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New Ninth Circuit Ruling Addresses Anti-Tenting Ordinances

October 17, 2022

Oskar King


Court docket Choices and AGO Opinions

Final month, the federal Ninth Circuit Court docket of Appeals issued a call that gives clarification and steerage on anti-camping ordinances to municipalities within the Ninth Circuit (which incorporates Washington). thecase, Johnsonv. Metropolis of Grants Crossis a follow-up to the Martin v. Metropolis of Boise case, which was initially determined in 2018.

The courtroom in Martin dominated that enforcement of anti-camping ordinances towards people experiencing homelessness violates the Eighth Modification of the US Structure if no options to sleeping in public can be found. For background, see MRSC’s webpage Regulation of Unauthorized Tenting, Loitering, and Solicitation of Help and the weblog articles, Is Your Tenting Ordinance Constitutional? and What Are Native Governments Doing in Response to Martin v. Metropolis of Boise?

factual background

The underlying info of Johnson are fairly much like Martin. The Oregon metropolis of Grants Cross had a collection of ordinances that prohibited sleeping and tenting in public. Taken as a complete, these ordinances prohibited sleeping and tenting in public locations all through town. Preliminary violations of the ordinances resulted in a civil quotation and financial positive. Nonetheless, two or extra violations of the anti-camping ordinances might give rise to a “park exclusion order,” which, if violated, would function a foundation for a prison trespass quotation.

In 2013, the Grants Cross Metropolis Council agreed to a neighborhood roundtable to “establish options to the present vagrancy drawback.” One of many deliberate actions from the roundtable was elevated enforcement of the anti-camping ordinances. Between 2014 and 2018, town issued a complete of 574 tickets below its anti-camping and anti-sleeping ordinances.

The events disagreed on what number of involuntary homeless people lived within the metropolis, however point-in-time counts for 2018 and 2019 indicated there have been no less than 600. And there was no dispute that Grants Cross had much more homeless people than out there shelter beds.

After the 2018 preliminary determination in Martin, homeless people in Grants Cross filed a category motion criticism towards town looking for a declaration that enforcement of anti-camping ordinances towards them was unconstitutional and sought an injunction to stop town from persevering with to implement the legal guidelines. Thereafter, Grants Cross amended its anti-camping ordinance to exclude “sleeping” from the definition of tenting. The town’s place was that by eradicating involuntary conduct (sleeping) from the definition of tenting (which included use of bedding and tents), the ordinance complied with the courtroom’s holding in Martin. the Johnson courtroom disagreed.

Key Takeaways

the Johnson courtroom famous that the core points involving enforcement of anti-camping ordinances is ruled largely by Martin. Nonetheless, a number of points of the case are noteworthy and price reviewing in additional element.

Class actions are an possibility for plaintiffs looking for to problem legal guidelines that disproportionately influence homeless people.

Martin concerned civil rights act claims asserted by particular person plaintiffs—it was not a category motion. In Johnsonthe Metropolis of Grants Cross argued that the trial courtroom erred in certifying a category outlined as:

All involuntarily homeless people dwelling in Grants Cross, Oregon, together with homeless people who generally sleep outdoors metropolis limits to keep away from harassment and punishment by [the City] as addressed on this lawsuit.

Class certification is a posh subject, usually used to compile many small claims right into a single case for monetary efficiencies, and there are a number of necessities that have to be met to efficiently certify a category. Evaluation of sophistication certification is past the scope of this text however suffice it to say that the Court docket of Appeals in Johnson upheld its use within the problem to the enforcement practices of the Metropolis of Grants Cross.

The ruling in Martin v. Metropolis of Boise will not be restricted to prison citations.

the Martin case concerned the difficulty of prison citations for violating the Metropolis of Boise’s anti-camping ordinances. The Metropolis of Grants Cross argued that its enforcement practices didn’t violate the Eighth Modification as a result of the difficulty of civil citations will not be “punishment.” the Johnson courtroom disagreed, for the reason that civil citations might ultimately result in prison punishment:

The anti-camping ordinances prohibit Plaintiffs from partaking in exercise they can’t keep away from. The civil citations issued for conduct Plaintiffs can’t keep away from are then adopted by a civil park exclusion order and, ultimately, prosecutions for prison trespass. Imposing just a few additional steps earlier than criminalizing the very acts Martin explicitly says can’t be criminalized doesn’t treatment the anti-camping ordinances’ Eighth Modification infirmity.

The courtroom clarified that “our determination doesn’t handle a regime of purely civil infractions, nor does it prohibit the Metropolis from trying different options to the homelessness subject.”

Ordinances should enable homeless people to take “essentially the most rudimentary precautions” towards the weather.

the Johnson courtroom was not impressed with town’s argument that amending the anti-camping ordinances to permit people experiencing homelessness to sleep in parks complied with the Martin Case. Though sleeping was technically allowed, the amended ordinance continued to ban using “bedding, sleeping bag[s], or different materials used for bedding functions.” Noting that “Grants Cross is chilly within the winter,” the courtroom dominated that, “the Metropolis can’t implement its anti-camping ordinances to the extent they prohibit ‘essentially the most rudimentary precautions’ a homeless particular person may take towards the weather.”

The courtroom was cautious to notice that its ruling didn’t essentially prolong past essentially the most rudimentary precautions:

Our holding that the Metropolis’s interpretation of the anti-camping ordinances is counter to Martin is to not be interpreted to carry that the anti-camping ordinances have been correctly enjoined of their entirety. Past prohibiting bedding, the ordinances additionally prohibit using stoves or fires, in addition to the erection of any buildings. The document has not established the fireplace, range, and construction prohibitions deprive homeless individuals of sleep or “essentially the most rudimentary precautions” towards the weather. Furthermore, the document doesn’t clarify the Metropolis’s curiosity in these prohibitions. In step with Martinthese prohibitions could or is probably not permissible.


the Johnson courtroom famous that its determination, like Martin, is “slender.” The Grants Cross ordinances have been much like the Boise ordinances in that they prohibited sleeping and tenting in public locations on a citywide foundation. Neither Johnson or Martin stop a jurisdiction from prohibiting mendacity or sleeping outdoors at explicit instances or particularly areas, obstructing the right-of-way, or erecting sure buildings.

Johnson is probably going the primary in a collection of post-Martin Ninth Circuit instances through which the constitutionality of enforcement of anti-camping ordinances is examined. It’s going to take time to outline the scope of municipal regulatory authority on this creating space of ​​regulation.

MRSC is a non-public nonprofit group serving native governments in Washington State. Eligible authorities businesses in Washington State could use our free, one-on-one Ask MRSC service to get solutions to authorized, coverage, or monetary questions.

About Oskar Rey

Oskar Rey has practiced municipal regulation since 1995 and served as Assistant Metropolis Lawyer for the Metropolis of Kirkland from 2005 to 2016, the place he labored on a variety of municipal subjects, together with land use, public data, and public works. Oskar is a life-long resident of Washington and graduated from the College of Washington Faculty of Regulation in 1992.


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