Appellants' attorney says Burien ordinance criminalizes homelessness

Scott Crane, an attorney with the Northwest Justice Project, told the court that Burien's municipal ordinance effectively criminalizes homelessness by making it a crime for an evicted tenant to sleep on the sidewalk in front of their former home.

Crane said the complaint centers on appellant Carlo Paz and that, as applied to him, the ordinance imposes a criminal penalty when he has nowhere else to live. "When Carlo Paz lost his home 3 years ago and went to live on the streets of Burien, he wasn't committing a crime," he told the bench, arguing that "our constitution doesn't permit such a drastic result." Crane asked the court to consider three points: that Article I, Section 12 of the Washington Constitution protects free movement within the state; that Burien's ordinance deters and penalizes persons for living in Burien when they have no private place to stay; and that the ordinance is not narrowly tailored to serve a compelling interest.

The attorney argued the city's evidentiary record is thin. He told the court the city cited only two pages: a law-enforcement declaration noting some people refuse housing and a petition expressing local opposition to certain services. "That is not a significant enough record upon which to draw a conclusion that this drastic of an ordinance is necessary," Crane said, saying such limited proof cannot justify a law that prohibits people from both sleeping and residing within the city limits when they have nowhere else to go.

The bench probed whether the trial court correctly found that one plaintiff had standing to bring the challenge and whether that as-applied challenge would be dispositive. Crane said an as-applied ruling for Mr. Paz could resolve the dispute between the parties and urged the court to apply state precedent under Article I, Section 12 rather than treat Potter as foreclosing relief.

The presenter for the opposing side responded that homelessness is a complex crisis and that state and local governments have employed local experimentation and service partnerships in response. The presenter argued that the right to travel, as understood in the cited federal and state cases, protects ingress and egress rather than a right to live on public land. "You just can't reside here in any manner that you want to," the presenter said, arguing municipalities retain the power to regulate the manner and use of public spaces and that Burien's ordinance is tailored to that regulatory interest.

Both sides discussed controlling authorities: Crane cited Article I, Section 12 and state cases he said support intrastate movement protections; the opposing presenter invoked Potter and other authorities to stress the difference between movement and a claimed right to reside on public property. The bench repeatedly returned to standing and to whether the court needs to decide broader questions if Mr. Paz's as-applied claims resolve the case.

The court concluded the docket after argument; no opinion or ruling was announced from the bench.