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Attorney of homeless encampment argues Idaho's lawsuit is unconstitutional

Martin v. City of Boise (2019) established criminalizing camping violates the 8th amendment if there is no availability at local shelters.

BOISE, Idaho — Protesters have occupied the old Ada County Courthouse lawn for more than two months bringing awareness to the lack of affordable housing and low barrier shelter beds.

Their message received a response from the statehouse on March 14 with a lawsuit from Governor's office. The lawsuit is seeking a court order to remove the protesters and their belongings from state property according to the 20-page injunction provided to KTVB by the Attorney Generals office.

"Is that what they want?" said the Idaho Legal Aid attorney who is representing the protestors, Howard Belodoff. "They just want to remove all those sleeping bags? Or they just don't want to see them? They don't want them to be visible?"

The injunction cited a 2013 court presedent from Watters v. Otter that gives the state "the right to ban camping, cooking, making fires, and storing personal belongings related to camping.” The symbolic protest is protected as a form of free speech, but the act of camping is not.

Idaho bans camping on unauthorized state property through State Code 67-1613. The law partially defines camping as "storing personal belongings," which, according to Belodoff, unfairly singles out homeless people.

"So when you say, camping is a blanket, well, where is a homeless person gonna put that? They have to keep it with them, they have to put it on to stay warm, or a tent, or a sleeping bag," Belodoff said.

Idaho State Troopers have continuously confiscated prohibited items from the protest and items state law defines as camping gear.

"The troopers have been respectful; they've been courteous and respectful, but they have to follow orders. I don't blame them. I blame the people who order them," Belodoff said. "The government cannot punish homeless people for the status of being homeless."

Belodoff served as the lead attorney in the Martin v. City of Boise case in 2019. The case struck down a similar camping ban on the city level due to a violation of the 8th amendment.

If homeless shelters are full, people experiencing homelessness often have no other option but to camp. Martin v. City of Boise found criminalizing camping under these narrow circumstances is cruel and unusual punishment.

For the same reasons, the state law could be unconstitutional as well, according to Belodoff.

The injunction cites open beds are available at Boise Rescue Mission; this is in alignment with previous KTVB reports. However, Boise's low-barrier shelter - Interfaith Sanctuary - is often operating overcapacity.

On the coldest nights, Interfaith had to turn away guests that may not receive shelter elsewhere - like the Boise Rescue Mission.

"We give them the list of names we don’t have space for. And they very kindly say these guests can stay with us and these guests cannot," said Interfaith Executive Director Jodi Peterson-Stigers. "That has always been our relationship and we have never questioned the decision-making of their shelter. We respect how they make that decision. But in fact, on any given night we that we can't find space, there is not necessarily a bed for that person at the rescue mission. And that's okay, we just need to be honest about that."

The Boise Rescue Mission has more rules than Interfaith, but will not turn away people seeking emergency shelter, according to Reverend Bill Roscoe. People experiencing homelessness at the protest argue against Rev. Roscoe. Many say they are not welcome at Boise Rescue Mission shelters because of service animals and other barriers.

These are barriers Peterson-Stigers admits can bar them from entering even a low-barrier shelter like Interfaith.

"There are not enough beds in this community to serve everyone who is homeless and in need of safe shelter," Peterson-Stigers said.

And for those who are left on the street with nowhere else to turn, Belodoff questions the validity of a state code banning camping.

The Idaho Attorney General's office told KTVB in an email they will not be commenting on the pending litigation.

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