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Transient Camps

In this file photo from 2012, Flagstaff Police Officer Nick Jacobellis asks a homeless man to leave his camp on McMillan Mesa.

Flagstaff may no longer be able to enforce the city’s anti-camping ordinance when shelters are full as it amounts to “cruel and unusual punishment,” according to a recent Ninth Circuit Court of Appeals ruling.

The ruling comes out of a case in Boise, Idaho in which the court sided with six homeless residents of Boise who had sued the city in 2009 for citations they received after violating an ordinance similar to Flagstaff’s.

Before this ruling, those cited for violating the anti-camping ordinance in Flagstaff could defend against a citation if shelters were full, but the ruling may mean the citation in such a case would itself be unconstitutional.

The six residents argued that, as many nights they were not able to find other forms of shelter, the ordinance essentially made them choose between sleep and following the law.

“We conclude that a municipality cannot criminalize such behavior consistently with the Eighth Amendment when no sleeping space is practically available in any shelter,” Judge Marsha Berzon wrote in the majority opinion. “As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

The Ninth Circuit Court of Appeals covers much of the western United States and thus the ruling will affect the western sea board, Montana, Idaho and Arizona.

The court’s ruling follows that of a similar Ninth Circuit decision in 2007 in Los Angeles. The ruling stated that anti-camping ordinances were unconstitutional as long as there were more homeless residents than available beds, but the case was later resolved outside court and the ruling did not go into effect.

Flagstaff has recently struggled with its own anti-camping ordinance; in May of this year, the Flagstaff City Council decided against changing or repealing the city’s ordinance.

Flagstaff’s ordinance was adopted in 2005 but last amended in 2009, and makes it a Class 3 misdemeanor, the lowest level, for people to camp within city limits on public property. This includes public parks, on city streets and sidewalks, or any undeveloped land within city limits.

It is not known how much the ruling could affect the city. There are about 160 beds available in shelters around Flagstaff year-round, with more generally becoming available in winter when demand is higher, said Ross Altenbaugh, director for Flagstaff Shelter Services.

More are reserved for families and victims of domestic violence.

Carlos Nixon, a coordinator at Sunshine Rescue Mission, said they are rarely so full that they are forced to turn someone away -- Nixon guessed  only about 2-3 times a year.

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The Flagstaff Police Department is already required to give only a warning for a first offense and provide those sleeping on public property with a list of available resources.

Rick Brust, who works with Catholic Charities' PATH program, which does outreach to those sleeping at night outside a shelter, said they don't expect the ruling to change the situation in Flagstaff significantly. Brust added that should the ruling allow homeless residents to sleep within the city with less fear of persecution, they are prepared to work with businesses in town the same way PATH works with businesses in more rural areas.

The court also suggested that even if beds are available, a city cannot cite people for sleeping on public property if the available beds are in shelters that require participation in religious practices.

“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,” Berzon wrote.

Although one of Flagstaff's shelters, the Sunshine Mission, is religiously affiliated and offers services, they do not require those who stay there to participate in such practices.

The ruling does not appear to affect laws regarding those sleeping in vehicles.

The Flagstaff Police Department and the City of Flagstaff were not able to comment prior to publication.

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Adrian Skabelund can be reached at the office at, by phone at (928) 556-2261 or on twitter @AdrianSkabelund.


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