Amicus Curiae Brief — City of Boise, Idaho, Petitioner v. Robert Martin, et al.

No. 19-247

In the

Supreme Court of the United States

__________________

CITY OF BOISE, IDAHO,

v.

Petitioner,

ROBERT MARTIN, LAWRENCE LEE SMITH, ROBERT

ANDERSON, JANET F. BELL, PAMELA S. HAWKES, AND

BASIL E. HUMPHREY,

Respondents.

__________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

__________________

BRIEF OF BOISE METRO CHAMBER OF

COMMERCE, INC. AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

__________________

CRAIG L. MEADOWS

Counsel of Record

THOMAS J. MORTELL

AUSTIN T. STROBEL

HAWLEY TROXELL ENNIS & HAWLEY LLP

877 Main Street, Suite 1000

P.O. Box 1617

Boise, Idaho 83701-1617

(208) 344-6000

cmeadows@hawleytroxell.com

Counsel for Amicus Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . ii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. The Ninth Circuit’s ruling stretches this

Court’s Eighth Amendment jurisprudence

beyond its limits . . . . . . . . . . . . . . . . . . . . . . . 3

B. The Ninth Circuit’s ruling will harm Boise

businesses, tourism, and the City’s

reputation by hamstringing the City’s efforts

to enact and enforce generally applicable

laws that place reasonable restrictions on

camping in public spaces. . . . . . . . . . . . . . . . . 5

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ii

TABLE OF AUTHORITIES

CASES

Ingraham v. Wright,

430 U.S. 651 (1977). . . . . . . . . . . . . . . . . . . . . . 1, 3

Powell v. Texas,

392 U.S. 514 (1968). . . . . . . . . . . . . . . . . . 1, 3, 4, 5

Robinson v. California,

370 U.S. 660 (1962). . . . . . . . . . . . . . . . . . 1, 3, 4, 5

CONSTITUTIONS AND STATUTES

U.S. Const. amend. VIII. . . . . . . . . . . . . . 1, 3, 5, 6, 12

Idaho Const. art. XII, § 2 . . . . . . . . . . . . . . . . . . . . . . 6

Idaho Code § 50-301 . . . . . . . . . . . . . . . . . . . . . . . . . . 6

OTHER AUTHORITIES

2019 State of the City, City of Boise, available at

https://www.cityofboise.org/departments/mayo

r/state-of-the-city/ . . . . . . . . . . . . . . . . . . . . . . . . 11

Rob Hayes, Planters, other obstacles being used to

block homeless camps in Los Angeles, ABC7,

July 10, 2019, available at https://abc7.com/

society/planters-other-obstacles-blocking-home

less-camps-in-la/5388218/. . . . . . . . . . . . . . . . . . . 8

1

INTEREST OF AMICUS CURIAE

Amicus, Boise Metro Chamber of Commerce, Inc.,

(the “Chamber”), is an Idaho non-profit corporation and

an association of businesses and business people in the

Boise metropolitan area. The Chamber currently serves

more than 1,800 member businesses, which represents

more than 120,000 employees. The Chamber, on behalf

of its members, serves as the Boise region’s advocate

for a vibrant and prosperous economy, and is concerned

with ensuring that Boise remains a great place to live,

visit, and do business.1

SUMMARY OF ARGUMENT

As thoroughly pointed out by City of Boise (the

“City”) in its Petition for Writ of Certiorari (the

“Petition”), the Ninth Circuit’s decision greatly expands

the “sparingly applied” substantive limits imposed by

the Cruel and Unusual Punishment Clause of the

Eighth Amendment and creates a conflict amongst

circuit courts. Pet. Sections I, II; see Robinson v.

California, 370 U.S. 660 (1962); Powell v. Texas, 392

U.S. 514 (1968); and Ingraham v. Wright, 430 U.S. 651

(1977). The Chamber agrees with the City that a grant

of certiorari is appropriate on the grounds that the

Ninth Circuit’s ruling is in conflict with this Court’s

1

Pursuant to Rule 37.6, the Chamber affirms that no counsel for

a party authored this brief in whole or in part and that no person

other than the Chamber and their counsel made a monetary

contribution to its preparation or submission. Pursuant to Rule

37.2, the Chamber provided notice of its intent to file its brief more

than 10 days prior to the due date. All parties have submitted

blanket consents to the submission of timely-filed amicus briefs.

2

precedent and because it creates a split of authority in

the circuits. Pet. 24–25.

While the Chamber joins its voice with the above

legal arguments raised by the City in its Petition, the

Chamber submits this brief primarily to express its

practical concerns about the effect of the Ninth

Circuit’s ruling on the Chamber, its members, and the

Boise business community. See, e.g., Pet. Section III.

Simply put, the Ninth Circuit’s ruling extensively

infringes upon the City’s exercise of police power –

granted by the Idaho Constitution and the Idaho Code

– to regulate conduct that affects the public health and

welfare of the City and its residents. In addition, the

Ninth Circuit panel’s decision elevates the interests of

the City’s homeless population over the interests of

other stakeholders in the community, including local

businesses. Moreover, the negative impacts of the

ruling are likely to extend far beyond the public sector.

Indeed, the consequences of the ruling also include

shifting the costs and burden to private businesses to

deal with (or simply, live with) problems associated

with homeless encampments in public spaces, damage

to businesses in the Boise community, damage to

tourism in the Boise community, and irreparable

damage to the City’s reputation as a great place to live,

work, and do business.

For these reasons, the Chamber urges this Court to

grant the City’s Petition.

3

ARGUMENT

A. The Ninth Circuit’s ruling stretches this

Court’s Eighth Amendment jurisprudence

beyond its limits

In the case of Ingraham v. Wright, 430 U.S. 651

(1977), this Court summarized the three ways in which

the Eighth Amendment’s Cruel and Unusual

Punishment Clause “circumscribes the criminal

process.” Ingraham, 430 U.S. at 667. First, “it limits

the kinds of punishment that can be imposed on those

convicted of crimes”; second, “it proscribes punishment

grossly disproportionate to the severity of the crime”;

and third, “it imposes substantive limits on what can

be made criminal and punished as such.” Ingraham,

430 U.S. at 667 (citations omitted). In referencing the

third substantive category, the Court recognized the

Eighth Amendment’s substantive limitation as

one “to be applied sparingly.” Id.

In Robinson v. California, 370 U.S. 660 (1962) this

Court recognized and adopted an “act-status”

distinction in evaluating the Eighth Amendment’s

limits on substantive criminal law, holding that it

violated the Eighth Amendment’s Cruel and Unusual

Punishment Clause for California to criminalize Mr.

Robinson’s status as a drug addict. Robinson, 370 U.S.

at 666–68. Six years later in Powell v. Texas, 392 U.S.

514 (1968) (plurality op.) this Court’s plurality opinion

again recognized the “act-status” distinction of the

Eighth Amendment’s substantive component in a

challenge to Mr. Powell’s conviction for public

drunkenness. Id. at 532. Critically, the Powell

4

plurality, in distinguishing Powell from Robinson,

noted that:

[Powell] was convicted, not for being a chronic

alcoholic, but for being in public while drunk on

a particular occasion. The State of Texas thus

has not sought to punish a mere status, as

California did in Robinson; nor has it attempted

to regulate appellant’s behavior in the privacy of

his own home. Rather, it has imposed upon

appellant a criminal sanction for public behavior

which may create substantial health and safety

hazards, both for appellant and for members of

the general public, and which offends the moral

and esthetic sensibilities of a large segment of

the community.

Powell, 392 U.S. at 532. In further distinguishing

Powell from Robinson, the Powell plurality also noted

that:

[t]he entire thrust of Robinson’s interpretation of

the Cruel and Unusual Punishment Clause is

that criminal penalties may be inflicted only if

the accused has committed some act, has

engaged in some behavior, which society has an

interest in preventing, or perhaps in historical

common law terms, has committed some actus

reus. It thus does not deal with the question of

whether certain conduct cannot constitutionally

be punished because it is, in some sense,

‘involuntary’ or ‘occasioned by a compulsion.’”

Id. at 533. Consistent with the Powell plurality, and as

already ably pointed out by the City, this Court has

5

never exempted from regulation purportedly

“involuntary” acts. Pet. 3. Indeed, such a holding

would, as Justice Marshall observed in Powell, remove

any “limiting principle” that would prevent the Court

from becoming “the ultimate arbiter of the standards of

criminal responsibility, in diverse areas of the criminal

law, throughout the country” and would significantly

undermine “common-law concepts of personal

accountability and essential considerations of

federalism[.]” Powell, 392 U.S. at 533, 535.

The Ninth Circuit’s ruling, which found that the

purportedly “involuntary” act of sleeping in public

spaces is substantively proscribed by the Eighth

Amendment’s Cruel and Unusual Punishment Clause

(unless burdensome conditions are met) serves as a

significant departure from the “act-status” principle

discussed in Robinson and the Powell plurality, and

thereby, stretches this Court’s prior Eighth

Amendment jurisprudence beyond its limits.

B. The Ninth Circuit’s ruling will harm Boise

businesses, tourism, and the City’s

reputation by hamstringing the City’s

efforts to enact and enforce generally

applicable laws that place reasonable

restrictions on camping in public spaces

As recognized by Judge Milan Smith in the sixjudge dissent to the denial of rehearing en banc, the

Ninth Circuit’s ruling “leaves cities with a Hobson’s

choice: They must either undertake an overwhelming

financial responsibility to provide housing for or count

the number of homeless individuals within their

jurisdiction every night, or abandon enforcement of a

6

host of laws regulating public health and safety.” Pet.

App 15a–16a. Given that performing any sort of

accurate, up-to-date “count” of Boise’s homeless

population is unworkable in practice, the de facto effect

of the Ninth Circuit’s ruling is to completely restrict

the City’s police power to enact and enforce generally

applicable laws geared towards proscribing camping in

public areas, and consequently, to create a de facto

“right” to camp and live in public areas. Pet. 27.

Notably, the Idaho Constitution provides that “[a]ny

county or incorporated city or town may make and

enforce, within its limits, all such local police, sanitary

and other regulations as are not in conflict with its

charter or with the general laws.” Idaho Const. art. XII,

§ 2 (emphasis added). This same broad police power is

echoed in the Idaho Code, which provides that “[c]ities

governed by this act shall be bodies corporate and

politic…and exercise all powers and perform all

functions of local self-government in city affairs as are

not specifically prohibited by or in conflict with the

general laws of the constitution of the state of Idaho.”

Idaho Code § 50-301.

Pursuant to the expansive grant of police power

that originates from both the Idaho Constitution and

the Idaho Code, the City enacted the two public

camping ordinances at issue in the instant case. The

Ninth Circuit, in ruling that the Eighth Amendment

effectively prohibits the enforcement of these

ordinances, completely restricts the City’s ability to use

its constitutionally-granted police power to regulate

camping in its public spaces.

7

The Chamber does not dispute that homeless

individuals, in the absence of adequate shelter, rely on

Boise’s public spaces to live, play, and relax. However,

businesses in the Boise area also rely on the physical

infrastructure of Boise’s public spaces, such as public

rights of way like roads and sidewalks, to bring in

business from Boise residents and visitors alike. Many

local businesses, particularly businesses in Boise’s

vibrant downtown – including Boise’s many

restaurants and shops – rely on business brought in

from residents and visitors who frequent Boise’s parks

and public spaces. This common need for, and reliance

on, public spaces creates significant potential pressure

points between the interests of Boise’s homeless

population and the interests of the Boise business

community.

In essence, by recognizing a de facto right to camp

in public spaces, the Ninth Circuit’s ruling elevates the

rights of the homeless to access and use public spaces

over the rights of anyone else, including business

owners, who rely on and/or use those same public

spaces. With the City stripped of its ability to

effectively regulate camping in public areas, problems

that formerly could have been (and likely were)

handled through the issuance of a citation by the City

now become the problems of other stakeholders,

including Boise’s business owners, who are ill-equipped

to do anything about it. Though well-intended, the

Ninth Circuit panel’s ruling has not, by judicial fiat,

solved the problem of homelessness. Instead, the

panel’s ruling effectively “kicks the can down the road”

to other stakeholders to deal with (or simply, live with)

8

the difficult situations associated with camping in

public areas.

This effect is noted in Southern California, where in

summer 2019, business owners took matters into their

own hands to prevent the proliferation of homeless

encampments. There, business owners placed

“homeless encampment prevention” devices (such as

planters and other objects) onto public sidewalks to

prevent homeless individuals from setting up tents or

other forms of shelter around their respective

businesses.2 These sorts of desperate self-help

solutions, in addition to being illegal, also serve, as

pointed out by Los Angeles Mayor Eric Garcetti, as yet

another kick of the can down the road to the businesses

on the next block.3 While the Chamber certainly does

not condone such ineffective and illegal self-help

methods, the recent occurrences in Los Angeles

underscore that the Ninth Circuit’s ruling has not

solved, or really even changed, the problem of

homelessness. Instead, the Ninth Circuit’s ruling has

simply shifted the costs and burden of public camping

from the homeless to other stakeholders (including

local businesses) who also use and rely on public

spaces.

By elevating the interests of the homeless to access

and camp in public spaces over the interests of local

2

Rob Hayes, Planters, other obstacles being used to block homeless

camps in Los Angeles, ABC7, July 10, 2019, available at

https://abc7.com/society/planters-other-obstacles-blockinghomeless-camps-in-la/5388218/

3

Id.

9

businesses that rely on those same public spaces, and

by shifting the cost and burden of camping in public

spaces from the homeless to other stakeholders (such

as local businesses), the Ninth Circuit’s ruling has

significantly and negatively impacted the Boise

business community.

One Chamber member, the Greater Boise

Auditorium District (the “District”), which operates a

large convention center (the Boise Centre) in downtown

Boise has, over the past year, dealt with the presence

of campers in the public space adjacent to Boise Centre.

Convention visitors, despite also noting the many

wonderful things about Boise’s downtown, made

comments about public campers that indicated that

public camping detracted from Boise’s otherwise

sterling reputation as a clean, walkable, vibrant city.

The District, in its contacts with Boise police, were left

with the impression that there was nothing that could

be done unless the campers became boisterous or set up

a tent immediately adjacent to the building or directly

in front of emergency ingress or egress.

Similarly, the Boise Convention & Visitors Bureau

(“BCVB”), an entity tasked with recruiting and

bringing conventions and other meetings to Boise, has

noted, based on observations during visits to Boise by

out-of-state convention planners, a marked increase in

Boise’s homeless population over the last year. This is

concerning to BCVB, because Boise’s cleanliness and

safety has always been a strength of the community

noted by event planners during past site visits, and has

contributed greatly to BCVB’s success in bringing

conventions and other events to downtown Boise.

10

BCVB is concerned that the proliferation of public

camping could, in the future, negatively impact the

City’s hard-earned reputation and hamper its ability to

bring events to Boise that stimulate economic activity

in the area.

Another Chamber member, CoreStrong Studio (the

“Studio”), a fitness facility located two doors down from

the Corpus Christi House shelter, deals with

significant issues related to public camping. While

public camping has not occurred on the sidewalk

directly in front of the Studio, the Studio recently felt

the effects of camping that occurs on the public

sidewalks approximately 50 feet away from its store

front. The Studio and its patrons witness these

campers openly urinating and defecating. The Studio

deals with trash and human waste on its property,

culminating with the discovery approximately six

months ago of a can filled with human feces in its

garbage can. The Studio witnesses drug deals in its

parking lot. The Studio estimates it has spent between

$15,000 to $20,000 installing fencing, security cameras,

and other measures to mitigate the burden that public

camping has placed on its business. The Studio

believes that public camping occurring near its

business directly impacts its ability to attract clients

that might otherwise use its services, and generally,

that public camping harms Boise’s reputation as a

great place to do business.

The above examples are just a small sample of the

costs and burdens shifted to the Boise business

community by the Ninth Circuit’s ruling. Given that

ruling, these types of situations and circumstances are

11

not only likely to persist, but also to increase in

frequency. Additionally, the Ninth Circuit’s ruling

threatens Boise’s hard-earned reputation as a

wonderful place to live, work, and recreate.

The Chamber is not unsympathetic to the plight of

Boise’s homeless, and is fully supportive of the City’s

efforts to raise funds and to expand infrastructure and

services for the City’s homeless population. Pet. 4. In

fact, at the September 18, 2019 “State of the City”

address, Boise Mayor David Bieter called for the

community to work toward ending family

homelessness, highlighting the recently opened New

Path Community Housing and the groundbreaking on

Valor Pointe, which are two current City projects to

combat chronic homelessness.4 In addition to

highlighting these two projects, the Mayor also

announced during the address that the City would be

teaming up with Ada County and others to focus

resources and expand services to serve Boise’s

homeless.5 In the Chamber’s view, these sorts of

focused, collaborative efforts at the local level are most

effective in addressing homelessness.

The Chamber believes the Ninth Circuit’s ruling to

have been well-intended. If affirmed, however,

Chamber members (and other Boise businesses) must,

without the power to do anything at all, suffer the

unfortunate collateral results of the ruling. The Ninth

4

2019 State of the City, City of Boise, available at https://www.city

ofboise.org/ departments/mayor/state-of-the-city/

5

Id.

12

Circuit’s ruling – in stretching this Court’s Eighth

Amendment jurisprudence beyond its current limits –

has elevated an issue best addressed by a

municipality’s police power to an issue of

Constitutional import. By so doing, it has shifted the

cost and burden of dealing with public camping to other

stakeholders, such as Boise’s business community.

The Chamber respectfully requests that this Court

grant certiorari and review the decision of the Ninth

Circuit. In so doing, the Chamber respectfully requests

that the Court take into account the ruling’s impacts

(and potential impacts) on the Boise business

community.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

CRAIG L. MEADOWS

Counsel of Record

THOMAS J. MORTELL

AUSTIN T. STROBEL

HAWLEY TROXELL ENNIS & HAWLEY LLP

877 Main Street, Suite 1000

P.O. Box 1617

Boise, Idaho 83701-1617

(208) 344-6000

cmeadows@hawleytroxell.com

Counsel for Amicus Curiae

SEPTEMBER 2019