What does a legal illegal-camping ordinance look like?

click to enlarge What does a legal illegal-camping ordinance look like?
Erick Doxey photo
Gabe Graham and his fiancee Jamie Boyd have been living in a tent along Latah Creek since April. A proposed Spokane City Council ordinance would make it illegal.

Ever since Army veteran Gabe Graham and his fiancee were kicked out of their Browne's Addition apartment in April, they've been living in a homeless camp in Spokane.

But not the big one — they're 5 miles west of the 600 people living at the Camp Hope encampment in East Central. And while a brand new homeless shelter just opened up on Trent Avenue with 75 new beds, Graham doesn't plan to seek refuge there.

"I can't do shelters — PTSD," Graham says, referring to post-traumatic stress disorder, a condition he says he's endured since he was shot in the chest and "took a bomb to the face" while serving with the 82nd Airborne in Iraq.

Instead, Graham and his partner have strung up tarps and set up their tent on the banks of the Spokane River, next to the bridge where Riverside Avenue crosses Latah Creek. The same place where, four decades ago, thousands of hippies camped during Expo '74.

They're not alone. There are encampments all over the banks of the Latah and Spokane.

Technically, all these encampments are illegal. In 2018, the Spokane City Council passed an ordinance that banned unauthorized camping on any public property. But until the Trent Resource and Assistance Center shelter opened last week, that ordinance hadn't been enforced, not since March 2021. Blame — or credit — the Martin v. Boise decision in 2018, in which the 9th Circuit Court of Appeals ruled that punishing a homeless person for sleeping outside when they had no other alternative was unconstitutional. In 2019, the Supreme Court denied Boise's petition to review the case, making the ruling binding in nine Western states.

In the four years since, cities in West Coast states, from Edmonds to Los Angeles, have tried to cobble together laws allowing them to enforce provisions restricting homeless camping in some areas of the city even when there is not enough shelter space, testing the murky waters of what the courts will allow.

And now it's Spokane's turn.

Over the last few months, the Spokane City Council and the city administration have been arguing over their own proposed revised camping ordinances, trying to find the balance between what's practical and what's legal.

"We've had about 24 drafts of this," Spokane City Council member Lori Kinnear says. "We worked through it, worked through it, making sure everybody is happy — and it's legally defensible."

REASONABLE ACCOMMODATIONS

After the Trent shelter opened last week, the Woodward administration made news. Twice.

First, the city began enforcing its camping ordinance and their "sit-lie" laws barring homeless people from sleeping or sitting on the sidewalk downtown during most hours. And second, it labeled Camp Hope a "nuisance property," threatening to sue the Washington State Department of Transportation if it didn't begin clearing the hundreds of homeless people from their property.

It's a move that risks sending hundreds of displaced homeless people out into the community. And Spokane City Council President Breean Beggs has doubts that the state even has the legal right to disband Camp Hope.

"The letter is really seemingly just a P.R. stunt," Beggs says.

Even with the Trent shelter open, he doubts there's enough shelter space open.

The reasoning of Martin v. Boise sounds simple enough. The ruling finds that punishing a homeless person for sleeping in public is the kind of "cruel and unusual punishment" outlawed by the Eighth Amendment. What's more, it says that "when no sleeping space is practically available in any shelter," a city can't forcibly remove people from sleeping or living in a public area. But what does "practically available" mean?

Scott Crain, a lawyer with the Northwest Justice Project, a legal aid program that assists low-income people, offers one standard.

"If there are spaces, then there's available shelter space," Crain says. "If there's not, then there's not."

In 2006, however, the 9th Circuit offered a far more sprawling standard in a case out of Los Angeles. "If there is a greater number of homeless individuals" in the city than "the number of available beds" at homeless shelters, then the city couldn't enforce their law prohibiting sleeping or sitting on public sidewalks. This ruling was cited in Martin v. Boise.

Either way, Crain argues that Spokane or the state wouldn't be able to shut down an entire homeless encampment of 600 people without having 600 beds available to take them.

"We say people have the right to live in whatever city they want," Crain says. "And if that city doesn't have homeless shelters, they can't criminalize homelessness."

Last Friday, Spokane city spokesman Brian Coddington said the standard for enforcement is whether there is "substantial available space." With the Trent shelter open, space exists. In other words, under Coddington's description of the standard, the city could presumably enforce laws moving hundreds of homeless people even if there were only 50 beds available at the city's shelters.

Beyond this, even the question of how many homeless people the Trent shelter can accommodate isn't clear. Beggs says the city administrator, Johnnie Perkins, told him on Monday that the capacity was currently 100. An August news release said the initial capacity was going to be 150, but would grow to 250 over time.

And Mike Shaw, who helps operate the shelter as CEO of the Guardians Foundation, said in a text message that their contract allows the shelter to ratchet up even higher than that, to more than 350.

The whole point of the shelter is to not have to turn anyone away, Shaw says. And he wouldn't.

"There's no full, full, full," he writes. "If I said 200 people showed up today, we would accommodate."

But even if you assume Trent shelter could accommodate up to 350 people — even if you add in the proposed 100 rooms of permanent supportive housing at the Quality Inn, and the 36 spots that were available at the House of Charity and the Cannon shelter on Friday, then you're still around 150 beds short of being able to shelter the campers just at Camp Hope.

Clearly, the question remains open regarding what the law says or if there's room for the more than 820 unsheltered people identified during this year's count in Spokane — which itself was almost certainly an undercount.

"We're not qualified to give a legal opinion," says Beth Bousley, spokeswoman for the state Transportation Department. "But the bottom line is that there is not enough capacity in the system to accommodate Camp Hope."

INTO THE GRAY AREAS

But there is a legal way to prohibit unauthorized camping, even if there's not enough shelter space: Narrow the map.

Even constitutional rights can typically be legally limited by "time, place and manner." Your free speech rights, for example, don't stop cities from banning you from yelling outside someone's home at 1 am.

The prohibition against "cruel and unusual punishment" pointed to in Martin v. Boise was no exception. The court explicitly stressed that the ruling does not "allow anyone who wishes to sit, lie or sleep on the streets... at any time and at any place."

That's why the Downtown Spokane Partnership has been arguing for months that the city already had the power to ban homeless camping within certain areas of the city, even when there wasn't available shelter space. The group hired the Portland-based law firm Tonkon Torp to analyze how different cities had handled the legal fallout from Martin v. Boise. In February, the firm released its findings. A few cities, like Grants Pass in Southern Oregon, had sweeping citywide anti-camping legislation struck down by courts.

But in other situations, like in Washington's Aberdeen and Hawaii, courts have allowed cities to prohibit homeless camping on specifically identified stretches of land.

"If the city basically zones out every public space for camping," which Spokane's ordinance did previously, it's probably unconstitutional if there's not enough shelter space, Crain says.

"But if the city says you can't sleep right next to a 55-mile-an-hour freeway," he says, that's probably legal. There's a lot of gray area.

The risk of a lawsuit can come from the other direction, too. Tonkon Torp pointed to a lawsuit against San Francisco for not removing homeless encampments.

"If you say that all of downtown is 'no camping,' people are going to go to Browne's Addition. West Central. Lower South Hill. You're just moving the problem around."

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In June, Spokane Mayor Nadine Woodward supported a proposal by the two conservative members of the council — Michael Cathcart and Jonathan Bingle. It would have banned any encampments of more than 25 people, any at City Hall, near parks, within a half-mile of homeless shelters, or anywhere in the Downtown Spokane Business District. It would have also banned camping in the other official business districts in Spokane, between 8 am and midnight.

But the council majority swatted the proposal down for being too expansive.

"If you say that all of downtown is 'no camping,' people are going to go to Browne's Addition," Kinnear says. "West Central. Lower South Hill. You're just moving the problem around."

That frustrated Bingle.

"This isn't even as expansive as LA's, and theirs has not been successfully challenged at court," Bingle says. Indeed, Los Angeles has 400 different sites specifically designated as zones where camping isn't allowed.

But LA has had trouble enforcing its ordinances, too. Nine months after the ordinance passed, the Los Angeles Times reported that a grand total of two citations had been issued for camping in these banned areas. According to the Times, the lack of enforcement is in part because the city doesn't have enough shelter space.

Next week, the Spokane City Council plans to vote on a narrower alternative designed by Kinnear and Beggs. Even when there's not enough shelter space, it would ban camping anywhere within three blocks of any homeless shelter or within 50 feet of any railroad viaduct within the Spokane Police Department's Downtown Precinct. It gives police a more ambiguous power — if they conclude the camp threatens "public health or safety" or disrupts "vital government services," they can uproot a camp.

And finally, citing environmental reasons, it specifically bars camps along Latah Creek and the Spokane River.

Cathcart wants to amend it. Grudgingly, Bingle plans to support the much narrower ordinance, though he puts Kinnear's question back to her: "Where would they go?"

And Graham — the homeless camper along Latah Creek — would vote against the ordinance if he could.

"I think I should be able to camp anywhere I want," Graham says. "Took a bullet for this country. Took a bomb for this country. Almost died." ♦

Valleyfest @ Spokane Valley

Sun., Sept. 25
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About The Author

Daniel Walters

A lifelong Spokane native, Daniel Walters is the Inlander's senior investigative reporter. But he also reports on a wide swath of other topics, including business, education, real estate development, land use, and other stories throughout North Idaho and Spokane County.He's reported on deep flaws in the Washington...