By The Herald Editorial Board
Following a reversal eight months ago by the U.S. Supreme Court that overturned its own past rulings on issues related to “camping” by homeless individuals in public places, cities and counties across the nation — and in Washington state — have responded with ordinances that strengthen anti-camping bans and in some cases make being homeless a crime.
The court’s 6-3 majority in June determined that laws that imposed fines and criminal penalties did not qualify as “cruel and unusual punishment,” a reversal of past rulings by federal courts and the Supreme Court that such actions could not be taken if no other reasonable shelter — a place to sleep and keep personal belongings — were available.
Among the local governments adopting or modifying laws to discourage sitting, lying and sleeping in public places with the threat of fines and penalties are Aberdeen, Auburn, Bremerton, Kennewick, Richland, Spokane Valley and Chelan County.
Burien, notes a recent Seattle Times report, has banned anyone from sleeping outside in public areas, essentially making homelessness illegal unless the individual is awake.
Legislation proposed in the state House seeks to find a balance — and a statewide standard — for concerns for those experiencing homelessness and the needs of local government to protect the safety and fair use of public spaces for all.
The legislation, House Bill 1380, drafted by state Rep. Mia Gregerson, D-SeaTac, seeks a standard that would require local government actions to regulate sitting, lying, sleeping, and keeping warm and dry outdoors on public property be “objectively reasonable” as to time, place and manner.
But representatives of cities and state associations representing cities and counties, at hearings before the chamber’s committees on housing and appropriations earlier this month, said the standard of “objectively reasonable” was vague and would leave local governments open to litigation, wasting money that could be better used to provide shelter and other services to those who are homeless.
The legation doesn’t define “objectively reasonable,” leaving that initially to Superior Court judges to determine on a case by case basis, but it’s one that Gregerson said is an established standard, first used to determine reasonable use of force by police and later applied elsewhere.
As well, the bill would protect local governments by heading off challenges that otherwise could result in monetary damages for plaintiffs; only legal fees could be awarded. That was the case in Portland, which was sued over its anti-camping ordinance — citing an Oregon law, on which HB 1380 is based — and settled out of court with the city’s agreement to pay $175,000 in attorney’s fees.
Even without this bill, Burien already is facing a lawsuit over its camping ban. Had the bill’s provisions been in place, it might have offered that city some protection had it drafted its ordinance using a reasonable standard.
One Burien resident, Colleen Hinton, spoke in support of the legislation, describing the city’s actions to pass a camping ban aimed at eliminating tent encampments and its challenge of a church’s offer to host a temporary camp during the winter of 2023-24.
The city adopted an even more restrictive law last March that resulted in lawsuits and a determination by the King County Sheriff’s Office, which provides police services for the city, that it would not enforce the ordinance. Offered grant funding by King County to develop shelters, such as a tiny house village, Burien eventually lost the $1 million grant over its lack of action to move forward.
“It’s been a mess of uncertainty and inhumanity,” Hinton told the housing committee, “leaving unhoused people in our community without options and Burien residents dissatisfied, regardless of their views on the root causes of the problem. I think this bill will go a long way to avoiding such a mess as we’ve experienced in Burien.”
Gregerson’s bill appears to comply with the intentions of the Supreme Court’s recent ruling, noted during testimony before the housing committee.
“The Supreme Court’s recent decision in city of Grants Pass v. Johnson upheld ordinances against public camping, but emphasized the need for reasonable regulations,” said Jasmin Clark, justice policy director for the ACLU of Washington.
The bill, she said, holds to the ruling by balancing the circumstances of individuals and an ordinance’s impact with local government’s duty to ensure public order.
The Supreme Court’s ruling stretches back to a 2013 law adopted by Grants Pass, Ore., which made it illegal to sleep outside in public, using a blanket or sleeping bag.
The city council’s intent — at least that of its council president, Lily Morgan, at the time — was clear: “The point is to make it uncomfortable enough for them in our city so they will want to move on down the road,” Morgan said at a meeting in March 2013.
But there’s a danger — not just to homeless individuals, but to neighboring cities and counties — if one city adopts a onerous law that seeks only to move the problem outside the city limits rather than take reasonable responsibility for all citizens, regardless of economic and health circumstances.
Many cities and counties in the state — with state and federal assistance and the work of churches and nonprofits — have moved to make reasonable accommodations for shelter and services for those dealing with homelessness. At the same time, local governments have a duty to the health and safety of the public and the enjoyment of public parks and spaces that are meant for recreation and a city’s livability.
HB 1380 provides a path toward balancing those duties and a standard that’s in the interest of all local governments.
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