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Court rules in favor of homeless sleeping outside after Boise case 

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  • Young Kwak

Prosecuting homeless people for sitting or sleeping outside when there is no shelter space available is cruel and unusual punishment in violation of the Eighth Amendment, according to a recent ruling from the Ninth Circuit Court of Appeals.

The case, which went before a three-judge panel, involves two Boise city ordinances, which were challenged by six people who'd been cited for sleeping outside. They pointed out that either shelters were full, or they were not permitted to stay at one of the religious-based shelters because they'd either reached a time limit or declined to participate in required religious programming.

"A city cannot, via the threat of prosecution, coerce an individual to attend religion-based treatment programs consistently with the Establishment Clause of the First Amendment," the 2-1 opinion states.

While the decision doesn't require cities to provide shelter, it also says that if there isn't sufficient shelter space that doesn't require someone to participate in a religious program, the city cannot enforce its anti-camping rule. One judge, in a partial dissent, disagreed that the city can be barred from future enforcement of the ordinances.

The ruling does not appear to impact Spokane's own ordinance making it a misdemeanor to sit or lie down in the downtown core, because it includes language preventing it from being enforced when shelter space is not available.

"If there is not room for someone in a shelter, then the police department will not be issuing citations," says City Attorney Mike Ormsby.

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