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the false premise they had a choice
in the matter.
As applied to the homeless plaintiffs in this case, the appeals court
found the challenged ordinances " effectively punish them for something
for which they may not be convicted
under the Eighth Amendment -
sleeping, eating and other innocent
conduct. " As noted by the court,
" the two ordinances criminalize the
simple act of sleeping outside on
public property, whether bare or with
a blanket or other basic bedding. "
As characterized by the federal appeals court, the Disorderly Conduct
Ordinance, on its face, criminalized
" [o]ccupying, lodging, or sleeping
in any building, structure or place,
whether public or private " without
permission (Boise City Code § 6-0105). Similarly, the court found the
Camping Ordinance criminalized
using " any of the streets, sidewalks,
parks or public places as a camping
place at any time " (Boise City Code
§ 9-10-02). Moreover, the court noted the ordinance defined " camping " broadly:
The term " camp " or " camping "
shall mean the use of public property as a temporary or permanent
place of dwelling, lodging, or residence, or as a living accommodation at any time between sunset
and sunrise, or as a sojourn.
Indicia of camping may include,
but are not limited to, storage of
personal belongings, using tents or
other temporary structures for sleeping or storage of personal belongings, carrying on cooking activities
or making any fire in an unauthorized area, or any of these activities
in combination with one another or
in combination with either sleeping
or making preparations to sleep (including the laying down of bedding
for the purpose of sleeping).

Further, the federal appeals court
noted the Camping Ordinance was
" frequently enforced against homeless individuals with some elementary bedding, whether or not any of
the other listed indicia of 'camping'
were present " ; i.e., " the erection of
temporary structures, the activity of
cooking or making fire, or the storage of personal property. "
For example, a Boise police officer testified that he cited plaintiff
Pamela Hawkes under the Camping Ordinance for sleeping outside " wrapped in a blanket with
her sandals off and next to her, "
for sleeping in a public restroom
" with blankets, " and for sleeping
in a park " on a blanket, wrapped
in blankets on the ground. "
Based on this evidence, the federal appeals court found the Camping
Ordinance " can be, and allegedly
is, enforced against homeless individuals who take even the most
rudimentary precautions to protect
themselves from the elements. "
Accordingly, as applied to the
facts of this case, the federal appeals
court held: " a municipality cannot
criminalize such behavior consistently with the Eighth Amendment
when no sleeping space is practically available in any shelter. " In making this determination, however,
the federal appeals court noted the
following limitations on its holding:
Naturally, our holding does not
cover individuals who do have access to adequate temporary shelter,
whether because they have the
means to pay for it or because it is
realistically available to them for
free, but who choose not to use it.
Nor do we suggest that a jurisdiction with insufficient shelter can
never criminalize the act of sleeping outside. Even where shelter is
unavailable, an ordinance pro-

hibiting sitting, lying, or sleeping
outside at particular times or in
particular locations might well be
constitutionally permissible.
So, too, might an ordinance
barring the obstruction of public
rights of way or the erection of certain structures [might be constitutional]. Whether some other ordinance is consistent with the Eighth
Amendment will depend, as here,
on whether it punishes a person for
lacking the means to live out the
" universal and unavoidable consequences of being human " in the
way the ordinance prescribes.
The appeals court, therefore, reversed the judgment of the federal district court granting summary judgment
to the City and remanded the case for
further proceedings. On remand, the
district court would consider whether
the City's amended ordinances would
effectively preclude any future " criminal sanctions against homeless individuals for sleeping outdoors, on public
property, when no alternative shelter is
available to them. "

See Also:
" Camp 'Cleanup' Makes Homeless
Status Criminal "  
James C. Kozlowski. Parks &
Recreation. Mar. 2011 Vol. 46, Iss. 3
http://cehdclass.gmu.edu/
jkozlows/lawarts/03MAR11.pdf
" Cardboard Homeless Shelter in
Park "
James C. Kozlowski. Parks &
Recreation. Oct. 2006. Vol. 41, Iss.
10.
http://cehdclass.gmu.edu/
jkozlows/lawarts/10OCT06.pdf
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate
Professor in the School of Recreation, Health and Tourism at
George Mason University (jkozlows@gmu.edu). Webpage with
link to law review articles archive (1982 to present): http://
mason.gmu.edu/~jkozlows.

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