By Erica C. Barnett

King County Superior Court Judge Michael Ryan heard arguments last week in a case several homeless Burien residents filed against the city, which recently criminalized sleeping or “residing” outdoors 24 hours a day, effectively banishing unsheltered people from the city.

Originally, the plaintiffs, who were forced to leave an encampment on Ambaum Blvd. in Burien in December 2023, sued to stop an earlier version of Burien’s much-amended anti-homeless law. That version barred people from “exercis[ing] nontransitory exclusive control over any portion of nonresidential public property” (whatever that meant) and created a map of areas where “living” was prohibited at all times—giving the city manager unfettered authority to expand the prohibited areas without notice.

In January, the city completely banned sleeping or “residing” in the city without shelter at any time of the day or night, regardless of whether shelter is actually available, passing the new law on an “emergency” basis just three days before the deadline for both sides to file requests for summary judgment (a ruling without a trial) in the case.

Two of the Burien residents suing the city, Elizabeth and Alex Hale, got a temporary room at a hotel after Elizabeth Hale was discharged from a hospital at some point after they were forced to leave the encampment, but it’s unclear from the court record if they returned to being unsheltered after that stay ran out. A third plaintiff, Carlo Paz, is still unsheltered in the city.

In court on Friday, Northwest Justice Project attorney Scott Crain, who represents the Hales and Paz, made three basic arguments against Burien’s law, which the city adopted on an “emergency” basis . First, he argued that the total ban on sleeping anywhere in the city amounts to a restriction on the right to travel that’s guaranteed in the US and state constitutions, because it prohibits people from “residing” or sleeping in any public space, at any time, throughout the city of Burien.

Second, Crain argued that the ban on sleeping constitutes cruel punishment under the Washington State Constitution, because it bans people from engaging in a biological necessity—sleep—if they have nowhere to live except outdoors.

And finally, in a claim Crain said is likely to be more of a side note in the case, the plaintiffs say the law violates their right to protection against search and seizure, because it empowers police to riffle through, confiscate, and throw away people’s property, including property inside tents and other types of temporary shelter, in violation of basic privacy rights.

Under the new law, “Simply laying down to sleep, out of public view and not blocking any public right-of-way is now a misdemeanor in Burien and a person may be arrested and their property removed without prior notice,” according to a brief from the plaintiffs. “Making Burien one’s residence when one does not have a home is also a misdemeanor, since it is a crime to ‘reside’ on public property even if no other place to reside exists in Burien.”

In response, the city of Burien said that the ban on sleeping or living outdoors in the city can’t be considered cruel punishment because it applies equally to everyone, from an unsheltered person to a wealthy homeowner taking a quick snooze on the beach. They also argued, vehemently, that it’s inappropriate to decide whether the ban is unconstitutional until after the city has started enforcing it. And they claimed that there’s no constitutional right for people to “set up residence and exclude others” from public spaces.

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“Courtrooms, for example, are ‘public property,’ and even imbued with public access rights,” Burien’s outside attorneys, from the Seattle law firm Keller Rohrback, wrote in a brief. “Yet it does not follow that a tent can be pitched in the courtroom, giving rise to a privacy right against intrusion. Similarly, the public may enter public health centers, city council meetings and tour of the governor’s mansion. It does not follow that these become private residences because a tent is quickly pitched.”

Judge Ryan dispensed with that last hypothetical pretty quickly—noting that all those examples are limited public forums, not truly public spaces like parks—and pushed back on the city’s claim that the ban on sleeping falls equally on homeless people and “outdoor enthusiasts,” as they put it in their brief.

“So if I’m out with my family and we’re having a beautiful … sunny day in the park in Burien… and I decide I’m going to take a doze, take a sleep on my towel, I’m in violation of the ordinance,” Ryan said.

“Yes, I think you could,” Burien’s attorney Adam Rosenberg replied..

“And I could be arrested.”

“I think you could,” Rosenberg said, then added that the example illustrated the point that discussing any possible outcome of the law would be a “completely conjectural” conversation. In reality, he said, “the criminal justice system is far better equipped to vet the facts, deal with defenses and to discern whether any punishment” should happen. In other words: Police, prosecutors, and courts can decide in the future whether every type of person should be arrested under the law, or just the homeless people who the Burien city council, city manager, and city attorney have repeatedly said are the law’s intended targets.

“Citizens have the right to know how laws are going to be enforced, so they can make decisions in in confidence, knowing they won’t be arrested,” Ryan said. “And so I just don’t think this Court can take solace in the city saying, well, we wouldn’t do it like that.'”

The judge then raised another hypothetical: What if every other jurisdiction in King County, or even Washington State, followed Burien’s lead and passed a blanket ban on sleeping in public? Wouldn’t that create “an entire class of individuals who are, effectively, refugees in their own state?”

“I think that it would probably be a matter of the criminal justice system if there’s if everyone passed this law and there was no one nowhere to go and no shelter,” Rosenberg responded. “The hope is that there is shelter. The hope is that there are options.”

In reality, there is no year-round walk-in shelter in Burien and no shelter beds at all for single men, who make up the large majority of unsheltered homeless people throughout King County.

Seattle/King County Coalition on Homelessness director Alison Eisinger, whose organization is a co-plaintiff in the lawsuit, said after the hearing that she was struck by Judge Ryan’s questions line of questioning about a theoretical countywide ban on unsheltered homelessness. “What if every jurisdiction in King County passed this ordinance? What if every jurisdiction in Washington State passed this ordinance? Where are people supposed to go?”

“I hope that there’s going to be justice in this case,” Eisinger said. “That will not, in and of itself, be in any way a solution, but the way we get to implement solutions that work is by recognizing that we’re ultimately talking about human beings and their communities.”

Burien, which will consider severe cuts to its human services department this year, doesn’t have to just “hope” for shelter, Eisinger noted; they could built it—especially if they weren’t spending potentially tens of thousands of dollars on outside attorneys to defend against multiple lawsuits related to the city’s homelessness policies.

Judge Ryan said he planned to take time to consider both sides’ arguments rather than ruling from the bench last week; he didn’t say how long he would take, but it could be weeks or months, Crain said.

In the meantime, SKKCH is supporting state legislation from Rep. Mia Gregerson (D-33, SeaTac) that would require cities with restrictions on “sitting, lying, sleeping, or keeping warm and dry” in outdoor public spaces to ensure that those restrictions are  “objectively reasonable as to time, place, and manner.” If the bill passes, it would effectively bar total sleeping bans like Burien’s, and require cities to set restrictions that are possible for people to comply with—without simply leaving the city.

By Erica C. Barnett

With surprisingly little discussion, the Burien City Council passed a new law on Monday night criminalizing unsheltered homelessness in the city. The law bans unsheltered people from “camping” or “storing property,” such as tents or sleeping bags, anywhere in Burien, including sleeping in vehicles, making it one of the region’s harshest anti-homeless laws.

The legislation, which the King County Sheriff’s Office confirmed it will enforce, was rushed through as emergency legislation—meaning that it will take effect immediately—because, according to Burien City Attorney Garmon Newsom III, it creates an “incentive” for homeless people “to actually accept the offer of shelter treatment, [and] if there’s housing, housing.”

Last year, Burien passed a new law barring unsheltered people from “camping” in the city at night, and created a map where sleeping at any time was banned. The law also gave city manager Adolfo Bailon unfettered authority to expand the boundaries of “areas protected from unsheltered homelessness” at any time.

The King County Sheriff’s office, which provides police services to Burien, challenged that law on the grounds that it violated a Ninth Circuit ruling that barred encampment sweeps unless shelter was available. The Supreme Court overturned that ruling in the case Grants Pass v. Johnson, and the sheriff’s office now says it will enforce the new ban. Driving the point home, the law specifies that “[t]here is no requirement that beds, housing, shelter, or treatment be available, offered, or sought before enforcement of this ordinance.”

Sheriff Patti Cole-Tindall said her office believes that “this ordinance, as written, is enforceable, as it no longer contains vague language found from the prior ordinances nor does it allow the city manager to rewrite the boundaries of the no-camping zones at any time without notice. That said, I am asking the men and women of the King County Sheriff’s Office to continue to lead, as they do each day, with outreach and compassion while continuing to engage with regional service providers whenever appropriate.”

Newsom called the sheriff’s previous refusal to enforce the ban an “emergency” in itself—one that outweighed the “concern” that “the weather does seem to be arguably colder than it might typically be.” The sheriff’s office, he continued, was still “in violation” of its contract to provide police services, “but [it’s] less about the money and more about the impact, which is that it allows people to not have the incentive to actually accept the offer of shelter, treatment, [and] if there’s housing, housing.”

The city, Newsom continued, has been more than generous with its homeless population, permitting two buildings for formerly homeless people—a 95-unit permanent supportive housing project for chronically homeless people, run by the Downtown Emergency Service Center, and a 90-unit building for low-income families that will be operated by Mary’s Place. “It’s not as though Burien has not done anything in support,” he said.

Last year, Burien replaced its outreach provider, the established outreach organization REACH, with a group started by a Kirkland real estate broker called The More We Love, which began as a business offering private sweeps at a price of $515 for each “camper” it removed.

Councilmember Stephanie Mora called the city’s earlier partnership with REACH  “a massive failure” that didn’t house people or take them off the streets. “So I was very excited when we were able to cut that contract and give it to a new provider who could provide housing, and has been providing housing” to unsheltered people in Burien, she said. “I don’t know if you guys have noticed, but our streets are cleaner. We don’t have encampments anymore. We don’t have tents outside.”

Although Bailon claimed TMWL “created” a previously unidentified “housing option” for people removed from Burien encampments, the organization has never publicly presented any evidence showing it has provided housing to anyone, or that the people it directs to available shelter beds have ended up in housing or treatment.

Burien does not have a year-round shelter, and a 95-unit permanent supportive housing building run by the Downtown Emergency Service Center is reserved for chronically homeless people with disabilities. DESC confirmed that The More We Love has not referred anyone to its apartments in Burien.

Ironically, given how often Burien leaders claim Seattle is sending its unsheltered people to their city, the encampment Mora celebrated The More We Love for resolving was only closed down after the King County Regional Homelessness Authority—not The More We Love—transferred people living outdoors in Burien to temporary lodging in Seattle. Another Burien-based nonprofit provided short-term hotel stays for a handful of encampment residents.

The concept that people prefer to be unsheltered than “accept” housing and services is a longstanding myth grounded in a paternalistic belief that homeless people are lazy, entitled, or just don’t want to follow rules, like prohibitions on alcohol and illegal drugs in shelters.

In reality, the number of unsheltered people eclipses the number of shelter beds, and unsheltered people frequently articulate specific reasons they don’t want to sleep in crowded rooms full of strangers, including the lack of privacy, theft and assaults, curfews, and dehumanization by staff. People with addiction and mental health issues may also be banned from shelters for exhibiting the symptoms of their diseases.

Three homeless Burien residents, along with the Seattle/King County Coalition on Homelessness, sued Burien over its previous ban, arguing that it was vague, overbroad, and unenforceable. This morning, the city of Burien filed a motion arguing that because the city has now passed a new law that bans sleeping outdoors or in vehicles without exceptions, any complaints about the previous law are moot, and that the only remaining issues are whether a ban on unsheltered homelessness violates state constitutional strictures against cruel punishment, unlawful search and seizure, or restrictions on the right to travel.

Yesterday, the ACLU of Washington submitted a letter to the Burien City Council opposing the new ban, noting that even though Grants Pass removed a legal restrictions on sweeping people when no shelter is available, “the Court also acknowledged the need for humane and reasonable approaches to homelessness. The decision does not mandate the criminalization of homelessness, nor does it absolve local governments of their responsibility to provide adequate shelter and services.”

Councilmembers Hugo Garcia and Sarah Moore voted against the ban. Garcia called it an “emergency that’s not really an emergency” that would further endanger families with parents who could soon be facing deportation under Trump’s sweeping anti-immigration plan, and Moore highlighted the cruelty of banishing people without offering them anywhere to go.

“I will not vote to become a city that practices banishment,” Moore said. “I will not vote to become a city that ignores the reality of people’s bodies existing in time and space. I will not vote to become a city that commits to future planning for shelters and housing while giving itself a pass to ban people now in the present. I will not vote to be a city that offers a severe weather shelter on a 32-degree day and exile on a 33-degree day.”