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Knudsen petitions Supreme Court to reverse rulings in homelessness cases

by KATE HESTON
Daily Inter Lake | September 27, 2023 12:00 AM

Montana Attorney General Austin Knudsen joined several of his colleagues on Monday in asking the U.S. Supreme Court to reverse a lower court’s decisions that place restrictions on local governments’ efforts to crack down on homeless encampments.

The petition for a writ of certiorari in the case of Johnson v. City of Grants Pass was led by Montana and Idaho and includes 18 other states. It asks the Supreme Court to reverse the 9th Circuit Court of Appeals’ decision in that case as well as the 2018 ruling in Martin v. City of Boise.

That latter decision found that the Eighth Amendment, which addresses cruel and unusual punishments, prohibited governments from penalizing homeless people for camping on public property.

The panel ruled that “... 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 appeals court took a similar stance in Johnson v. City of Grants Pass, which involved the ticketing of homeless people in a municipality in southern Oregon, and upheld a lower court decision finding the local government’s efforts unconstitutional. The city has since petitioned the Supreme Court to take up the case.

Knudsen and his colleagues disagreed with the appeals court’s interpretation in the cases as well, describing it as “erroneous” in a statement.

“The 9th Circuit relied on this court’s ‘evolving standards of decency’ jurisprudence, and this case is the unfortunate fruit of that standardless approach,” the attorneys general wrote in a joint statement.

The evolving standards of decency concept is a non-static interpretation of the Eighth Amendment in which courts can change how to punish people now compared to the past. It was first introduced in Weems v. United States in 1910 and was officially named in Trop v. Dulles in 1958, wherein the Supreme Court ruled that it was unconstitutional to revoke citizenship as a punishment for a crime.

The attorneys general posit that the 9th Circuit is wrong on at least two levels. They argue that the Constitution nowhere strips the states of the right to regulate use of public spaces and that the “evolving standards of decency” concept lacks textual, historical and structural support.

Cities in Montana and across the western United States are struggling with homelessness because the hands of local government are tied due to the 9th Circuit’s interpretation, Knudsen said in a statement, echoing the language of the petition.

“Families can no longer walk the streets of Portland, San Francisco, and Seattle in safety,” the attorneys general wrote in the petition. “The pungent smell of urine and human feces fills the air. Hypodermic needles used for narcotics cover the ground. And rats carrying diseases that were once thought eradicated scurry from encampments to nearby businesses and homes. These cities used to be beacons of the West, but their sidewalks are now too dangerous to visit.”

In a separate statement, Knudsen listed Kalispell as well as Billings, Bozeman and Missoula as Montana municipalities struggling with the challenge of homelessness.

Concern over the presence of homeless people in public spaces prompted Kalispell officials to close the gazebo at Depot Park last winter. City Council subsequently enacted a series of ordinances limiting the amount of time a person could spend in a park, banning the erection of structures on public property and restricting the amount of personal belongings an individual could bring into a public space.

Another ordinance aimed at tamping down on roadside panhandling was approved in the spring.

The suite of new local laws, though prompted by resident complaints, followed the release of a letter by the Flathead County commissioners criticizing area service organizations for worsening homelessness by attracting more unhoused people to the region. The missive also called upon residents to deny homeless people support.

“I totally support the direction the attorney general is going with this,” said Flathead County Commissioner Randy Brodehl. “I think [the appeals court's decision] hamstrung the ability of local governments to protect themselves.”

Kalispell City Manager Doug Russell declined to comment on Knudsen’s effort and Mayor Mark Johnson did not respond to media inquiries by press time. Johnson and several city councilors did express support for the idea of creating an advisory council to focus on the community’s homeless population following the alleged murder of a homeless man in June.

Tonya Horn, executive director of the Flathead Warming Center, said the 9th Circuit ruling prevents municipal authorities from dispersing homeless encampments if shelter beds are unavailable.

“Shelter is the first step to breaking the cycle of homelessness,” Horn said. “Simply moving people along to the next ‘door step’ is not a community solution. I hold hope that we can find community solutions that are right for the Flathead, but we must work together.”

The appeals court’s ruling would have little effect if the city created enough beds for its homeless population, Horn said.

“Regardless of the ruling, one way or the other, what our community needs to do is find more shelter beds,” she said.

Reporter Kate Heston can be reached at kheston@dailyinterlake.com or 758-4459.