By Erica C. Barnett
On Tuesday night, after more than four hours of public testimony mostly favoring the move, the Mercer Island City Council voted to pass an ordinance barring people experiencing homelessness from sleeping outdoors or in their vehicles inside the boundaries of the wealthy suburban enclave. As PubliCola reported Monday, the new law empowers police to remove anyone living unsheltered from the island, either by driving them to shelter in Bellevue (five miles away) or Kirkland (11 miles away) or by sending them to jail in another city for up to 90 days.
PubliCola covered the public comments—which focused largely on the evergreen fear that “homeless addicts” would victimize women and children and litter the island with needles and feces—and vote on Twitter as they happened. Only one council member, Craig Reynolds, voted against the proposal, which goes into effect on March 1.
But that may not be the end of the story for Mercer Island’s homeless ban. (Local media, adopting the whimsical language used by proponents of such laws, have referred to the bill as a ban on “camping.” In fact, it prohibits anyone without housing, who are disproportionately people of color, from sleeping on the island after dark; a more apt metaphor would be a sundown law.)
To understand the potential avenues for a legal challenge, it’s important to know a little bit about a landmark 9th Circuit District Court ruling on homelessness, Martin v. Boise, which established that cities cannot ban sleeping, sitting, or lying in public spaces unless there is adequate available shelter for people to utilize as an alternative.
“Any ban on camping in most of Washington likely can’t comply with Martin v. Boise, just by sheer numbers: How many people are unhoused in the cities versus how many shelters are available.”—ACLU of Washington staff attorney Breanne Schuster
Put plainly, the ruling means that cities like Seattle can’t enforce encampment bans unless there is adequate shelter available for every homeless person the city wants to remove from public spaces. The definitions of adequate and available have been a source of heated debate ever since.
“Really any ban on camping in most of Washington likely can’t comply with Martin v. Boise, just by sheer numbers: How many people are unhoused in the cities versus how many shelters are available,” ACLU of Washington staff attorney Breanne Schuster said.
The next question, she said, is, “Are those shelters acceptable?” The four shelters to which Mercer Island plans to send people caught sleeping outdoors are far away, small, crowded (a particular concern during the ongoing pandemic), high-barrier, and often full; any of these factors could be used as an argument that the shelter isn’t really “available” or acceptable for a particular person. The Ninth Circuit “made pretty clear that you can’t, for example, force somebody to adhere to a religious doctrine or practice a religion to access a shelter,” or be “clean and sober,” Schuster said.
“In Washington, at least, substance use or abuse can be considered a disability” subject to civil rights protections, Schuster added—another potential avenue of attack on the ordinance, which defines substance use as one of many possible “voluntary actions” that a person can take to reject available shelter by refusing to follow whatever rules the “available shelter” happens to impose on clients.
The one men’s shelter to which Mercer Island plans to send people requires not only sobriety but government-issued ID, which many people experiencing homelessness do not have. Other actions that the law defines as “voluntary” rejection of shelter include behaviors that are common among people with poorly managed or untreated mental illness, including “unruly and/or assaultive behavior and like behaviors.”
But the biggest issue Schuster sees, she says, is that Mercer Island doesn’t have any shelters; its plan is literally to ship homeless people to shelters in other cities miles away—cities that have not agreed to set aside a certain number of shelter beds to receive people from Mercer Island.
“Especially with the number of jurisdictions that are starting to implement these types of bans, I think we’re going to see an entire region where it’s illegal to live if you can’t afford a home there,” Schuster said. This, like the resistance to shelters on the Eastside in general, bodes poorly for a “regional approach to homelessness” that only stands even a faint chance of success if areas outside Seattle see homelessness as something other than a “Seattle” or “King County” problem.