Homeless protesters say Idaho police are violating their rights. Court case possible

Sarah A. Miller/smiller@idahostatesman.com
·4 min read

It has been more than a week since protesters first set up tents across from the Idaho Capitol building to raise awareness for local housing needs. In that time, police have on multiple occasions taken items that they deemed illegal to be on the grounds.

Now the protesters might pursue legal action.

“The protesters are prepared to seek the protection of their constitutional rights in federal court if the Idaho State Police attempt to interfere with their right to express their views and do not return their personal property,” Martin C. Hendrickson, statewide advocacy attorney of Idaho Legal Aid Services, stated in a news release.

Advocates for the protesters say the decision to consider court action stemmed from the tactics of Idaho State Police. Over the past week, officers have confiscated tarps, large propane heaters, tables, mattresses, sleeping bags, blankets and clothing. Idaho Legal Aid said one officer threatened to tear down the tents on the northeast corner of West Jefferson and North Sixth streets if they were not removed by Sunday, although no written warnings or citations were given.

Hendrickson said he sent a letter to Gov. Brad Little on Saturday asking that he “protect their right to express their concerns to Idaho officials and Legislators about the lack of affordable and available housing and to bring attention to the lack of services available to homeless persons.”

The Idaho attorney general’s office has been in touch with Idaho Legal Aid and is preparing a response, Hendrickson said.

People are allowed to protest in tents — even overnight — on the state-owned Capitol Mall, which includes both buildings, but cannot camp there or bring items that indicate camping, according to a court ruling made after the Occupy Boise movement in 2011.

Idaho Legal Aid believes that Idaho State Police have violated both the protesters’ First Amendment right to engage in protest activities and their Eighth Amendment right to sleep on public property when no shelter is available. The organization said that under the 2019 Martin v. City of Boise ruling, people experiencing homelessness cannot be criminally charged for sleeping outside on public property if there is no shelter space available.

The news release noted that Interfaith Sanctuary shelter is full, having reached its maximum capacity for the first time on Jan. 14. Since that time, Interfaith has set up a heated tent in the parking lot for overflow guests. On Sunday night, 11 people on Interfaith’s waiting list were sent to the Boise Rescue Mission shelter. Five people who did not qualify for the Rescue Mission slept in the Interfaith tent.

“The protesters are homeless individuals who do not have access to available shelter and have been sleeping in vehicles,” the Idaho Legal Aid release stated.

Hendrickson told the Idaho Statesman that he believes the Boise Rescue Mission, a Christian nonprofit organization, does not count as available shelter space because some homeless individuals do not qualify to stay there or have religious objections to staying there. In the past, some guests who have been kicked out for violating rules have not been allowed to return. The Rescue Mission currently has more than 100 open beds.

Last year, the 9th U.S. Circuit Court of Appeals ruled in Garcia v. City of Los Angeles that police cannot seize “bulky items” owned by a homeless person that are being stored in public without giving the owners notice. Police also may not discard those bulky items.

According to Idaho Legal Aid, the Martin and Garcia rulings apply in situations even when those involved are participating in a demonstration.

On Monday morning, police arrested a protester named Ty Werenka, 28, on suspicion of obstruction and delaying officers. Police say he repeatedly put himself in a position to obstruct the removal of “unclaimed prohibited property.” He was warned that if he continued, he would be arrested. Werenka was given a misdemeanor citation and posted bail.

It’s not the first time the local activist has been arrested for his involvement in protests. Werenka won a court challenge against the city of Boise in October after a judge dismissed a citation for using a megaphone during a protest against police injustice. Ada County Magistrate Judge Ransom Bailey ruled that it was an unfair application of the ordinance.

State police spokesperson Lynn Hightower told the Statesman that protesters have declined officers’ offers to connect them with available services for those seeking shelter.

“It is the intent of troopers to continue to work with those on site, to direct anyone in need of health or social services to the appropriate service providers, and to continue to educate those on site as to allowable uses of the Capitol Mall to keep the government-owned property maintained and safe,” Hightower said in an email.

Despite police officers’ willingness to provide shelter information, some demonstrators have said they have had experiences of not being able to find a bed at either of the two shelters with emergency beds in the Treasure Valley.

“When they say there are not enough low-barrier shelter beds, they’re telling the truth,” Interfaith Executive Director Jodi Peterson-Stigers told the Statesman.

Interfaith shelter reaches ‘crisis level,’ housing advocates set up tents at Capitol

A new front opens in Interfaith Sanctuary’s fight to build a Boise homeless shelter

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