Lately in Anchorage, municipal officials and employees have responded to inquiries by reporters and frustrated taxpayers about the trashing of Anchorage’s greenbelt parks by campers in the parks by claiming that a ruling out of the U.S. Court of Appeals for the Ninth Circuit ties their hands to resolving the issue. Given the repeated references to this ruling, the public should have the ruling and know exactly what it says and does not say.

(Note: This article does not address solutions for homelessness, the State budget, or the Municipality of Anchorage’s recent declaration of a civil emergency. This article is merely meant to inform the public as to what a court case says and does not say so that the reader will be informed when a municipal official or employee talks about the scope of the ruling.)

Martin v. City of Boise

The Ninth Circuit case municipal officials and employees are referencing is Martin v. City of Boise. In Martin, six former or currently homeless persons sued the City of Boise in federal court to invalidate the previous misdemeanor citations that they had received for violating Boise’s city ordinance that makes it a misdemeanor to use “any of the streets, sidewalks, parks, or public places a camping place at anytime.” Boise City Code 9-10-02 (referred to for the remainder of this as the “Camping Ordinance”). Two of the plaintiffs were still homeless in Boise and they also asked the federal court to enjoin Boise from enforcing the Camping Ordinance in the future.

The homeless lost at the trial court. U.S. Magistrate Judge Ronald Bush upheld the constitutionality of the Camping Ordinance. But the Ninth Circuit reversed the trial court.

A quick detour is necessary to explain the uniqueness of the Ninth Circuit. The Ninth Circuit is a gargantuan circuit, whether you look at its size geographically, by number of judges, or based on the number of appeals it decides. It encompasses the states of Alaska, Hawaii, Arizona, California, Nevada, Idaho, Montana, Oregon, and Washington. It has 28 active judges, and 18 senior judges (semi-retired judges), for a total of 46 judges. And during a single year, roughly 11,000 appeals are filed in the Ninth Circuit, which is 3,500 more than the next busiest circuit (Fifth Circuit). Typically, an appeal to the Ninth Circuit is presided over by a three-judge “panel.” Each panel is randomly comprised, and litigants don’t know which three judges you have drawn until a week or so before you argue your case.

Returning to Martin, after the homeless plaintiffs appealed their loss in trial court to the Ninth Circuit, it was assigned to a three-judge panel. That three judge panel reversed the trial court’s ruling and held that the 8th Amendment’s prohibition of cruel and unusual punishment barred Boise from enforcing the ordinance as to some individuals. Specifically, the Ninth Circuit held:

Our holding is a narrow one. Like the Jones panel [a prior panel from a different Ninth Circuit decision], we in no way dictate to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie or sleep on the streets at any time and at any place. We hold only that so long as there is a greater number of homeless individuals in a jurisdiction than the number of available beds in shelter, the jurisdiction cannot prosecute homeless individuals for involuntarily sitting, lying and sleeping in public. That is, as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.

In a subsequent opinion, the Ninth Circuit affirmed the “limited nature of the [Martin] opinion.”

After the Martin panel issued its ruling, Boise sought review by the en banc court of the Ninth Circuit. The en banc court is an 11-member panel of Ninth Circuit judges, and it is comprised of the Ninth Circuit’s chief judge, and 10 other randomly selected active judges (senior judges cannot take part in the en banc procedure). Because of the Ninth Circuit’s size – remember it has 29 active judges – it is the only circuit where the “en banc” court is comprised of a fraction of the active judges. In every other circuit, the en banc court is comprised of all of the active judges in the circuit. En banc review is granted if a majority of active Ninth Circuit judges (15 judges out of 29) vote in favor of that review. In Martin, no en banc review was granted because a majority of judges did not vote in favor of it.

But on April 1, 2019, Judge Milan Smith of Oregon issued a pointed dissent that sharply criticized the Martin panel’s decision and the active judge’s refusal to grant en banc review by an 11-member panel. Judge Smith pointed out that no other Circuit across the United States has issued a ruling that the 8th Amendment prohibits criminal enforcement of ordinances that prohibit camping on public property. Judge Smith argued that that the panel’s decisions conflicted with decisions from the Fourth and Eleventh Circuits that punishing a homeless person’s conduct – camping, drinking, shooting drugs – did not implicate the 8th Amendment, whereas punishing the status of a person – homeless, alcoholic, drug addict – was constitutionally impermissible. In other words, in his view, a city cannot punish someone merely for being homeless, but it can punish that same homeless individual if he or she engages in illegal conduct. Judge Smith pointed out that the California Supreme Court had come to the same conclusion as the Fourth and Eleventh Circuits.

Boise is asking the U.S. Supreme Court to review the Martin decision. On June 3, 2019, Boise filed its notice of appeal to the U.S. Supreme Court. Boise’s opening brief asking the U.S. Supreme Court to review the Ninth Circuit’s decision must be filed by August 29, 2019.

Engle v. Municipality of Anchorage

There is another court case that Alaska readers should be aware of: Engle v. Municipality of Anchorage (Alaska Superior Court 2010). In Engle, Alaska Superior Court Judge Rindner permanently enjoined the Municipality from enforcing AO 2016-63. That ordinance amended the provision of the Anchorage Municipal Code that authorized the city to abate illegal campsites by removing all belongings from the illegal campsite five days after posting notice at the site that abatement was to occur. Judge Rindner ruled that AO 2016-63 violated due process because it did not require the city to retain possessions found at the campsite worth $50 for at least 10 days for illegal campers to recover if desired. The court reasoned that this threshold value and days of notice was required of “found” property that comes into the possession of the Anchorage Police Department, and saw “no reason why the Municipality cannot treat the property of the homeless in a similar fashion.” It is unknown why the Municipality did not appeal the Engle decision to the Alaska Supreme Court.

Bottom line: Engle prevents the Municipality from confiscating items of $50 or more from campsites and immediately disposing of them. They must hold onto items worth $50 or more for at least 10 days, so that the camper has a chance to recover the property. Engle does not prevent the Municipality from disposing of items worth less than $50 at any time, such as obvious garbage, bicycle parts, propane tanks, etc.

Analysis:

A few things immediately come to mind reading the Martin decision.

First, its wording leaves a lot of room for local governments to take action to deal with campers in public parks. As the Ninth Circuit emphasized, its holding is “narrow,” meaning it means what the words say and not more and not less. Here is the holding again in the Ninth Circuit’s words: “On the merits, the opinion holds only that municipal ordinances that criminalize sleeping, sitting, or lying in all public places, when no alternative sleeping space is available, violate the Eighth Amendment.” (italics by the Ninth Circuit). That means that Martin appears to prohibit only the enforcement of a city ordinance, that (1) imposes criminal punishment, as opposed to civil enforcement, (2) on a bona fide homeless person, (3) for sleeping, sitting or lying in a public park, and (4) when the government has not provided another place for the homeless to sleep, sit or camp.

The decision does not purport to limit civil enforcement of ordinances, or criminal punishment that is not related to sleeping, sitting or lying in a public park. For example, the Martin decision does not by its own terms prohibit a Municipality from prohibiting camping in all public parks but one. It doesn’t prohibit the government from confiscating personal items, such as propane tanks, bags of trash, bikes, etc. It doesn’t prohibit the enforcement of littering ordinances or pollution laws.

Second, Martin is controlling law within the Ninth Circuit, but may be overturned by the U.S. Supreme Court. As mentioned above, the Ninth Circuit is the only U.S. Court of Appeals that has issued a ruling like Martin. Boise is actively seeking review by the U.S. Supreme Court, and the Ninth Circuit panel that decided the case admits that no other Circuit court has issued a ruling like Martin. But other U.S. Courts of Appeal have rejected the rule that Ninth Circuit adopted. So-called splits in rulings among the U.S. Court of Appeals is a common predicate for the U.S. Supreme Court granting review of a case.

Third, the Alaska superior court’s decision in Engle, not the Ninth Circuit’s ruling in Martin, appears to be governing the Municipality’s conduct regarding personal possessions. The Ninth Circuit’s decision in Martin does not speak to personal possessions. Is the Municipality reading the Engle decision to prohibit it from taking action on trash at campsites or other personal property being stored in its public parks? That is not what that the Engle decision says.

Conclusion

The next time an elected official or public employee cites the Ninth Circuit as the reason the city cannot do something to improve Anchorage’s public lands, read the Martin case yourself and decide whether the Ninth Circuit’s ruling prohibits the City from taking action. Also, stay tuned for whether the U.S. Supreme Court grants review of Martin, which would likely mean it will be reversed and the Ninth Circuit brought into line with the other Circuits.

Lee Baxter is a practicing Anchorage attorney. He provides periodic legal analysis for the Landmine in his spare time – when he is not fishing. 

Note:  This article has been updated to reflect the Ninth Circuit currently has 28 active judges and 18 senior judges for a total of 46 judges (previously it incorrectly stated that there were 29 active judges and that there were 45 total judges). It has also been revised to use the correct pronoun for Judge Milan Smith.