By Frank Chmelik of Chmelik Sitkin & Davis P.S. – WPPA Counsel (October 2018)
A new case from the United States Ninth Circuit Court of Appeals may impact how the ports address the problem of homeless people and port property. To be clear, homelessness is a national, state and local problem that deserves compassion and attention. With that understood, several ports have inquired about the impact of United States Ninth Circuit Court of Appeals case, Martin v. City of Boise, No. 15-35845, decided on September 4, 2018 (the Ninth Circuit is the federal appellate court that includes Washington State). I suspect that some ports have heard about this case from the local city governments where the impact is being carefully evaluated. Now some ports are considering the effect on port parks, marinas, airport terminals and other places of public accommodation.
Martin v. City of Boise involved a lawsuit brought by several homeless individuals challenging their criminal convictions based upon the constitutionality of two City of Boise criminal ordinances. The ordinances in question were broadly worded to criminalize both the use of “any of the streets, sidewalks, parks, or public places as a camping place at any time” (defining “camping” broadly) and banning “sleeping” in any public place. The court ultimately found the Boise ordinances to be in violation of the Eighth Amendment of the United States Constitution holding that “so long as there is a greater number of homeless individuals in [a jurisdiction] than the number of available beds [in shelters],” the jurisdiction cannot prosecute homeless individuals for “involuntarily sitting, lying, and sleeping in public.” The Court clarified that as long as there is no option of sleeping indoors, the government cannot criminalize indigent homeless people for sleeping outdoors on public property based upon the false premise they had a choice in the matter.
This seems like a growing issue for ports, and based upon the Martin case, ports ought to consider their positions with regard to homeless people camping or sleeping in their parks, marinas, airport terminals and other places of public accommodation. I know ports have worked with other local governments to help be part of solutions, but these ports are also concerned about the real impact on their facilities and their customers. Typically, if someone were violating port rules on port property, the police would be called, and the person would be asked to leave or be charged with criminal trespassing. Now, local policing jurisdictions may be reluctant to issue citations in the face of the Martin case. Here are some actions that I think ports may want to take.
- The port commission ought to be clear as to which port property and facilities are open to the public. Like any landowner, public or private, the port has the right to preclude public access to its property. Property not open to the public should be posted with appropriate signage and fences, where possible.
- The Port Commission ought to establish clear rules for port property open to the public. These rules must apply to all the public. These rules can relate to “time, place and manner” of use, must be applied to all of the public, and must be reasonably related to an interest of the Port. Stated another way, these rules cannot be designed to exclude homeless people. These rules should be posted and uniformly applied. For example, if the Port prohibits overnight use of its park, it should be cautious about granting exceptions for certain events.
- The Port commission ought to make clear in its delegation of powers resolution (RCW 53.08.245) that the “executive director and or his designees” has the authority to ask people to leave port property and declare them trespassers for port property not generally open to the public.
- Port staff ought to have discussions with the local law enforcement leaders (sheriff and police chiefs) and their lawyers now about their stance on issuing trespass citations. Better to discuss these issues now rather than when the police officer or sheriff deputy has to be called to the marina park.
Your port may not now have problems with unwelcome impacts from our homeless population, but some thought and planning now will help prevent future problems.