One suit dropped, another started: Legal battle over homeless encampment/protest near Statehouse shifts

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A day after the State of Idaho dropped its lawsuit against an encampment of protesters advocating for Idaho’s homeless community, Idaho Legal Aid upped the ante by filing in federal court. 

On Monday, Attorney General Lawrence Wasden filed a voluntary dismissal in Idaho’s Fourth District court to retract its lawsuit aiming to remove a group of protesters who erected tents at the Capitol Annex on the lawn of the old Ada County Courthouse. This protest, which supporters say raised awareness for the plight of the unsheltered homeless community, occurred from mid-January until the end of March. By the time Governor Brad Little filed suit and a hazmat team hired by the state cleared the site, it had become a political flashpoint

[City of Boise eyeing expansion of housing for chronically homeless residents on Fairview Avenue]

The site has been quiet since March 28, when the Idaho Department of Administration closed the Capitol Annex lawn to start “annual irrigation start-up and repair” and all of the items were removed from the protest area. But, even though the demonstration is over, Idaho Legal Aid Attorney Howard Belodoff is fighting the state to get eight members of the homeless community and others the right to demonstrate at the Capitol Annex, prevent the seizure of camping supplies from their protest without adequate notice and to compensate them for the damages caused by the state’s violations of their constitutional rights. 

A hearing in the case has not been scheduled yet. 

Violation of Constitutional Rights? Or illegal camping?

Belodoff’s brief, filed with the U.S. District Court on Tuesday, argued the state harassed the demonstrators and violated their constitutional rights to freedom of speech, freedom of assembly to petition their government, subjected them to cruel and unusual punishment, and executed unreasonable seizure of their belongings. The brief also alleged the state excessively fined the demonstrators and subjected them to dangerous conditions by taking their belongings. 

“Plaintiffs are persons who are homeless, who, because the number of homeless persons in Idaho exceeds the number of shelter beds in Boise, have no alternative but to sleep and be outside on public property, and who have the fundamental constitutional rights under the First Amendment to peacefully and symbolically express their views, and to assemble to openly petition their government officials by demonstrating on the public property which is on and near the executive and legislative branches of the Idaho government,” the brief said. 

Governor Brad Little’s office put out a statement on the suit Tuesday, saying Idaho is “not San Francisco, Portland or Seattle.”

“I am proud of my administration’s deliberate 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 release said. “The approach was effective, and the encampments have been gone for weeks. Idaho will continue to fight against illegal public camping, and I appreciate Attorney General Lawrence Wasden, my administration, and law enforcement for their careful response and continued work to protect Idahoans.”

Following in the footsteps of Martin v. City of Boise 

This isn’t Belodoff’s first rodeo defending Boise’s chronically homeless community. 

In 2012, he was the attorney who led Idaho Legal Aid’s case representing several members of Boise’s homeless community who had been ticketed by the Boise Police Department for sleeping outside when there were no shelter beds available. Belodoff won the case at the Ninth Circuit Court of Appeals, which determined the City of Boise violated the Eighth Amendment’s prohibition on cruel and unusual punishment by ticketing people for sleeping outside when they had no other choice. Although the city under former Mayor Dave Bieter sought to take the case to the U.S. Supreme Court, the justices declined to hear the case, and it was eventually settled out of District Court in 2020

The case forced the City of Boise to end its policy on ticketing and only issue citations after officers have determined there is no shelter bed available for the person they found sleeping on the street. The classification of an available shelter bed also factors in whether or not the person has been barred from staying at any of the city’s emergency shelters or if they don’t feel comfortable going to Boise Rescue Mission due to their religious message, substance abuse-related regulations and policies regarding the LGBTQ community. 

In his brief, he outlined the situations of eight named plaintiffs:  Robert Fitzpatrick, Alicia Phillips, David Frazier, Jerry Mullenix, Timothy Christensen, Yolanda Pullman, Laurel McKenzie and Veronica Walker. He described their long-term history of homelessness in Ada County, struggles with mental illness, fears of living in a congregate shelter during the COVID-19 pandemic and, in some cases, why they cannot stay at the Boise Rescue Mission. 

One plaintiff, McKenzie, is transgender and says she is not welcome at BRM due to the organization’s religious beliefs and policies. 

Margaret Carmel - BoiseDev Sr. Reporter
Margaret Carmel - BoiseDev Sr. Reporter
Margaret Carmel is a BoiseDev reporter focused on the City of Boise, housing, homelessness and growth. Contact her at [email protected] or by phone at (757)705-8066.

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