Please Tread Carefully Public Comment from Ken Van Allen Aimee Brunckhorst
From: Kenneth Van Allen <kennethvanallen@gmail.com>
Sent: Wednesday, September 18, 2024 9:41 AM
To: Kalispell Meetings Public Comment
Subject: EXTERNAL Please Tread Carefully
I read in the Daily Interlake about the Council's decision to revoke the Warming Center's Conditional Use
Permit, effectively shutting it down.
The article ended with a quote from Mayor Johnson:
"We have to make a judgment.Whose attorneys do we want to face?" Johnson asked. "Because I
guarantee you, if we don't vote to [revoke] we are going to see attorneys from the other side."
This, I fear, could prove to be an expensive and ill-considered decision by the Council. There is now case
law, supported all the way to the SCOTUS, affirming the rights of the homeless and severely limiting the
enforcement of anti-homeless statutes prohibiting people from sheltering on public property. Please see
the article, pasted below, discussing the recent SCOTUS decision in a case brought against the City of
Boise. From https://hometesslaw.org/supreme-court-martin-v-boise/
Respectfully,
Ken Van Allen
Kalispell, MT
(December 16, 2019,Washington, DC)—This morning, the U.S. Supreme Court denied a petition by the
city of Boise to review the case Martin v. Boise (formerly Bell v. Boise). This leaves in place earlier rulings
by the 91" Circuit that homeless persons cannot be punished for sleeping outside on public property in
the absence of adequate alternatives. People experiencing unsheltered homelessness—at least in the
91" Circuit—can sleep more safely without facing criminal punishment for simply trying to survive on the
streets.
The Supreme Court's decision, issued without comment, means the April2019 ruling is binding in the 91"
Circuit, covering nine states including most of the western states, and carries national influence. The
ruling also means that homeless individuals who have received criminal citations under Boise's policy
can now proceed with their constitutional claims against the City. The National Law Center on
Homelessness & Poverty(The Law Center), which filed the case in 2009 with co-counsel Idaho Legal Aid
Services and Latham &Watkins LLP, hails this decision as being essential to encouraging cities to
propose constructive alternatives to homelessness.
"We're thrilled that the Court has let the 91" Circuit decision stand so that homeless people are not
punished for sleeping on the streets when they have no other option," said Maria Foscarinis, Executive
Director at the Law Center. "But ultimately, our goal is to end homelessness through housing—which is
effective and saves taxpayer dollars—so that no one has to sleep on the streets in the first place.We
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hope that the 9th Circuit decision will help communities find the political will to put that housing in
place. Housing, not handcuffs, is what ends homelessness."
The Martin v. Boise case challenged Boise's enforcement of its Camping and Disorderly Conduct
Ordinances against persons experiencing homelessness—those who need to sleep in public in the
absence of adequate housing or shelter. Last year, a panel of the 91" Circuit held that"as long as there is
no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping
outdoors, on public property, on the false premise they had a choice in the matter." Following that ruling,
the city of Boise petitioned the entire 91" Circuit to rehear the case ("en banc"), which was rejected in
April. Boise then asked the Supreme Court to hear the case and today the Court rejected that request,
thereby affirming that within the 91" Circuit, "the Eighth Amendment preclude[s] the enforcement of a
statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter."
"Despite the doom and gloom of the appellants and those who joined them in filing amici, this ruling is a
win for everyone," said Eric Tars, Legal Director at the Law Center. "Cities can still address
encampments on their streets, they just have to do it in constructive ways that reduce harm and actually
help end homelessness. Public health and public safety are best maintained by making sure everyone
has an adequate place to live, not by putting homeless people in jail or giving them fines and fees they
can't pay."
"We are pleased that the Supreme Court has let the 91" Circuit's holding stand that the Constitution
`prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for
homeless individuals who cannot obtain shelter,"' said Michael Bern, lead pro bono counsel from
Latham &Watkins, who argued the case before the 91" Circuit. "As the Department of Justice recognized
earlier in this case, `[c]riminalizing public sleeping in cities with insufficient housing and support for
homeless individuals does not improve public safety outcomes or reduce the factors that contribute to
homelessness.'With today's decision, we hope that cities can redirect their efforts to identifying
meaningful and constitutional solutions to the problem of homelessness."
This case is part of a nationwide movement against the criminalization of homelessness, spearheaded
by the National Law Center on Homelessness & Poverty and more than 1,000 groups and individuals who
have endorsed the Housing Not Handcuffs Campaign.
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