ACLU sues Washington state city over anti-homeless laws as it seeks workaround to SCOTUS ruling

The American Civil Liberties Union sued the city of Spokane, Washington, on Thursday, alleging that its anti-camping laws violate the state constitution. It is believed to be the country's first such legal challenge since the U.S. Supreme Court ruled in June that cities can enforce outdoor sleeping bans.

The court’s landmark decision — which found in June that such bans do not violate the U.S. Constitution's Eighth Amendment prohibition of cruel and unusual punishment, even when shelter space is lacking — has prompted homeless advocates to seek new ways to challenge laws prohibiting outdoor sleeping.

The complaint filed in Spokane County Superior Court challenges city ordinances that make camping, sitting or lying on public property misdemeanor crimes in certain circumstances. Under state law, a misdemeanor is punishable by a fine up to $1,000 or jail for up to 90 days.

“This Spokane case serves as another opportunity for us to build out those protections under our state constitution, which is more protective than its federal counterpart,” Jazmyn Clark, director of the ACLU of Washington’s Smart Justice Policy Program, told The Associated Press.

It was unclear whether Spokane has begun enforcing its multiple anti-camping ordinances following the high court ruling.

Erin Hut, a spokesperson for the Spokane city attorney’s office, said in an email that the city had not yet been served the lawsuit and was unable to comment. A police spokesperson did not respond to an email seeking comment.

Clark said two of the plaintiffs are a homeless person and someone formerly homeless who were cited by police under Spokane's ordinances. A homeless services nonprofit in Spokane is also among the plaintiffs.

Clark noted the Eight Amendment bars cruel and unusual punishment, but that the Washington state constitution only prohibits cruel punishment and thus provides more protection. This means that if punishing sleeping outside with fines and jail time is found to be cruel, that alone is a violation of the state constitution, Clark said.

“You do not need to show that such punishment is also unusual,” she said.

Washington isn't the only state whose constitution prohibits cruel punishment without mentioning unusual punishment. Pennsylvania, Delaware, Rhode Island, Kentucky and South Dakota have similar language in their constitutions.

While Clark believes her group’s lawsuit against Spokane is the first such challenge filed since the Supreme Court ruling, she added Spokane was targeted because of multiple ordinances against camping and sitting outside that create “near-total islands of exclusion throughout the city.”

Before the Supreme Court ruling, ACLU affiliates in other states, including Hawaii, had filed suits similarly claiming that local measures against homeless camping violated their state constitutions.

Hawaii’s constitution prohibits “cruel or unusual” punishment, in a minor difference of wording compared to the federal constitution’s prohibition of “cruel and unusual” punishment.

“In the context of Hawaii and our state constitution, it doesn’t have to be both. It could be one or the other,” said ACLU of Hawaii Executive Director Salmah Rizvi.

Rizvi said her group doesn’t have immediate plans to file another lawsuit raising state constitutional claims but may do so in the future. Last month, the ACLU of Hawaii and Honolulu agreed to dismiss a 2023 lawsuit the group had filed against the city’s homeless sweeps policy.

Elsewhere, a lawsuit filed in 2022 by the ACLU of Colorado alleging that the city of Boulder's camping policy violates the state constitution is still pending, a city spokesperson said.

Spokane, in eastern Washington, is the state’s second most populous city with roughly 230,000 residents.

One of its ordinances prohibits camping at all times, regardless of shelter availability, within 50 feet of a railroad viaduct located downtown or within three blocks of a homeless shelter. Another bars sitting or lying on the sidewalk in the downtown area between 6 a.m. and midnight. And voters in November approved a ban on camping within 1,000 feet (300 meters) of a school, day care or park.

So far this year, the city has prosecuted at least 114 cases of unlawful camping and sitting and lying violations, according to the complaint. In 2023, it prosecuted at least 107 unlawful camping cases. Hundreds of people have been cited since 2014, when the city's first so-called “sit and lie” ordinance took effect, the complaint says.

Before the U.S. Supreme Court's June ruling, cities in the West had been allowed to regulate encampments under a lower court ruling but couldn’t completely bar people from sleeping outdoors. Western cities had argued that the lower court ruling made it harder to manage encampments in public spaces, while homeless advocates said punishing people who need a place to sleep effectively criminalizes homelessness.

Elsewhere, other cities and states have adopted more aggressive approaches to tent clearing since the Supreme Court decision.

In California, home to nearly a third of the nation's 650,000 homeless people, Gov. Gavin Newsom last week ordered state agencies to begin removing tents on state land. And San Francisco's mayor recently announced new policies giving police and other city workers more leeway in dismantling encampments.

In 2023, Washington had the fourth largest homeless population among the states with more than 28,000 homeless residents, according to federally mandated counts. From 2022 to 2023, the number of homeless people living in Spokane city and county jumped 36%, from over 1,700 people to nearly 2,400, point-in-time counts show.

Homelessness in the U.S. grew a dramatic 12% last year to its highest reported level, as soaring rents and a decline in coronavirus pandemic assistance helped put housing out of reach for more people.