Steven Malanga has this article in the City Journal:
Cities across America increasingly grapple with people living on their streets, and court rulings have made it hard to enforce laws against public camping. A series of decisions by the liberal Ninth Circuit Court of Appeals, for instance, determined that clearing homeless encampments is an unconstitutional form of punishment. Now Boise, Idaho, as part of a ten-year legal fight, is appealing to the Supreme Court to overturn a ruling by the Ninth Circuit that effectively bars the city from cleaning up camp sites on public property. How the case turns out may determine whether cities have powers to police their streets amid a sharp rise in public camping and sleeping.
CJLF was involved in public order issues back in the 90s. We filed an amicus brief in Tobe v. City of Santa Ana, 9 Cal.4th 1069 (1995) arguing that the anti-camping ordinance was valid but that necessity was a defense. The court adopted this position.
Boise has obtained an extension to August 29 to file its certiorari petition.
Does homelessness, per se, constitute "necessity"?
Can you explain how the ninth circuit decision is different from a necessity defense. "[A]s 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."
No, not per se.
I have not yet finished my own analysis of this opinion. For now, I will only note that Boise amended its ordinance to provide an exception "when the individual is on public property and there is no available overnight shelter."