Punishing people for camping outside when they have nowhere else to go remains unconstitutional in the federal court system’s Ninth Circuit, which includes Alaska. The Ninth Circuit Court of Appeals recently decided not to take up a case that threatened that precedent.
The latest court development is unlikely to have any practical effect in Anchorage, an Alaska civil rights lawyer says. With shelter space full, Anchorage officials continue to tread lightly around how and when they will clear unsanctioned homeless encampments.
And Anchorage Mayor Dave Bronson, speaking on political blogger Jeff Landfield’s podcast recently, said he won’t fight the underlying court decision.
“It wasn’t that bad of a decision,” Bronson said. “It’s created problems. But what it does is, it says you can’t punish the status of being homeless. And it says you can’t just keep moving people around and shuffling them around without good reason until you have a shelter space.”
Lawyers for the city and the American Civil Liberties Union of Alaska agree that good reasons do exist that justify clearing some camps, even when Anchorage’s shelter spaces are full. Homelessness experts estimate roughly 700 people are unsheltered in the city.
But the lawyers don’t agree on specifics. And the latest court decision didn’t clear those up.
Ruth Botstein is the ACLU’s legal director in Alaska. She said the facts around the latest case and court opinion add some new legal wrinkles, but none that seem relevant to Anchorage.
“So I think in the big picture, that’s right,” she said. “It doesn’t change the constraints that the municipality is operating under right now.”
The ACLU represented Anchorage campers who fought two of the Bronson administration’s attempts to clear large encampments this summer.
Last month, Municipal Attorney Anne Helzer told the Anchorage Assembly that there are three limited circumstances where she thinks the city is within the bounds of federal case law to clear camps, even when shelter spaces are full.
“One: Areas that are closed to the public,” she said. “So an example of that would be a third party getting a permit to rent a park for a specific purpose.”
That was the situation at Cuddy Family Midtown Park last month. Concert organizers held a ticketed, three-day music festival in the park. Many campers had set up in a vacant lot nearby, and in the park itself.
The city posted notices that campers had to leave the entire area ahead of the concert. The ACLU appealed. The vast majority of campers left the area, but that court challenge is still live.
Botstein said that conflict was the city’s own creation, caused by the city shutting down its winter shelters in the spring, forcing hundreds of people to camp outside.
City officials also said they were clearing the Cuddy Park area out of public safety concerns about how the concertgoers and campers might interact. Safety is an element of the Helzer’s second carveout for when the city could shut down an encampment, even when shelters are full
“Two: Where exigent circumstances posing a serious risk to human life or safety exist,” she said.
“Exigent circumstances” is a legal phrase that often comes up around policing, and usually applies to imminent dangers and emergencies. For example, Botstein said, a fire. She doesn’t think the concert fits.
Likewise, Botstein said she doesn’t think the city’s attempt to clear campsites en masse in Mountain View near Joint-Base Elmendorf Richardson last month was a legal way to address base security concerns. The ACLU appealed, and then the city suspended its effort there.
“Jumping the fence into JBER is an example we’ve heard, although I haven’t seen any specifics about that,” she said. “But, you know, that’s an individual problem we can deal with. If someone is breaking the law, the city has the tools to deal with that that don’t involve taking all the vulnerable residents of that area and making them move.”
That seems to align with something Bronson said on the podcast.
“We don’t punish people for being poor, for being homeless,” he said. “But we do punish people – everyone – for misbehaving. And that’s the portion we seem to have forgotten.”
Bronson’s homelessness coordinator Alexis Johnson said Wednesday that the city doesn’t have any other imminent plans for clearing large camps.
The municipal attorney’s third carveout was for maintaining accessibility. She cited compliance with the Americans with Disabilities Act as an example.
Botstein said she hasn’t looked at that one in detail, because the city hasn’t been using it.
While the ACLU is fighting on behalf of campers, Botstein said she wants people to understand the ACLU’s position.
“Our endgame is not: our public spaces have people camping in them forever. That’s not what we’re seeking,” she said. “What we’re seeking is to incentivize the city to create more sustainable solutions so that no one has to sleep in our public spaces, right? So that people have access to what they need: shelter, housing, food, water, services, support. And that means people have options and nobody has to live outside.”
The city’s legal department has been working on a policy to clarify and slightly expand when it will enforce no-camping rules. Municipal attorneys said the draft policy’s publication was imminent in mid-May, but it’s still not out. They did not respond to questions about the timeline.
Grants Pass, the Oregon city whose case the Ninth Circuit Court of Appeals decided not to hear, intends to appeal to the U.S. Supreme Court.
Jeremy Hsieh covers Anchorage with an emphasis on housing, homelessness, infrastructure and development. Reach him at jhsieh@alaskapublic.org or 907-550-8428. Read more about Jeremy here.
