Tough Truths About 'Boise'

How progressives weaponized a Circuit Court of Appeals case to entrench homelessness.

The number of people who do not have a house, apartment, or stable place of residence continues to grow in Oregon. Using a dicey measurement called PIT, for Point in Time, some bureaucrats have determined that, since last year, the number of officially homeless in Multnomah County is up 19-percent (to 6200, or 0.775-percent of the population). That’s a staggering number, especially considering that homelessness is down 31-percent in Clackamas County (to 400 in 2023) and down 4-percent in Washington County (to 770), and that the total population of Multnomah county is 400,000 less than that of Clackamas and Washington combined.

Worse, perhaps, the latest PIT count in my home county of Clatsop, on the north coast, claimed 892 of the estimated 42,481 residents are homeless. That’s 2-percent of the population—and well more than double the percentage in Multnomah county!

But PIT numbers are dicey at best. They’re required by HUD if municipalities want to qualify for an annual homelessness assistance award. In 2022, the tri-counties received $40.7-million from the feds. The entire state received $50-million, and Multnomah alone received $31-million.

And so, on a single day in midwinter, volunteers with more or less training interview people who come to a central location and/or go into the streets and shelters to collect data by asking questions provided on a standardized two-sided form. Where did you sleep last night? How long have you been in the county? How long have you been homeless this time? Are you experiencing mental illness? drug use? alcohol use? domestic violence? Etcetera.

The answers are compiled by the various participating agencies in charge of the PIT count and sent to a central organization to combine that data, often including previously gathered data from municipal sources as an effort to adjust for fluctuations in the homeless population.

Do you find it hard to trust data generated by organizations that benefit from greater tragedy? I do.

But we can all agree that homelessness is a growing problem. And lately its consequences have been made worse by the insistence of city and county bodies to attempt to comply with a zoning/homeless case called Martin v Boise.

In an attempt to stem their own increase in homelessness, the city of Boise, Idaho began using criminal laws that allowed for the physical detention and arrest of people who were in violation of its camping laws. Ten homeless persons, including Robert Martin, who had been cited and fined $150 for sleeping on the street, sued the city in 2009, claiming that punishing someone for sleeping on the street when they had nowhere else to go violated their 8^th Amendment rights. The District court granted summary judgment to the city after the city made changes to its ordinances to criminalize voluntary conduct, not homelessness per se.

The case went back and forth between the district and the Ninth Circuit Court of Appeals several times until 2019, when the Ninth Circuit upheld the plaintiff’s assertion that criminal penalties for sleeping on public property were unconstitutional, and denied further hearings. A municipality could use criminal penalties of arrest and detention only if a person refused to accept shelter provided by the municipality. The vast index of ordinances that fall below criminal law are allowed—think of zoning laws and motor vehicle laws that allow municipalities or police to ticket and regulate and, if found in violation, result only in fines.

The case was appealed to the US Supreme Court, which (as it generally does) refused to review the 9^th Circuit’s decision. Martin v Boise stands as law, but only for the 9^th Circuit states of Alaska, Arizona, California, Oregon, Washington, Idaho, Montana, Nevada, Hawaii, and Guam.

In response, municipalities throughout the 9^th Circuit simply stopped enforcing any rules against sleeping on the streets. City attorneys advised their councils that Boise forbids the regulation of camping unless the city can provide “appropriate shelter,” whatever that might be, for anyone and everyone claiming to be homeless.

That is clearly wrong reading of the very narrow ruling.

Ninth Circuit Court Judge Marsha noted that “only . . . municipal ordinances that criminalize sleeping, sitting, or lying in all public spaces, when no alternative sleeping space is available, violate the Eighth Amendment.” As noted by the Harvard Review, “To satisfy Judge Berzon’s ruling that a city cannot prosecute homeless people for sleeping in public when there are more homeless people than available beds in shelters, cities need simply to create some way to know that shelters are full or, because of restrictions, effectively so.” 

Thus the importance of continued escalation in the numbers of homeless captured by the PIT. If there are always too many people for the shelters a municipality can provide, there can be no enforcement.

Unfortunately, Boise isn’t the only impediment to rational homeless policies. The Oregon legislature, largely at the bullying of then-Speaker, now-Governor Tina Kotek, HB 3115 was passed in 2021, supposedly (but not really) based on the Boise decision. The law “Provides that local law regulating sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to public must be objectively reasonable as to time, place and manner with regards to persons experiencing homelessness.”

As yet another example of Portland political extremists getting their way regardless of the needs of the rest of the state, HB 3115 effectively bars any real homeless enforcement. 

The road back to a sane and rational policy that mixes compassion with common sense comes by repealing one bad law at a time. There is nothing people can do to change the Boise case, but HB 3315 can and should be repealed. It could be done by the legislature (unlikely) or by an initiative started by actual voters.

Over a century ago an obscure Clackamas county legislator named William U'Ren served a single term in the Oregon legislature. Wikipedia summarizes his work: "As a progressive, U'Ren championed the initiative, referendum, and recall systems. These measures were also designed to promote democracy and weaken the power of backstage elites. His reforms in Oregon were widely copied in other states."

We have reached a different point in time, one that makes no sense and helps almost no one. Oregon voters can restore sanity, one law at a time. Repealing HB 3315 is a good place to start.

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In addition to offering frequent comments in this ‘stack, Joshua Marquis served 25 years as the District Attorney in Astoria and is still furious about what the legislature is doing.