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In this scenario, the homeless person is not required to prove they couldn’t find a bed; rather, the burden is on the city to prove that were beds available when the citation was issued. If there is shelter available, then the cops would be allowed to force the homeless person to leave. This would essentially become the law in the states governed by the Ninth District.

“The Ninth Circuit’s ruling applies to all of the states that are in the Ninth Circuit, which is basically the Western United States and Hawaii and Alaska,” McKenna said.

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Part of the concern is that such a decision will make it difficult for cities to curb public camping at all. So how do cities like Seattle decide how much housing needs to be provided if this whole thing is in flux?

“That’s a really tricky question, isn’t it? How do you know how many people were out there on any one day? If the burden is on the city to show that they had enough beds for everybody, how do they prove that in a given instance where they’re trying to move someone out of a camp that’s been established under a freeway, for example,” he said.

“On one hand, the proponents believe this is a way to force governments to provide more actual shelters; on the other hand, the cities are worried that it’s going to empower people to effectively camp wherever they want. There is one loophole that the City of Seattle already utilizes other cities use … An exception says if there’s an imminent danger posed by individuals public camping spot, they can be moved … Obviously, if the cities start to use that exception too much, that will be challenged.”

Listen to Seattle’s Morning News weekday mornings from 5-9 a.m. on KIRO Radio, 97.3 FM. Subscribe to the podcast here.

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