December 23, 2019
A Latham pro bono team secured a major victory for our client the National Law Center on Homelessness and Poverty in longstanding litigation concerning the criminalization of homelessness in Boise, Idaho. On December 16, 2019, the US Supreme Court declined to review a Ninth Circuit Court of Appeals decision which held that Boise could not make it a crime for homeless people to sleep on the streets when no alternative shelter is available. The Supreme Court’s decision not to review leaves in place the Ninth Circuit’s precedent-setting ruling decriminalizing homelessness.
Over a decade ago, pursuant to city ordinances, Boise began issuing criminal citations to members of Boise’s homeless population for sleeping outside, even when its few homeless shelters could not accommodate them. In 2009, Latham and Idaho Legal Aid Services, in coordination with the National Law Center on Homelessness and Poverty, brought a lawsuit against the City of Boise on behalf of six members of Boise’s homeless community, alleging that Boise’s criminalization of public sleeping in a city lacking adequate shelter beds to accommodate its homeless population criminalized the status of homelessness itself in violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.
In 2015, the US District Court for the District of Idaho granted summary judgment to the city. Latham argued the appeal before the Ninth Circuit and on September 4, 2018, the Ninth Circuit reversed in major part, holding that “the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to.” On April 1,2019, over the vigorous dissent of several Ninth Circuit judges, a majority of the Ninth Circuit declined to rehear the matter en banc.
Earlier this fall, the City of Boise filed a petition for a writ of certiorari, asking the US Supreme Court to consider the case. They also initiated an extensive press and amicus strategy, appearing often on cable news and other media to criticize the Ninth Circuit’s decision, and securing twenty different amici briefs to support the petition. Latham filed a brief in opposition, arguing that the case did not meet the Court’s criteria for granting review and defending the decision’s merits. After considering the petition at two conferences, the Supreme Court denied the petition on December 16, 2019, without any noted dissent, letting the Ninth Circuit’s decision stand. The denial was widely reported across news media, including stories in The New York Times, The Washington Post, The Los Angeles Times, CNN, and Fox News.
The Ninth Circuit victory applies across several states in the Western US, many of which have similar ordinances barring people from sleeping outside. It also has national ramifications as cities throughout the United States struggle with inadequate housing and income inequality.
Over 70 Latham lawyers and professional staff contributed more than 7,000 hours over the last decade to the firm’s longstanding challenge to Boise’s criminal ordinances. Supreme Court & Appellate partner Michael Bern spearheaded the effort to oppose certiorari, after successfully arguing the appeal before the Ninth Circuit in July 2017. Associates Samir Deger-Sen and Noah Heinz played key roles in the effort to draft the brief in opposition before the Supreme Court. Numerous other members of the Boise pro bono team provided substantial assistance during and after the effort to overturn the district court’s adverse decision before the Ninth Circuit, including partner Allen Gardner, counsel Scott Jones and Sarah Gragert, and associates Ryan Baasch, George Chipev, and Kimberly Leefatt.