Law Review: Arresting homeless: cruel and unusual punishment? |

Law Review: Arresting homeless: cruel and unusual punishment?

“The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” — Anatole France.

I’ve always loved that quote from the Red Lily.

Today’s Law Review discusses a federal lawsuit filed by six homeless residents of the City of Boise.


Boise has a significant and increasing homeless unsheltered population, by most accounts just under 1,000 any given day. While the City of Boise has no emergency shelters, there are three provided by private, nonprofit organizations, but they have a limited stay period and on occasion are fully booked leaving homeless individuals on the streets at night.


Boise has two homeless ordinances: the first, the “Camping Ordinance” makes it a misdemeanor to use “any of the streets, sidewalks, parks, or public places as a camping place at any time.” Boise also has the Disorderly Conduct Ordinance which bans “occupying, lodging, or sleeping in any building, structure, or public place, whether public or private … without the permission of the owner or person entitled to possession or control thereof.”


The six homeless claimants sued claiming enforcement of the Boise codes is a violation of the Cruel and Unusual Punishment clause of the Eighth Amendment.

The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Short and sweet. The third leg of the Eighth Amendment – limits what the government may criminalize – is the thrust of the lawsuit.


The Ninth Circuit Court of Appeals analyzed the Eighth Amendment argument noting, “even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.”

The Courts concluded that the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter. “Whether sitting, lying and sleeping are defined as acts or conditions, they are universal and unavoidable consequences of being human … here, the two ordinances criminalize the simple act of sleeping outside on public property, whether bare or in a blanket or other basic bedding … the state may not criminalize the state of being ‘homeless’ in public places … the state may not criminalize conduct that is an unavoidable consequence of being homeless – namely sitting, lying, or sleeping on the streets.”

The Court of Appeals concluded that as long as there are times where there are no beds for the homeless, the homeless cannot be criminally prosecuted for their situation of being homeless.


The Court made it clear that it was in no way dictating to the City of Boise that it must provide sufficient shelter to the homeless, or allow anyone who wishes to sit, lie or sleep on the streets at any time in any place. But rather as long as the number of available beds and shelters is limited, Boise could not prosecute homeless individuals for the crime of sleeping in public.

In a footnote the Court went out of its way to make clear that jurisdictions can at times criminalize the act of sleeping outside, for example an ordinance could bar the obstruction of public rights of way or the erection of certain structures (like tent-cities).

We’ll see what Trump’s Supreme Court does. I could see Justice Kavanaugh asking, “Why don’t they rent a motel room?”

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at or

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