Homelessness Policy and the Threat to the Treasure Valley: Part 2

Housing first policies combined with Boise's loss in Boise v. Martin will lead the Treasure Valley to disaster unless our leaders change course.

This is the second in a series of articles on homelessness in the Treasure Valley. Part One, which introduces the series, can be found here.

Two important truths about homelessness stand out.

First, when cities or charities build shelters, the homelessness problem gets worse. Call it the Field of Dreams postulate: If you build it, they will come.

This truth is found abundantly in past experience, in New York. Here's why. Any policy emphasizing shelters treats homelessness as an economic problem. According to those who advocate for such policies, people are homeless because they are too poor to pay the rent or too poor to buy a home. They need temporary help to get back on their feet. Therefore shelters. Or perhaps the city or entity can give them semi-permanent housing in apartments. This is known as the “housing first” theory of homelessness. A solid economic basis will cultivate responsibility and stability. Or so the theory holds.

But homelessness is more a moral and cultural phenomenon. Giving people homes does not end up making them more responsible. Most of the homeless are in fact not, in as one scholar puts it, “housing ready,” in that they lack the long-term thinking, attention to detail, and basic sobriety and sanity necessary to manage a household. Estimates suggest that between 40% and 50% of the homeless are drug addicts or alcoholics. The more shelters, however, the higher percentage of the homeless are addicted to drugs. Giving the homeless shelter or semi-permanent residences does not make them sober. A goodly proportion of the homeless—probably approaching a quarter—are mentally imbalanced or insane. Giving the homeless shelter does not help them achieve a sanity. The “housing first” theory ends up being just another example of providing economic solutions to solve moral problems. Moral problems need moral solutions or restraint.

States out west show the effects of “housing first” policies. California, Oregon and Washington have followed New York in embracing “housing first” for decades. About a third of America’s homeless (580,466) lives in the states bordering on the Pacific. Leading the nation, California has almost three times (161,548) as many vagrants as New York, the second-place state. As Mark Pulliam writes, “California spends billions of dollars to house transients and has ever increasing numbers of shelters. This has only increased its number of homeless. Bums respond to economic incentives, moving to places where they are tolerated, fed, funded, and enabled.” If you build it, they will come.

Second, the legal environment is much more hostile to preventing homeless from moving into one’s area, thanks, in part, to the actions and inactions of Boise’s Mayor McLean. It used to be that the homeless could be arrested for taking public space for their private use. But this is no longer possible, thanks to a 2018 ruling in the 9th Circuit of the United States known as Martin v. Boise. This ruling declared that city ordinances that prohibit the homeless from sleeping or camping overnight on public property (such as in parks) was “cruel and unusual punishment” and therefore unconstitutional.

According to Martin v. Boise, the only way that a city could enforce its laws against homelessness was if it also provides enough shelter beds to house every “person experiencing homelessness,” a burden no city will ever be able to meet. But the ruling made it necessary for cities to try to meet the alleged homeless demand for shelter if they want to place any limits on homelessness in front of businesses or in residential neighborhoods.

Cities must build shelters in order to enforce their laws; if they build more shelters, more homeless come to their cities, which means they need to build more shelters to enforce their laws. At the same time, arresting the homeless puts the authorities in a tough spot: they much justify their arrest against the available assistance for the homeless. If they lose, they must build more shelters. And they will lose. The fact that people are homeless is, on the "housing first" theory, evidence that there are not enough shelters, so arrests cannot be made. Either way cities get an upward spiral of homeless shelters abetted by its inability to enforce laws against homelessness.

Let us look more closely at the court’s reasoning. Marsha Berzon, a Clinton appointee, held that “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.” Because sleeping on the streets is an “unavoidable consequence” of being homeless, punishing it amounts to criminalizing status, as opposed to conduct. Being homeless thus becomes like being from a protected group like a racial minority. The lack of shelter leads to discrimination against the homeless because only the homeless can be arrested for vagrancy violations. It is a civil rights issue—and housing must be supplied in order to make sure that municipalities meet their obligations.

The homeless must not provide their own shelter, according to the opinion. Society instead must provide for their shelter. And society must accept the consequences of its failure of the homeless to be sheltered, no matter how irresponsible the lifestyle decisions of individual actors. A drug addict has the right to be housed comfortably, no matter his decisions. Society has the responsibility of housing an insane person, but cannot restrain the insane person in an asylum.

What did this decision do? The Supreme Court never weighed in on the case. Three unelected judges on the Ninth Circuit threw out the laws from more than 1,600 municipalities. Those cities were now powerless to curb urban homeless encampments.

Many of those cities fought the Ninth Circuit’s decision, and Boise led the way trying to get Martin v. Boise overturned. This is a story in itself.

The evolution of the case law is a long and sordid tale, but the immediate cause is easier to recite. As Tucker Carlson explained, for over a decade, Latham & Watkins (LW), a prestigious mega-firm with annual revenues exceeding $4 billion, contributed over 7,000 hours of attorney time to defeat Boise’s attempt to maintain order, safety, and sanitation in its public spaces. Against this firm was the city of Boise led by former Mayor David Bieter in litigation that began in 2009.

LW brought a lawsuit against the City of Boise for fining some homeless between $25 and $75 for “camping” in public overnight. Boise then had several homeless shelters run by private Christian-based non-profit groups, two of which never turned away anyone for lack of space. The plaintiffs objected to the religious nature of the relief services, violated the shelter’s rules, or refused to comply with the shelter’s requirement that participants abstain from alcohol. The homeless chose to leave a shelter that was available to them. Like most homeless in America, they wanted immediate gratification instead of responsibility, as Pulliam writes. They chose to sleep outdoors because it suited them.

For nearly a decade, the city of Boise under Mayor Bieter successfully defended its ordinance against LW. At the trial-court level, the city twice won a summary judgment, first in 2011 and again in 2015, only to see those decisions overturned on appeal in the Ninth Circuit. In 2019, six judges on the Ninth Circuit dissented from the denial of en banc review in Martin v. Boise, with this dramatic statement:

In one misguided ruling, a three-judge panel of our court badly misconstrued not one or two, but three areas of binding Supreme Court precedent, and crafted a holding that has begun wreaking havoc on local governments, residents, and businesses throughout our circuit… The panel’s reasoning will soon prevent local governments from enforcing a host of other public health and safety laws, such as those prohibiting public defecation and urination. Perhaps most unfortunately, the panel’s opinion shackles the hands of public officials trying to redress the serious societal concern of homelessness.

But Boise still had a chance. It appealed Martin v. Boise to the United States Supreme Court. On December 3, 2019, Mayor Bieter lost his race for reelection to Lauren McLean. On December 16, 2019 the Court denied certiorari or said it would not hear the case.

This denial of cert is odd. There was great interest in the case. More than a dozen groups filed amici curiae or friend of the court briefs because they were worried about the effects of the decision on their municipality. As the Ninth’s Circuit’s opinion makes clear, several other circuits in the United States had reached the opposition conclusion. So vagrancy laws are perfectly good in some parts of the country, but not in the Ninth Circuit’s area that includes Idaho. The Supreme Court often takes cases where there are different opinions in different parts of the country so that the U.S. law remains one everywhere. There was sharp disagreement in the Ninth Circuit.

The justices considered taking the case twice during the Fall of 2019. They sat down in conference and considered whether to take the case on November 13, 2019 (before the final Boise mayoral election), but, for whatever reason, could not come to agreement whether to take the case. But they apparently agreed to reconsider the denial because they considered it again (after the final mayoral election) on December 9, 2019. On December 16, the Court denied Boise’s petition. The case was over, and so seemed Boise's inability to enforce its laws.

For other features in this series see:

Part One: Boise's Approach to Homelessness Threatens the Whole Treasure Valley