By Erica C. Barnett

The Seattle/King County Coalition on Homelessness and three homeless Burien residents, represented by the Northwest Justice Project, filed a lawsuit against the city of Burien on Wednesday over the city’s “camping” ban, which makes it a misdemeanor to sleep, prepare food, use items like sleeping bags or backpacks, or otherwise “live” in public spaces in the city.

The ordinance does say police can’t enforce the law if there is no shelter “available,” but doesn’t explain what “available” means, or how broad of a geographic area that term encompasses. Currently, there are no year-round nighttime shelter beds in Burien, so the city has been referring people to shelter out of town, essentially deporting its own homeless population to places like Kent, Auburn, and Seattle. “By criminalizing the very act of being homeless in the City of Burien, the City of Burien is attempting to banish homeless individuals from the City of Burien,” the lawsuit says.

The law, SKCCH director Alison Eisinger said, “makes it impossible for [unsheltered] people to be in Burien. And what we’ve seen … is that far more effort has gone into drafting and writing and arguing about this unconstitutional ordinance than has gone into answering the question, where should Burien residents who don’t have homes find safety, stability, and support?”

“What this ordinance is trying to do is banish them for being homeless,” NJP attorney Scott Crain said. “The effect of the ordinance appears to be to sweep people out of Burien entirely.”

According to the lawsuit, Burien’s law violates several provisions of the Washington State constitution, including the state prohibition on cruel punishment, the right to due process, the right of homeless people to be “free from disturbance in their private affairs,” and the privileges and immunities clause, which prohibits discrimination.

Of all the attempts to criminalize homelessness across Washington state, “The Burien ordinance certainly stands out in its vagueness, but also its breadth, Crain said. Even many of the officials who drafted and voted for the law offered conflicting explanations about what it does and when it applies, Eisinger noted. “This law and its intent are nearly incomprehensible,” she said.

The ordinance, which bans people from “camping, dwelling, lodging, residing, or living on nonresidential public property” at all hours of the day (with an exception for unspecified “permits”), amounts to “an intent to banish homeless people” from the city, because it deprives them of the ability to protect themselves from the elements or do things necessary to live, like sleep, Crain said—plus, if taken literally, it could prohibit people from having picnics in city parks, because it bans all “cooking equipment use or storage” in public spaces.

The ordinance does include a vaguely worded exception for “permitted” encampments in public spaces, but these appear to be theoretical; in months of debate about whether to allow a single 35-unit pallet shelter anywhere in the city, Burien officials have not publicly discussed permitting an encampment on public property, much less permitted one. As the lawsuit notes, Burien’s homeless residents remain at constant risk (and must live in fear) of being displaced and losing their personal belongings in sweeps.

The city started enforcing the sleeping ban on December 1, when police swept an encampment on Ambaum Way. Although no one was arrested, the city did not offer shelter to everyone, telling some encampment residents they should seek out shelter in Seattle, about an hour’s bus ride away. When some took refuge at a church nearby, the city threatened to sue because the church lacked a temporary-use permit for the encampment.

“The City of Burien has not released plans or guidance to homeless individuals in the City of Burien, explaining the steps the City of Burien intends to take to enforce the ordinance, where individuals are permitted to camp, or how shelter offerings will be made available,” the lawsuit says. “Moreover, the City of Burien has yet to release plans explaining how it intends to ascertain available shelter capacity on any given night and which shelters it will consider in making such a determination.”

A spokeswoman for the city of Burien said she could not comment on pending litigation.

As we’ve reported, Burien’s ordinance is modeled on a similar ordinance in the city of Bellevue, and raises some of the same issues around people’s right to survive in public. (One key difference is that Bellevue, unlike Burien, does have a year-round men’s shelter.) Both ordinances criminalize sleeping outdoors if shelter is unavailable, and empower police to enforce the law.

Somewhat unusually, both the Burien and Bellevue law give police the authority to arrest unsheltered people if, in an officer’s opinion, they’re engaged in  “voluntary actions such as intoxication, drug use, unruly or assaultive behavior, or violation of shelter rules”—a provision that suggests disabilities like substance use disorder and mental illness are voluntary choices, Crain said. “That is also unconstitutional cruel punishment, in the sense that there is no shelter for somebody because of their disability.”

Because this lawsuit is based on the state constitution, which has stronger protections against cruel punishment than the US constitution, Crain says it won’t be directly affected if the US Supreme Court effectively overturns the landmark Martin v. Boise ruling, in which the US Ninth Circuit Court of Appeals ruled that cities can’t force homeless people to move if there is no shelter available. Seattle City Attorney Ann Davison wrote an amicus brief asking the Supreme Court to overrule the Ninth Circuit in that case, Grants Pass v. Johnson, and allow cities to conduct sweeps without offering shelter.