Judge Upholds Burien's Total Ban on "Camping," With Appeal Likely

Superior Court judge Michael Ryan ruled that a ban on falling asleep in public criminalizes behavior, not the "status" of being homeless.

King County Courthouse

By Erica C. Barnett

King County Superior Court Judge Michael Ryan dismissed a lawsuit challenging the city of Burien's total ban on sleeping in public, in a sweeping ruling that brushed aside the argument that the law criminalizes people for being homeless.

The lawsuit, filed by the Seattle/King County Coalition on Homelessness and three people who lived unsheltered in Burien at various times over the past two years—Carlo Paz and Elizabeth Hale and Alex Hale—challenged Burien's law prohibiting people from falling asleep in public spaces.

The Burien City Council passed a law effectively banning homeless people from the city after the US Supreme Court overturned a ruling, Martin v. Boise, that made it illegal to criminalize homelessness if people had nowhere else to go. The Burien law bans unsheltered people from “camping” or “storing property,” such as tents or sleeping bags, in any public space, making it one of the region’s harshest anti-homeless laws.

In his ruling, Ryan wrote that Burien's ban is fair because it applies to everyone equally, prohibiting homeless and housed people alike from falling asleep or "storing" property in public spaces. During oral arguments in February, Ryan asked if he could be arrested if he fell asleep after having a picnic with his family on the beach, and Burien's attorney said he could, but the final call would be up to a police officer and, potentially, the judicial system.

Apparently drawing on this discussion, Ryan wrote that the law criminalizes sleeping in public, rather than the state of being homeless itself—disagreeing with the plaintiffs' argument that sleeping in public is an unavoidable activity that defines the status of homelessness. This, he wrote, was in keeping with the ruling that overturned Martin, known as Johnson v. Grants Pass, which said that sleeping in public is a type of conduct, like using illegal drugs, rather than a status, like having an addiction. To rule otherwise, he wrote, would be tantamount to saying that because people need to eat, cities can't enforce laws against lighting fires for cooking in public parks.

Scott Crain, an attorney with the Northwest Justice Project who argued the case, said he was "profoundly troubled that the court seems to interpret our state Constitution as unable to offer protections to people who are too poor to have a place to live.”

"Threatening people with arrest, fines, or jail time for sleeping in public or otherwise trying to survive is cruel, unjust, and unreasonable," Crain said. "Mr. Paz and Mr. and Mrs. Hale, along with many others, are trying to stay connected in their home community, which has no shelter for them."

This is an undisputed fact—there is no general-use shelter in Burien, and all "offers" of shelter involve relocating people living unsheltered in Burien to another city, like Seattle. But Ryan seemed convinced by the city's argument that its total ban on sleeping in public places would lead unsheltered people to accept offers of shelter they had previously "rejected."

"In its political judgment, Burien determined that banning camping, sleeping, and storing belongings on public property will incentivize individuals to accept various services, which Burien believes is an important first-step in getting someone into permanent housing," Ryan wrote.

After claiming repeatedly that, as a judge, he was ill-equipped to express policy views on homelessness, Ryan opined that Burien's law, "with its criminal penalties, serves to deter the proliferation of encampments, which everyone should agree are unsafe for the unhoused and the surrounding community." The evidence he cited for this claim included a quote from Grants Pass that inaccurately (and misleadingly) claimed more than 40 percent of Seattle shootings in early 2022 were "linked to homeless encampments"; in fact, that figure represents five shootings in 2022 in which the victim, the perpetrator, or both happened to be homeless.

Alison Eisinger, Executive Director of the Seattle/King County Coalition on Homelessness, said the court's decision "contradicts fundamental constitutional principles and ignores the reality that Burien provides insufficient shelter options for its unhoused residents and none at all for single men. We respect the court’s attempt to thoroughly address each issue presented and explain its analysis to the parties but strongly disagree with this ruling, which forces the homeless out of Burien. We will be consulting with our clients about appealing this decision to ensure Washington’s constitution protects everyone, regardless of housing status.”