It is unconstitutional for cities to remove homeless people from public property if no other shelter beds are available within the city they are living in, according to a recent court ruling from the United States Court of Appeals for the Ninth Circuit from Boise, Idaho.

The case was brought about when six homeless people sued the city of Boise after receiving citations for sleeping on public property after being turned away from shelters.

Now jurisdictions across the Ninth Circuit — including cities in Washington state — are reviewing how they address the homeless issue when it comes to camping on public property.

Federal Way officials say the ruling will not impact the city’s laws and procedures.

“The recent filing from the Ninth Circuit Court does not alter the previous ruling that was issued in [September] 2018 in the same case,” according to a statement from communications coordinator Tyler Hemstreet on behalf of the city. “We reviewed our laws and procedures after that ruling came down, and concluded that none of them conflicted with the case’s holding. Unlike the City of Boise, the City of Federal Way does not criminalize outdoor camping. We do periodically clean up homeless camps to address the health and safety hazards posed by flammable materials, human waste, drug needles and trash, but at no time does the City arrest the homeless for simply sleeping out of doors as was apparently the practice in Boise, Idaho.”

However, the city does prohibit outdoor camping.

According to “Notice to Vacate” signs that the city has posted in public homeless encampments: “Camping is prohibited in City of Federal Way Parks (FW ORD 91-82). Befouling and Obstructing Public Parks is prohibited as a Public Nuisance (RCW 9.66.020)…”

And the city has banned the homeless from camping on public property. In November 2018, for example, eight homeless people were banned.

On Nov. 17, police contacted three subjects near six large tents for illegally camping, remaining after hours and causing risk of damage to Laurelwood Park, according to police records. Police issued them park expulsion and trespass bans. On Nov. 21, police issued trespass bans to five subjects for illegally camping on public property near the Metro Park & Ride.

According to a Jan. 3 email Hemstreet, the city’s 2018 homeless report showed an increase of criminal calls from 2016 to 2017 by 105% involving people who are experiencing homelessness. The report notes that those crimes are committed primarily by homeless people living in encampments.

“A large number of these calls involve criminal trespass, which some regard as endemic to the homelessness crisis and the lack of available services,” according to the homeless report. It is unclear whether the trespasses occurred on public or private property.

The Mirror reached out to Federal Way city attorney Ryan Call and Mayor Jim Ferrell for clarification regarding the city’s procedures of issuing trespass notices to the homeless, as well as for further comment about this court ruling. However, both Call and Ferrell declined to comment. As a result, the Mirror has filed several public disclosure requests for more information.

The Boise ruling

The former ruling Hemstreet mentioned previously was the first part of the case, where the Ninth Circuit Court decided homeless people could not be trespassed if there were no available shelter beds in the city they are currently in.

This ruling could affect other cities in the Ninth Circuit across the western United States that have similar laws in place, including California, Arizona and Washington.

Hemstreet recently told the Mirror during a phone interview that it is not the city’s nor the police department’s job to keep track of shelter beds available to the homeless. Instead, he said it is up to the homeless themselves to go to the shelters and see if there is space available.

However, according to the recent Boise ruling, it would be up to the city to have a list of available shelter beds before sundown so cities know other places they can direct the homeless to.

Federal Way Police Chief Andy Hwang said representatives from the Salvation Army accompany Special Operations Unit officers when they enter homeless encampments to provide opportunities for shelter and other resources. It is unknown if police officials provide a list of available shelter beds on any given day to homeless encampment occupants.

According to several emails sent from Federal Way’s former senior policy advisor Yarden Weidenfeld that the Mirror obtained through a public disclosure request, Ferrell is committed to removing illegal encampments from the city.

However, the Mayor’s Office declined to tell the Mirror what the city’s definition of “illegal encampment” is as it pertains to Boise’s ruling.

According to a Feb. 15, 2018 email from Weidenfeld: “Mayor Ferrell has directed the City of Federal Way Police to take down illegal encampments on public property.”

The Mirror reached out to the Federal Way Police Department to confirm this information. However, Commander Kurt Schwan said all questions pertaining to homelessness in the city need to be directed to Hemstreet, who declined to comment further.

According to a later email sent Feb. 21, 2018 from Weidenfeld: “The City could also take encampments down ourselves (as has been done repeatedly over the past year), but that can cost tens of thousands of dollars…”

Schwan said trepsass notices given to homeless people are only done on private property.

Homeless encampment cleanup walk-through

However, during a homeless encampment tour the Mirror went on with city officials and Special Operations Unit officers with the FWPD in January to the public Hylebos Wetlands, police officials said they post a trespass notice on homeless encampments 72 hours before they return to clean the area.

A green “notice to vacate” sign posted at the Hylebos Wetlands encampment warned people that camping is prohibited.

Ferrell previously said so far the city has shut down and cleaned up over 30 homeless encampments, though the city doesn’t currently a policy in place that would address homeless people from re-inhabiting the encampments.

The Mirror requested public records showing how many encampments are still active in the city, but did not recieve the request in time for publication.

During the encampment walk-through, Hemstreet pointed out dozens of needles littering the ground and said drug use was one of the main reasons homeless people don’t seek shelter.

“Would they be able to shoot up in a shelter? Probably not,” he said.

How other cities are responding

Auburn provided information regarding how the Boise ruling affects the city, but said the city has always chosen to take a “tough love” approach to the issue.

Jeff Tate, director of community development services, recently told Mirror staff that while the city of Auburn is insistent that the cannot use public property for encampments, they also bring several resources to the table when communicating with the homeless.

“When we tell folks that they have to move along we offer assistance and resources that they can take advantage of,” Tate said in an email. “This doesn’t mean that they choose to take advantage of those resources, but we do have protocols in place that ensure we are offering to help.”

He said the city estimates about 80 homeless people live within city limits, and only one organization provides shelter beds at the moment. However, that one organization can provide about 40 beds per night, Tate said.

Tate said the reality of the demand for shelter beds fluctuates largely depending on the weather. There are some nights where the beds in Auburn aren’t fully occupied, and there are others where people need to be turned away because the shelter reaches capacity so quickly.

Tate said the city of Auburn does not believe they are violating the ruling coming from Boise for multiple reasons.

“We feel we aren’t violating Boise because our police officers, code enforcement officers, parks staff … have the ability to connect our homeless population with a variety of resources that help them get access to shelter,” Tate said. “The reality is that some homeless people accept the help but many don’t.”

Pierce County is also reviewing their own policies and ordinances after this ruling. According to the Tacoma News Tribune, Pierce County won’t be enforicng their own ordinance that makes it illegal to camp on public property.

A “Notice to Vacate” sign placed in the middle of a homeless encampment in Federal Way by FWPD officers before the encampment was cleaned. Olivia Sullivan/staff photo

Needles littered the ground throughout the encampment at the Hylebos Wetlands, which is public property. Olivia Sullivan/staff photo