Olympia on hold from dismantling camp underneath Fourth Avenue bridge

By Tadeu Velloso

A local church has offered to be of service to campers under the Fourth Avenue Bridge in Olympia, Washington, where they will help create rules and start holding meetings with the people staying under the bridge. This has delayed the City’s plan to give eviction notices to the campers that was set to roll out on September 11th. Instead the City is on hold and is in the process of finding places for those staying under the bridge to go.

Local governments have been confused about what recourse is available to them in addressing their issues with homelessness due to the Ninth Circuit’s recent holding in Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018).  But the U.S. District Court in the Northern District of California has directly addressed the question of whether a City has the authority to close an encampment located on public property.

In Miralle et al. v. City of Oakland, Plaintiffs established an encampment on a city-owned parcel in Oakland, California.  When notified of the encampment, city officials informed Plaintiffs that they were trespassing.  On November 8, 2018, Oakland posted a “Notice to Vacate Illegal Encampment.”  The following day, Plaintiffs filed a motion for temporary restraining order, motion for preliminary injunction blocking their removal, and a complaint. 

At issue was whether the Ninth Circuit’s recent holding in Martin hindered Oakland’s attempt to close the encampment.  But as the Court held, the Martin decision is narrow: “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.” Martin, 902 F.3d at 1048. So, as long as there are no indoor sleeping options, “the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.” Martin, 902 F.3d at 1048.

To be clear, Martin does not establish a constitutional right to occupy public property indefinitely at Plaintiffs’ option.  Notably, the Martin court also explained that its “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.”  Martin, 902 F.3d at 1048 and n.8.  In Miralle, Oakland claimed that the encampment closure would be consistent with its Standard Operating Procedure which includes, among other things, an offer of shelter beds and resources to individuals at the encampment prior to and during the closure.  At a November 26, 2018 hearing, Oakland committed to providing the encampment residents with temporary housing.  Plaintiffs’ theory would therefore require the Court to extend the right described in Martin well beyond the parameters set by the Ninth Circuit.

Ultimately, as the Miralle Court aptly notes, the legal question does not focus on whether Oakland has adequate policies for handling its homelessness problems.  Rather, the Court is tasked with analyzing whether “the Constitution forbids the City from making difficult decisions it judges to be in the best interests of all its residents by implementing a policy it believes appropriately balances the important individual and community rights implicated by encampments on public land[.]”

Stacey Tuesta