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Law Firm: Spokane can Legally Enforce Homeless Laws

(The Center Square) — Spokane City Councilor Jonathan Bingle said the proposal he and Councilor Michael Cathcart submitted to regulate urban camping is essentially “dead” after being “deferred indefinitely” by the majority.

“It will not come up again unless they decide to revisit it,” he told The Center Square.

However, Bingle believes residents and business owners in areas “besieged” by crime tied to homeless encampments support the tougher rules endorsed by Mayor Nadine Woodward.

“I’m not done with this issue yet,” Bingle said on Monday. “I think our proposal deserves to be brought to the table and discussed and the public needs to be allowed to weigh in.”

Under Spokane’s current code, camping is not allowed on public property and a person cannot sit or lie on the sidewalk between 6 a.m. and midnight.

Bingle and Cathcart want those rules enforced and camping bans in some places, notably parks, along the river or with 100 feet of railroad viaducts.  They also wanted greater enforcement of “sit and lie” activities during regulated hours.

Last month, Council President Beggs told The Center Square in an email that the Bingle-Cathcart camping ordinance does not appear to be legal based on his 30 years of experience as an attorney practicing and teaching constitutional law.

He warned that, if approved, the regulations could put the city in “serious legal jeopardy.”

Beggs was referencing a Ninth Circuit Court of Appeals ruling in the Martin v. City of Boise case. Four years ago, the federal court found that prohibiting sleeping or camping on public property is unconstitutional when individuals do not have a meaningful alternative, such as shelter space or a legal place, to camp.

In 2019, the U.S. Supreme Court declined to hear an appeal of the case, which let the Ninth Circuit ruling stand.

Bingle said a report commissioned by the Downtown Spokane Partnership earlier this year clears up confusion that has kept many cities from taking action to restore public health and safety.

The law firm of Tonkon and Torp, based in Portland, Oregon, performed a study of legal cases emanating from Martin v. Boise and submitted findings to the Partnership in February.

The report said it is inaccurate that cities cannot act unless they have shelter beds for the entirety of the unhoused population. In all but two of the 13 studied court cases, cities prevailed for enforcing rules even if shelter space was limited.

The two cities that lost to challenges sought to exclude all homeless individuals from within their borders or enacted only superficial measures to adhere to the Ninth Circuit’s instructions, according to the report.

Judges have ruled that, if cities are actively working to comfort and care to the homeless, they can clear encampments that pose health and safety threats, the report stated. They can also implement restrictions on where and when people can camp, as well as laws on littering, urination, defecation, obstruction of roadways, possession and distribution of drugs, harassment.

“Spokane has undertaken extensive efforts to ensure that its ordinances comply with constitutional requirements. These not only comport with the letter of the law, but also the overarching principle that cities cannot punish their residents due to a lack of means,” stated the report.

Tonkon and Torp warned that the city allowing encampments to spread carries its own legal risks. These include exposure to lawsuits by businesses and residents stemming from economic harms, property damage, constitutional violations, among others.

Aside from legal risks, the report stated that Spokane’s non-enforcement of homeless activities results in a substantial interference with intended uses of public facilities. In addition, the city bears added costs to respond to emergency situations, damage to infrastructure and landscaping, as well as the loss of tax revenue when people no longer work or shop in a business corridor.

“Thoughtful enforcement of Spokane’s existing ordinances and policies addresses community needs,” the report stated.