“Don’t Sleep in the Subway, Darling” . . . And Do Not Arrest Sidewalk Sleepers in Violation of the Eighth Amendment

Martin v. City of Boise, 2018 (9th Cir. 2018)

No doubt you remember the 1967 number one hit by British pop star Petula Clark, “Don’t Sleep in the Subway, Darling” (or, maybe not). In the Queen’s English, Clark was referring not to an underground train, but to the sidewalk tunnel passing under a British city street. When Robert Martin and five of his fellow plaintiffs were arrested for camping and sleeping on the “streets, sidewalks, parks, or public places” of Boise, Idaho, they sued.

City officials established a protocol prohibiting police enforcement of the public camping ordinance on any night the city’s various homeless shelters—operated by various faith groups—were full. However, if there was space available in the shelters, police could cite or arrest sidewalk campers. Martin and his fellow homeless plaintiffs alleged a violation of the Eighth Amendment prohibition on cruel and unusual punishment.

The court held “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” In other words, homelessness can’t be criminalized. The court was careful to observe it was not requiring the city to provide shelters, only barring the city from enforcing the public camping ordinance against the homeless.

Two of the plaintiffs complained they were forced to choose between staying in a shelter – where they would be listening to religious messages and sleeping in room with religious art on the walls – and camping on the streets. One plaintiff claimed he was forced to listen to religious preaching before being fed at one shelter. The court observed the “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 court’s majority and dissenting/concurring opinions are long and speak to other procedural issues. This much is clear: be cautious about citing or arresting for sleeping on the subway (or sidewalk). The officer on the street is often tasked with societal issues that community and government leaders can’t or won’t solve. Sometimes these are large issues with broad reach. Nonetheless, the officer on the street always has the power and the choice to deliver respect and kindness where other individuals and institutions don’t.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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