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Ruling striking law in homeless case mirrors Indianapolis debate

April 19, 2019

A California federal appeals court ruling that homeless individuals cannot be criminally charged for sleeping on public property reflected sentiments last fall that helped stop a proposed Indianapolis ordinance that barred people from sitting or lying on public property during certain hours.

A split 9th Circuit Court of Appeals earlier this month refused an en banc review of Martin v. City of Boise, 902 F.3d 1031, 1035 (9th Cir. 2018), a September ruling that held the Eighth Amendment precluded the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter.

That decision came after six homeless Boise, Idaho residents argued their rights were violated when they were arrested for breaking an “anti-camping” ordinance by sleeping on public property as a last resort.

A three-judge panel ruled against the city, also holding that as long as there is no indoor sleeping option, the government cannot criminalize indigent, homeless residents for sleeping outdoors, on public property, on the false premise they had a choice.

Around the same time the panel denied reviewing the case, a similar debate was brewing in Indianapolis over a similar proposed law. Arguments swelled over a proposed ordinance that would ban people from sitting or lying down on city streets or sidewalks within a square mile of the Indianapolis Monument Circle for most of the day, with certain exceptions.  

Proposed by Indianapolis City-County Council Minority Leader Mike McQuillen, the “sit-lie” ordinance was advocated to help reduce aggressive panhandling in the city and promote safety downtown.  

But like the 9th Circuit’s majority ruling against the Boise ordinance, many Hoosiers opposed the proposal, arguing it would effectively criminalize living without a permanent home.  

Partners in Housing executive director Scott Armstrong said he was greatly disappointed with Indianapolis’ proposed ordinance, which was ultimately pulled before it could receive a final vote from the full council in December.

Prosecuting people won’t solve the homelessness crisis, he said, but securing housing for them would be a viable solution.   

“When you do not provide adequate housing, and then make not being in housing illegal, you have basically made it illegal for that person to exist at all,” Armstrong said.

The implementation of such an ordinance could seriously impact Indianapolis’ homeless population, he noted. Although one ordinance might not seem impactful, a snowball effect could build up over time, prolonging the transition out of homelessness.

“People aren’t sleeping outside because there isn’t a law against it,” Armstrong said. “They are sleeping outside because they have nowhere else to go. They can’t just choose not to.”

Armstrong added that because the majority of Indianapolis’ homeless population suffers from mental health or substance abuse issues, their chances of appearing for court hearings, securing transportation and paying fines would be limited. That would set them back even further.  

“People having trouble finding gainful employment and maintaining stable housing will only see those troubles multiply when suddenly faced with a ‘rap sheet’ of charges that all come because they are experiencing homelessness,” he said.

Ken Falk, legal director of the American Civil Liberties Union of Indiana, said he doesn’t think the failed Indianapolis ordinance was designed to address the underlying homelessness problem. Rather, it was designed to “clean out” areas where homeless was visibly present.

“And if the reason they’re there is because they literally have nowhere else to go, you’re punishing their status as homeless people,” Falk said. “If it’s in fact because they have no other choice, that raises constitutional concerns.” 

The same argument was considered in Martin by Circuit Judge Marsha Berzon, who concurred in the denial of rehearing en banc. She wrote that the homelessness problem has grown “into a crisis” due to the cost of housing, lack of affordable care for people with mental illness and the failure to provide adequate treatment for drug addiction.

“People with no place to live will sleep outside if they have no alternative,” Berzon wrote. “Taking them to jail for a few days is both unconstitutional … and, in all likelihood, pointless.”

Berzon argued in the majority decision that “the crisis continued to burgeon while ordinances forbidding sleeping in public were on the books and sometimes enforced.”

“There is no reason to believe that it has grown, and is likely to grow larger, because Martin held it unconstitutional to criminalize simply sleeping somewhere in public if one has nowhere else to do so,” Berzon concluded for the unanimous panel.

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