Supreme Court action on homelessness case unlikely to affect San Jose
A person’s race and ethnicity, and especially political party identification, is a strong indicator of their beliefs on government response to homelessness, according to a new survey. File photo.

    It seems San Jose will be largely unaffected by a recent federal court ruling prohibiting cities from criminalizing homelessness when the municipality doesn’t have adequate shelter space available to meet the needs of its homeless population.

    At the end of its term in December, the U.S. Supreme Court declined to hear an appeal to Martin v. City of Boise — letting stand a lower court ruling made on the grounds that arresting homeless people for sleeping in public, when they have nowhere else to go, is a violation of the protections against cruel and unusual punishment in the Constitution.

    The case first came before the federal district court in 2009 when seven homeless residents in Idaho sued the city for arresting them under laws prohibiting camping on public property. Now, cities across the nation are bracing for how the landmark decision could impact their local policies to bar homeless people from sleeping on public sidewalks and benches and sweeping them from parks.

    But here at home, San Jose leaders say the ruling won’t make a difference.

    “Cruel and unusual punishment is a question of criminal enforcement, and there is none of that in San Jose,” said City Attorney Rick Doyle.

    The city doesn’t have a criminal statute against camping on public property, the city attorney told San Jose Spotlight in an interview. But the city goes above and beyond to protect the constitutional rights of its homeless residents, Doyle said.

    For example, the city uses civil litigation to remove homeless encampments instead of criminal prosecution, Doyle said. And the city always gives 72 hours notice to residents before clearing out the camps — including an offer to help those people find temporary housing and services to help them get back on their feet, the city attorney added.

    “The end result is the same,” Doyle said. “But we don’t have to put people through the criminal justice system to get there. The key takeaway is — we are not Boise.”

    But Martin v. Boise does have implications that reverberate here in the Bay Area, said Nadia Aziz, a housing attorney with the Law Foundation of Silicon Valley. The social justice nonprofit used the case earlier this year to bolster its argument that the Mountain View City Council violated the Constitution when it voted to ban RVs that house a portion of the city’s homeless population from parking on the street overnight.

    “There is no alternative place for people who are now living in their RVs and cars to go in Mountain View,” Aziz said.

    By comparison, San Jose has a safe parking program for vehicles both in select city parking lots, and those owned by a few religious institutions — although the number of available spaces is limited and the city’s first safe parking program at the Seven Trees Community Center was closed amid complaints by neighbors.

    The housing attorney says there have been federal lawsuits challenging Doyle’s argument that San Jose is in the clear constitutionally because only criminal prosecution, and not civil litigation, qualifies as punishment under the 8th Amendment — but none have been successful.

    “Criminalizing poor people isn’t going to solve anything,” said David Low, a spokesman for Destination: Home, a nonprofit that works to reduce homelessness in San Jose. “The answer to our homelessness crisis lies in scaling the production of more housing that’s affordable to extremely low-income households.”

    But more affordable housing alone won’t cure San Jose’s homelessness epidemic said District 10 Councilmember Johnny Khamis.

    “I think we are moving in the right direction, finally,” Khamis said, noting the city has already purchased two hotels to use as temporary shelters and is working on a third.

    The Almaden Valley councilmember and Senate hopeful agrees that the high court’s decision won’t have an impact on San Jose.

    Khamis pointed to the city’s tiny home villages, two of which will open in 2020, and a homelessness prevention program that identifies residents on the brink of homelessness and provides a voucher to pay their rent or mortgage until they can get back on their feet or make other arrangements.

    Still, Khamis told San José Spotlight the city can’t shoulder the burden alone. He said the state and county need to do more to address root causes, especially among vulnerable populations.

    “All we ever talk about is the price of housing,” Khamis said. “We never discuss people coming out of prison, or with mental health problems or substance abuse issues. I think we need to look at the causes of homelessness and address them.”

    In her 2018 ruling for the United States 9th Circuit Court of Appeals against Boise, Judge Marsha Berzon cited another case decided by the 9th Circuit in 2007 — Jones v. The City of Los Angeles — in which the court opined that the city could not enforce its criminal statutes against “involuntarily sitting, lying, and sleeping in public… so long as there is a greater number of homeless individuals in Los Angeles than the number of available beds (in shelters) for the homeless.”

    In its 2019 appeal, Boise argued the decision creates “a de facto constitutional right to live on public sidewalks and in public parks,” and “impedes efforts by Boise and other cities to connect those living anonymously and transiently in sprawling encampments with resources available to help them.”

    “The tragedy is that the 9th Circuit’s decision harms the very people it purports to protect,” according to Theane Evangelis, an attorney representing the city of Boise. “It takes away an important tool cities have to stop the proliferation of permanent encampments, which undermine cities’ efforts to provide shelter and services to the most vulnerable.”

    Contact Adam F. Hutton at [email protected] or follow @adamfhutton on Twitter.

    Editor’s Note: Jennifer Loving, executive director of Destination: Home, sits on San José Spotlight’s Board of Directors.

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