Shawn Vestal: Arguments around anti-camping initiative sail into sea of legal uncertainty

The anti-camping initiative on the November ballot for Spokane voters has been pitched as narrowly focused on protecting children – outlawing camping anywhere within a 1,000-foot radius of a school, day care center, park or playground.

But a new map produced by a professor at Eastern Washington University shows the ban would cover most of the city, leaving small pockets in neighborhoods and on the edges of town where it would be permissible for homeless people to sleep in the absence of other shelter.

The map makes the initiative appear closer to a citywide ban than a targeted measure. That is one reason that even many critics who expect it to pass – given the widespread frustration with the worsening homelessness crisis – anticipate a possible court challenge for running afoul of the Martin v. Boise ruling that prohibits criminalizing homelessness when there isn’t enough shelter.

But the initiative also arrives at a time when legal challenges to the Martin ruling are mounting from the other side, as well. City and state officials across the West, including liberal leaders in cities like Seattle and Portland, are urging the Supreme Court to reconsider lower-court rulings and loosen the restrictions against prohibiting camping, as street homelessness has reached what they call “a breaking point.”

The city of Spokane announced Friday that it was joining one of those legal challenges.

In other words, the anti-camping initiative is sailing into a sea of legal uncertainty.

As it now stands, the Martin ruling’s central tenet holds that the Constitution’s Eighth Amendment “precludes the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter.”

In Spokane, the absence of alternative shelter has been longstanding. The homeless population has for years exceeded available shelter and housing. On Wednesday, for example, there were 31 shelter beds open for adult men at four different shelters; it is often fewer than that.

The latest point-in-time count found nearly 1,000 unsheltered people living in Spokane, which is believed to be a serious undercount. The overall number of unhoused people was 2,390, which has increased 243% since 2016.

And the state estimates the actual number may be eight times greater.

Eric Tars, the legal director of the National Homelessness Law Center and one of the attorneys representing homeless defendants in the Martin case, said he couldn’t predict how a court might rule in a challenge to the initiative.

But a widespread ban on camping, in the absence of adequate shelter, runs counter to the central thrust of Martin, he said. That case was decided in 2018 by the 9th Circuit Court of Appeals, and the Supreme Court declined to take up an appeal, meaning the ruling is binding within the 9th Circuit – seven Western states plus Alaska and Hawaii.

“The principle that Martin sets forth is that you cannot enforce these ordinances unless you provide an adequate indoor alternative,” Tars said.

After reviewing the new map, he added: “This would effectively make two-thirds of the city off-limits. People will have to move, under threat of arrest, into the remaining one-third unless there is a plan for where they can go instead.”

The Martin ruling leaves open the possibility of targeted limits on camping in certain places or at certain times. But it provides no test or standard for what would be permissible in such exceptions, and cities around the West have been looking for ways to thread that needle.

Mark Lamb, the attorney representing the initiative’s sponsors, said the measure is intended to narrowly target areas where encampments might affect children, while leaving open other areas of the city where unhoused people can shelter themselves. He says it is meant not to flout the Martin ruling, but to work within its boundaries.

He noted Spokane’s anti-camping measure comes after Portland and Los Angeles implemented limits on camping that are similar in some ways.

Los Angeles bans sitting, lying or storing property within 500 feet of parks or “sensitive” areas such as schools or day care centers. It has been paired with an effort to move people off the streets and into housing or hotels.

Portland recently adopted a daytime ban on camping, as well as a prohibition on camping at all times within 250 feet of schools or day care centers.

“If the city of Spokane is hauled into court, we’ll be standing next to the city of Portland and the city of Los Angeles, trying the case together,” he said.

Steve Berg, chief policy officer for the National Alliance to End Homelessness, said governments around the country have been trying to find the boundaries of what can be prohibited and where under Martin.

“The language in Martin v. Boise is a little general about that,” Berg said. “It hasn’t really been tested that much. What areas can be put off-limits to camping haven’t been specified by the courts.”

‘Not workable’

One of the most striking features of the Spokane initiative is the 1,000-foot buffer, which is much larger than existing city limits, as well as those in other cities. Spokane currently has a narrowly focused prohibition on camping within 50 feet of railroad viaducts and three blocks of shelters.

Robert Sauders, an associate professor of anthropology and geology at EWU, said he decided to map the initiative’s potential consequences because he thought most people would underestimate how such a limit would sprawl across the city. Each school, day care and park would be surrounded by a 2,000-foot no-go radius, covering several blocks in every direction.

“It seems narrow, but it’s not,” Sauders said. “It is a much larger chunk of space than people tend to think.”

Furthermore, he said, it does not address the central underlying problem: a lack of adequate shelter and housing.

“The initiative seems to be trying to make the problem go away by simply forbidding the ability of people to experience homelessness,” he said.

Sauders used city data on parks, school district data on school locations, state data on the locations of licensed day care facilities and state parcel data to identify land in town designated for “educational services,” in an effort to try and represent the locations of private schools. He acknowledged that some parcels with educational services designations may not be schools.

Taken as a whole, the prohibited zones would represent more than half of all city land. If you omit the airport, those zones make up about 61% of land within the city limits.

The map is a specific picture of what initiative opponents have been arguing generally – that the measure would cover most of the city and consolidate homeless people into shrinking corners of town, largely in neighborhoods. An earlier map analysis produced by SCAR – Spokane Community Against Racism – estimated the overall impact area of 40%.

Tars called the initiative “terrible public policy.” The 1,000-foot buffer would effectively mean that a homeless person could violate the law when sleeping three or four blocks away from an in-home day care center they’re unaware of, he said.

“It’s not workable for people experiencing homelessness, and it’s not workable for the police who might have to enforce it,” Tars said.

He also said the measure seems to conflate homelessness and crime, suggesting homeless people are a danger to others when the fact is that they are often most at risk of being victimized.

“This makes it seem like homeless people are inherently dangerous, and they’re not,” he said.

Tars and Berg, who work on homelessness issues and support housing-based solutions nationally, said they see the initiative as ineffective and costly – citing studies that show that providing housing and services saves cities money in police, jail, hospital and other costs often hidden in municipal budgets.

Efforts to use sweeps, citations, arrests and jails tend to recycle the problems and move people around, placing obstacles in the way of escaping homelessness, they said. But given the rising urgency of the problem – and particularly the problems of crime, drug use and disorder that many conflate with homelessness – they said such measures are increasingly popular, even among those who might have opposed them just a few years ago.

“But we know what works: Moving people as quickly as possible into housing and providing them with whatever services they need to stay stable in that housing,” Berg said. “Research shows over and over that that’s the way to reduce the number of people who are homeless.”

‘Not a test case’

Lamb, the Seattle attorney representing initiative sponsors, said opponents of the measure are overstating its sweep and reach. He described it as focused on protecting children in areas where the presence of encampments – especially large, free-standing ones such as Camp Hope – present a particular concentration of crime, visible drug use and safety concerns.

The chief funder of the initiative effort is Larry Stone, a local developer who has for years promoted a “cure” for homelessness in Spokane that involves banning camps and building a bigger new jail. His most recent video, released last week, called for a citywide ban on camps that runs counter to the Martin v. Boise ruling.

“We must stop all camping on public property,” the video’s narrator asserts.

Stone has contributed $115,000 of the $215,000 raised for the political committee supporting the initiative, Clean and Safe Spokane. For that reason, some have seen the initiative as an effort to get the Martin case back in court and try to overturn or change it.

Lamb said the initiative is not intended to create a challenge to Martin, though a court challenge is possible. The intention is quite the opposite, he said – he said Martin allows reasonable exceptions for prohibiting camping, and that the initiative is one such exception.

“It has never been the position of Martin that you cannot have time, place and manner restrictions on camping,” he said.

He added, “It is absolutely not a test case to challenge Martin v. Boise.”

The initiative has been challenged in court by Julie Garcia of Jewels Helping Hands and Ben Stuckart, the executive director of the Spokane Low-Income Housing Consortium and a former City Council president. That challenge asked a judge to block the initiative, arguing that it exceeds the limits of initiative authority and usurped policy-making power that state law gives to city governments.

A judge, and then an appeals court, allowed the initiative to go on the ballot, while acknowledging that there may be future legal challenges under Martin.

The Seattle attorney representing Garcia and Stuckart in that case, Knoll Lowney, declined comment last week.

Lamb reviewed the map, but said he didn’t have time to dig into the data closely. But the intention of the initiative, he said, is to give police the tools, especially in cases of free-standing encampments such as Camp Hope, to protect kids in environments where the consequences of nearby encampments could be serious.

It is not meant to be the sum total of the civic response to a large, complicated problem.

“It’s simply saying there are places in the city, which the Spokane code already says, that are better for camping than others,” he said.

‘People want housing’

The Martin ruling was issued in 2018, before the COVID-19 pandemic and rising scourge of fentanyl addiction changed the landscape significantly. The city of Grants Pass, Oregon, attempted to work around the ruling by banning the use of any “bedding, sleeping bag, or other material used for bedding” – while not explicitly prohibiting camping.

A 9th Circuit panel called this “an illusion” in 2022.

“The City claims homeless persons are free to sleep in City parks, but only without items necessary to facilitate sleeping outdoors,” they wrote in striking down the ordinance.

Recently, more than two dozen city and state officials from around Western states – Democrats and Republicans – have filed legal arguments asking the Supreme Court to reconsider the lower court rulings, saying that the crisis around homeless encampments is “at a breaking point.”

“Despite massive infusions of public resources, businesses and residents are suffering the increasingly negative effects of long-term urban camping,” attorneys for the cities wrote in one brief.

Spokane Mayor Nadine Woodward directed the city attorney to join one of the briefs, alongside more than a dozen other cities asking the high court to throw out the “shelter availability test,” the city announced Friday.

“Homelessness is an extremely complex challenge that requires a multitude of resources and approaches,” Woodward said in a statement. “We have to remove limitations on our ability to address individual needs as cities. This is a reasonable request and critically important to our future.”

In reporting on the legal filings last week, the New York Times cited federal statistics showing that roughly 40% of the nation’s homeless population resides in the nine states covered by the 9th Circuit rulings.

Tars and other opponents of the efforts to clear the way for more sweeps agree that the encampments are not good for homeless people or the communities they live in. But they argue that citing or arresting people without providing housing and help will further marginalize homeless people and fail to address underlying problems.

Tars said that, while it is costly to provide housing-based solutions and to correct for the shortage of addiction and mental health treatment, it is cheaper than the alternative, with the massive drain on police, fire, hospital and other costs mostly hidden inside municipal budgets. He points to cities that have been successful in limiting camping – such as Houston – by removing campers only when they can offer them immediate shelter.

In the local political discourse and around the West, city officials have argued that many homeless people refuse help when it is offered.

Tars said that, while it’s true that homeless people may not want to go to a crowded shelter or one with conditions they don’t want to accept, when cities offer real housing – places that provide privacy and security, a space of one’s own, and a sense of dignity – most people living outside will accept it.

“When you offer them something with dignity and the things they need, they take that offer almost every time,” he said. “People want housing. They don’t want to be on the street.”