An unfriendly amicus
City attorney Ann Davison filed an amicus brief with the Supreme Court on Sept. 25, weighing in on the appeal of Johnson v. City of Grants Pass, a 9th Circuit Court of Appeals decision regarding a city’s ability to sweep homeless residents when there is no available shelter.
The Johnson case built upon established precedent set by that same court in Martin v. Boise, a landmark ruling that said cities could not criminalize homeless people for camping or sleeping on public property when no overnight shelter was available. Johnson v. City of Grants Pass designated a class of “involuntary homeless” people and ruled that Grants Pass’ anti-camping and anti-sleeping ordinances were in violation of the Eighth Amendment.
In her amicus brief, Davison made it very clear that she does not agree. Cities should be able to sweep without restriction, she said in a press release, arguing that “the 9th Circuit’s decision in this case strips local authority from a complex problem.”
In the brief, sent jointly with the National League of Cities, the National Association of Counties and several other municipalities, the group argues that homelessness is not intrinsic enough to be a class, while also quibbling quite a bit about the nature of “involuntary” homelessness. Anyone who has ever refused an offer of shelter, the group argued, should be classified as voluntarily homeless, and a city should not have to offer those people shelter.
What’s more, they also argued “shelter availability calculus is unworkable and has the practical effect of imposing a judge-made financial obligation on local governments to provide public shelter options.”
Some would say we should have a societal obligation to provide shelter for the neediest among us, but Davison is not some. The brief goes on to argue that requiring a city to provide shelter for every homeless person is an unreasonable financial burden, neatly eliding the fact that another (completely free) option exists: Stop sweeping them.
Here in Seattle, Mayor Bruce Harrell has said that “we don’t sweep,” and that every person who is the subject of an encampment removal is offered shelter, in keeping with Martin v. Boise. However, as I’ve witnessed on the streets and reported in these pages, the city absolutely does sweep homeless residents without making them offers of shelter.
While Harrell refuses to acknowledge that reality, Davison here is explicitly advocating for it.
A new report from the King County Auditor’s Office arrived on Sept. 26, outlining a big problem with the county’s collection of right-of-way fees from utilities that use county roads in unincorporated King County. That revenue, called “franchise compensation,” is way under what was projected.
“King County collected $5 million in franchise revenue in 2021 and 2022 combined, 46 percent lower than the projected $9.2 million the County budgeted. For 2023 and 2024, we estimate that franchise revenues will reach $7.6 million, 37 percent below projected revenues of $12 million,” the report read.
Currently, less than 10% of utilities that should be paying these fees are paying them, with a backlog of 104 franchise agreements to be processed across 89 distinct utilities. The report blamed a staffing shortage for the bottleneck. Perhaps most alarmingly, it also noted that there is no mechanism for the county to control how much cost utilities pass along to customers. Utilities are supposed to keep the amount “reasonable,” but what that means is left up to them.
Apparently we did not learn our lesson from the Cap and Invest program! Either way, the pass-through costs are causing inequity, the auditor found. A county press release announcing the report explained:
“For example, while the county used the same reasonableness test for both places, the City of Redmond (including Novelty Hill), operating principally in the wealthier District 3, did not pass on the cost of franchise compensation to its customers. In contrast, Seattle City Light increased rates by $7 per household per month in Skyway and White Center, the unincorporated areas it serves in the more racially and linguistically diverse Districts 2 and 8.”
Who’s harming whom?
On Sept. 28, Mayor Bruce Harrell issued his long-awaited executive order (EO) on how police should handle the new Seattle ordinance criminalizing drug possession and public use. Unlike the council, whose drug bill included a lot of strong suggestions for the police, the mayor can actually tell cops what to do. The ordinance was passed in part thanks to a promise of further clarity coming from on high, and now it has come.
Harrell’s instructions are — shocker! — to use discretion.
“Nothing in this EO is intended to prevent or dissuade officers from engaging in social contacts with individuals who are engaged in public use or possession of controlled substances, or to otherwise exercise their discretion,” his order reads. He also assures officers that their “good faith exercise of their judgment in making determinations to arrest due to threat of harm, and in choosing among various lawful options in seeking to assist individuals, shall not be a basis for officer discipline, but may be a basis for coaching and guidance by supervisors.”
At the end of the day, this order in no way restricts the circumstances under which cops can arrest someone for using or possessing drugs in public. It does, however, contain some definitions around harm that are slightly more specific than the council’s. And, as The Stranger’s Ashley Nerbovig pointed out on Twitter, a lot of those have to do with harm to housed people and business interests.
In determining whether public drug use and possession represents a threat of harm to others, the order directs officers to factor in “the location of public use and whether there are other people, commercial entities and businesses, or other organizational activities occurring in close proximity[.]”
There is a bit of lip service about the danger posed by fentanyl to the users of fentanyl, but a short section toward the end makes it pretty clear what value the city places on their lives.
“When focused drug enforcement activity occurs in a specific neighborhood,” it reads, “SPD will provide notice to Public Health — Seattle & King County and the Seattle Fire Department to monitor potential overdose increases.”
It’s hard to read that as anything other than an implicit acknowledgment that criminalization kills. They know but apparently don’t care.
Burien bans camping
As our friend (and 2023 Real Change Editorial Excellence award winner) Erica Barnett first reported at PubliCola, the city council of Burien “voted Monday night to ban unsheltered people from sleeping in public spaces between 10 p.m. and 6 a.m., after failing for more than six months to create any shelter or other legal place for a group of several dozen people to sleep.”
Councilmembers Stephanie Mora, Kevin Schilling, Jimmy Matta and Sofia Aragon voted in favor of the ban. Aragon is running for King County Council District 8 against Seattle City Councilmember Teresa Mosqueda. In her candidate interview with Real Change, published Sept. 13, Aragon said, “What I want to do is focus on the proven, common-sense solutions on homelessness and other really important issues like public safety and public health.”
While common sense might imply that something is a simple, settled matter, the ban puts Burien in a complicated position. For starters, there is no available overnight shelter within Burien city limits. Thus, the ban appears to directly contradict Martin v. Boise, the 9th Circuit case in which the court ruled that governments may not criminalize people for camping or sleeping in public when there is no available shelter.
There’s also the fact that Burien contracts for police services through King County, so the people enforcing the ban don’t answer only to the city council. King County Executive Dow Constantine told Barnett that the county would run the ban by its legal team, who I bet will presumably tell him what those four Burien council members should already know: It’s unconstitutional.
Read more of the Oct. 4-10, 2023 issue.