Governor Brad Little is ready for an encampment of protesters advocating for the homeless to move along.
On Monday, Little and Idaho Attorney General Lawrence Wasden filed a motion in Fourth District Court for a preliminary injunction to remove a group of protesters who have erected tents at the Capitol Annex on the lawn of the old Ada County Courthouse. This protest, which organizers say is raising awareness for the plight of the unsheltered homeless community, has been ongoing since mid-January and has increasingly become a political flashpoint.
Little said he and Wasden filed the suit due to concerns over the destruction of private property and health hazards for the surrounding community and those staying on the site. The news release invoked what Little called “failed experiments” in Portland, Seattle and San Francisco where public officials encouraged public camping disguised as a protest.
“What started here as a gathering of loosely affiliated individuals has escalated into dangerous health and safety violations,” Little said. “This lawsuit is the next step in our deliberate, careful strategy to address a highly complex situation involving state statutes, case law, and the First Amendment while ensuring the state meets its obligation to protect public health and safety.”
The complaint names Boise Mutual Aid Collective, BMA member Ty Werenka, nine individuals and multiple unnamed individuals referred to as Jane and John Doe as organizers of the protest. Boise Mutual Aid Collective is a group organized through social media which has raised funds and handed out camping supplies for those living outside since mid-2020.
Boise Mutual Aid member Samantha Williams prepared a statement to release to BoiseDev on Wednesday afternoon. The group says it is in contact with its legal defense and so have “the folks who have been protesting.”
“BMA has acted only in a supportive role of the community members exercising their First Amendment rights meant to bring awareness and change to the extreme difficulties they face living without access to housing, constant police force harassment, and lack of effective services,” the group’s statement said.
“We stand against any body of government that would oppress people by disallowing them access to resources and then repress their rights to protest that atrocious treatment. The state attacking folks for expressing their need for resources and their desire to be respected and given dignity and autonomy is unacceptable.”
Health and safety hazard or First Amendment rights?
The encampment means different things to different people, depending on who you ask.
Protesters say this action of setting up camp in full view of the Capitol is an important way to raise awareness for the difficulties of experiencing homelessness in the Treasure Valley as rents are on the rise. They say emergency shelter Interfaith Sanctuary is overcrowded and Boise Rescue Mission’s inclusion of religious programming and policies on LGBTQ guests means it’s not an option for many people living on the streets of Boise.
But, that’s not how others, including some republican politicians and activists, see it. Little, Wasden and conservative legislators say it’s a health hazard, a spectacle by protesters who largely aren’t living on the streets themselves and it is an affront to Idaho’s conservative values of self-sufficiency. The City of Boise has also repeatedly put out statements saying it has offered services to those staying at the encampment and Mayor Lauren McLean called it “staged” in an interview with KBSX.
At the end of January, these two viewpoints collided at a dueling protest between conservative group the Idaho Liberty Dogs and the encampment protesters and their allies. The Idaho Liberty Dogs arrived bearing megaphones, Gadsden flags, flack vests and guns ranging from handguns to assault-style weapons and spent nearly five hours across from the encampment. Encampment protestors responded with a potluck for their supporters, blared pop music, danced in the street and chanted “housing is a human right” back toward the Liberty Dogs. Profanity abounded on both sides, but there was no violence.
Rep. Chad Christensen, R-Iona, also had his own confrontation with an encampment member at the beginning of March. He visited the encampment and took video of the area when SherryJo Crandall crawled out of one of the tents, accused him of filming inside of tent and used her hand to toss the phone away, according to video posted on Christensen’s Facebook page. She was charged with alleged battery by the Idaho State Police for the incident.
Encampment subject to several police visits, CDH inspection
Idaho State Police officers have been regular visitors to the encampment since it sprouted up.
Little’s legal filing Monday included a declaration from Idaho State Police Major Russ Wheatley, who said he visited the encampment multiple times in the past few months to complete welfare checks, offer services and to oversee citing and arresting those in violation of the law. For example, ISP raided the encampment at the beginning of February, arrested four people and gave warning citations to eight others about rules against camping on state property at the Capitol Mall.
Each of the arrests was for failure to appear, a common charge for those in the homeless community, and probation violations. Wheatley referred to at least four visits he and his officers made to the encampment in recent months, dozens of civil citations against camping given out by officers at the Capitol Mall and arrests on outstanding warrants.
He did not note if those warrants were for failure to appear, or for violent crimes, but Wheatley wrote he was aware of a sixteen-year-old girl living at the encampment with an adult man and that she had been sexually groped by another occupant of the area. Wheatley named the man she was living with and that he had been cited for camping on the mall, but there were no details if he was ever charged for statutory rape or another offense.
The legal filing from Wheatley also said ISP opened an investigation into illegal drug use and trafficking by “certain individuals” living at the site, but it is unknown if charges were filed.
In his declaration, Wheatley said he “repeatedly and continuously” observed evidence of camping on the site, including mattresses with disheveled bedding, blankets, pillows and sleeping bags. He also observed propane tanks and heaters hidden under tents and tarps at the encampment, which he said “a serious fire hazard and explosion risk.”
Little’s news release said Central District Health inspected the site and found it to be a health and safety hazard, but details on their findings and date of inspection was not included with the lawsuit materials. Wheatley’s filing said he observed human feces on the ground in the area, stains likely caused by urination on nearby buildings, containers of urine in and around tents, as well as vomit, rotting food and “excessive trash.”
What are the legal issues here?
The First Amendment gives protesters broad protections to express their views in a variety of ways.
Questions over how residents who wish to erect an encampment can protest came to a head in a somewhat similar way in 2011 when Occupy Boise won a legal battle to keep its tent encampment on the site of the Ada County Courthouse. But, the key distinction is they could keep their encampment as a symbolic gesture of their free speech, but camping on the site was not allowed.
The precedence in this case is why ISP can only remove camping items from tents and around the encampment, but cannot take down the tents themselves. This is also potentially what Little alluded to in his statement about the encampment and how it intersects with “state statutes, case law and the First Amendment.”
Another well-known case around public encampment in Boise that may come up is the 2008 Martin v. Boise lawsuit. This suit, which went all the way to the Ninth Circuit Court of Appeals, found it was a violation of the 8th Amendment’s prohibition against cruel and unusual punishment for the Boise Police Department to issue tickets for sleeping outside on public property.
While BPD is not involved in enforcing rules on state property, the Martin case impacts any law enforcement agency in multiple western states, including California, Oregon, Seattle and Nevada. This means Idaho State Police have to abide by its findings as well, even though the ruling was against the City of Boise.
The Ninth Circuit’s ruling in the case hinged on Boise’s moves to write tickets regardless of if shelters were full or if the person getting the ticket was eligible to stay in any of the city’s shelters. When the Martin case settled last year, the agreement was for Boise to change its policy to only issue tickets when shelters aren’t full. The settlement also included a provision that someone could not be ticketed if they can’t access available shelter due to “disability, sexual orientation or religious practices.”
The City of Boise also paid out $1.3 million total to Interfaith Sanctuary and the Boise City Ada County Housing Authority to expand offerings of permanent supportive housing and add more shelter capacity by using hotel rooms.