You're driving a Prius with a dog bomb sticker.
Yep.
It's good for your cred in a place like Olympia.
All right, well good.
Welcome to County Connection, the official podcast
of the Washington State Association of Counties,
where we dive into the legislative issues shaping
the future of our communities.
From budgets to public safety, infrastructure to elections,
we'll break down what's happening in Olympia
and how it impacts counties from across the evergreen state.
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Welcome back, everybody, to our second episode of the County
Connection podcast.
I'm Paul Jewell, government relations
director with the Washington State Association of Counties.
We're here today with Curtis Steinauer.
Curtis, welcome back to the podcast.
Thanks, Paul.
Good to be here.
Yeah, it's good to see you.
Last week, we got kind of an update from you
about what to expect this session.
Here we are now in the second week.
Feels like it's been longer than that, at least
for me, I don't know about you.
Yes.
But now you've got a better idea.
And there's been over 1,000 bills
already dropped between pre-filing and really
the first week.
I know you're eager to talk about at least one
that you think our members are really find interesting.
What bill is that?
So I want to talk about today House Bill 1380.
This is a bill sponsored by Representative Mia Gregerson.
This bill has to do with local governments
authority to regulate access to public space.
This is an issue that local governments
been facing for the last decade or so.
It's mostly in regards to how local governments are
interacting with their local homeless community,
their unsheltered community, in regards
to setting ordinances that govern when, how, and in what
manner people can access public space that's
accessible to the general public.
So place like sidewalks and.
OK, I was going to ask, what do you
mean when you say public space?
So you said sidewalks.
But what about, so that's outdoors.
So I'm assuming you're like sidewalks
outside of public buildings, maybe parks, roadways,
things like that.
What about inside?
Oh, I think this bill gets to those spaces
as well, a place like the lobby of a city hall, right?
The specific terminology in the bill
is any public space that is accessible
to the general public.
And so like you said, parks, that applies.
Outdoor spaces apply.
But I think also indoor spaces would apply.
I think in the case of most Washington local governments,
those indoor spaces are pretty limited, right?
And where we really see this as a problem
and where we're going to get into conflict between what's
in this legislation and what local governments are trying
to do and, frankly, from Waspac's perspective,
have a right to do in terms of regulating the public space,
it's really that outdoor space we're concerned about.
So this bill is about local governments and their ability
to regulate that access.
You said it has to do with any public space that's
accessible to the general public.
So for instance, if it's just employee-only space,
or maybe it's a space that's rented out to,
you know, leased out to maybe a for-profit business
or a service provider or something like that,
we're not talking about those spaces.
I do not think so.
So yeah, and that's an interesting question
that I hadn't really thought about too deeply,
because the public spaces that we're talking about,
you know, this bill is targeting a very specific realm
of this, and that's, like I said, sidewalks, parks,
public right of ways, places where over the last decade
we've seen homeless encampments, and we've
seen unsheltered people living.
Kind of claiming those spaces.
Exactly.
At times, right?
Right.
Well, and you know, to be fair, I
think the word that advocate organization
would use is existing, right?
We have a housing crisis in Washington state,
and I think you have to start this conversation from a place
of compassion and recognizing that in a lot of cases,
when you have the unsheltered community in the downtown area
of an urban core, or really anywhere where they're
existing in public space, they often do not
have anywhere else to go.
Right, I think that's the point of some of these bills, right?
If you are a person that doesn't have a home, right,
and you're living on the streets,
all your possessions are with you on the streets,
you have to be somewhere, right?
You can't just disappear.
Yes.
And whether we like it or not, that population
exists here in Washington state.
Correct, and this kind of gets into the first Supreme Court
case I want to talk about in relation to this bill.
Before I get into the details of this bill,
this background is really important.
And I think most people that have
been working in county government
will be well aware of Martin v. Boise, which
is a Supreme Court case that basically ruled that you can't
criminalize homelessness, that you can't write a law that
results in someone being fined, jailed, or made
to move from a public space just because they're homeless.
There has to be some other criminal activity
or public disruption involved.
And so that was the law of the land for many years.
During my time as a housing coordinator
in Grays Harbor County from 2017 to 2022,
that was the law of the land.
What are the impacts of that decision
when we think about local government regulations?
Because I know we haven't really gotten
into the substantive nature of the bill and what it does yet.
But it's definitely, I can tell you're
leading us in that direction.
So what are the practical implications of Martin v. Boise?
You said it established that you can't criminalize
being homeless.
What does that mean?
That means that the practical implication ended up being in it.
And there was some other court cases
that had to happen for us to get there.
Several cities had a litigation brought against them
by service providers that work with the homeless.
When I worked in Grays Harbor, the city
of Aberdeen, which is our largest city in the community,
was one of them.
And those court cases helped set a lot of legal precedent
around how local government should
interpret Martin v. Boise.
And the place we got to was that under Martin v. Boise,
you can't write an ordinance that
says homeless people can't exist in public space
unless you can identify an alternate place for them to go.
For some communities, Olympia, I think, is a great example.
Their solution was we create set-aside mitigated tent
encampments where people are allowed to pitch a tent
and exist.
And because we have those spaces to refer people to,
as long as we have an open spot in those spaces,
law enforcement can interact with unsheltered people
who are occupying public space in inappropriate ways,
sleeping in a park, blocking a business doorway
in a downtown area.
And they can refer them to those mitigation places.
Many other communities took the different strategy
of ensuring that there was indoor emergency shelter
to refer someone to.
But the bottom line is Martin v. Boise
made it so that you could not enforce ordinances that
restrict sitting, lying, attempting to keep warm,
pitching a tent in public spaces,
unless you could say, these are the places you can do that.
I see.
OK.
That makes a lot of sense because when you first started,
you said a municipality, a city couldn't
pass a law that says you can't exist in a public space.
And I was sitting here trying to think to myself,
now who would pass a law that says
you can't exist in a public space?
But what you're saying is it's a de facto law, essentially,
because what they would say is you can't sit, stand, pitch
a tent, loiter for a period of time, et cetera, et cetera.
And that essentially made it quote unquote,
if you were a person that was homeless,
impossible to exist in a public space.
And we can get into the weeds.
There's some specifics that they eventually
courts directed local governments
to be specific as to time, place, and manner.
Those are some important terms that
have made it into this bill.
We'll talk about in a minute, which just means that,
for instance, city of Aberdeen.
Again, I'm picking on them a lot,
but it's the place I'm most familiar with
in terms of this issue.
Their solution to this eventually,
when I left Grace Harbor County, was
to have a certain segment of the community's sidewalks
where you could, between the hours of 10 AM and 6,
or 10 PM, excuse me, and 6 AM, you
could have a tent on those areas of the sidewalk
in just one part of town.
And that satisfied time, place, and manner.
I see.
So the manner is you can sleep in a tent,
the time being 10 PM to 6 AM, the place
being these specific streets, the sidewalks.
So to just make this really simple and really clear,
if I'm ABC City, we're just going to say I'm city ABC,
I cannot pass, and I pass a law that says
you can't camp on my sidewalks, you
can't hang out in the park for more than two hours,
you can't be in the park overnight,
if it's you can't hang out under the eaves
or around the grounds of City Hall past 10 PM, et cetera,
et cetera.
And those are just blanket regulations.
And there are people who are homeless in my community
and have no other place to go.
I'm violating the law.
But if I'm XYZ City and I have the same regulations in place,
but at the same time, I designate a location
or two or three, something that's
adequate enough for the number of people
who are in my location roughly, so that I have some place
where they can go, then if I have those same laws in place,
I am in compliance with the law.
That's right.
And a couple important things.
One, I don't know that I would assert adequacy was a standard.
You didn't have to say we have 150 unsheltered homeless people
on our point in time count, so we have to have 150 places
to sleep.
That was not part of the standard.
You just had to have a place.
So just a place.
But it couldn't have been just big enough for one
if you clearly had 100, could it?
So Martin v. Boise, and again, this
is going to be important for when we do dig
into the specifics of this bill, Martin v. Boise
was enforced on not the ordinance itself
and the ordinance's structure, but the enforcement
of the ordinance.
So what Martin v. Boise basically said when it was the law
of the land, and not the decision itself,
but eventually what the practical implications
on the ground were after that ruling and the case
law that came after it, is that you could have a no sit,
no lie ordinance for your sidewalks, for example.
But if you didn't, if when the law enforcement approached
a unsheltered person that was sleeping in a business doorway,
if they couldn't identify a place for that person to go,
they wouldn't be able to enforce that law.
That was the standard.
I see.
So at that moment, when I wanted to,
wouldn't say I might want to enforce, if there's no space,
regardless of whether I have space allocated,
if there is no space at that time,
whether it's an indoor shelter, an outdoor space, whatever
it may be, then that's really the test.
Yes.
OK.
Yeah, and I think I've been remiss to not do this earlier
in this discussion, but I think at this point, I should pause
and say, I am not an attorney.
None of this should be construed as legal advice.
All of the decisions that local governments have made
about these ordinances involved a lot of time
between elected officials and their prosecutors
and a lot of litigation between the service providers that
are working on behalf of vulnerable people
and the local governments that have these ordinances.
That's, I think, one of the biggest problems
with this bill we're going to talk about.
In 2024, we had a new Supreme Court case
that set everything on its head a bit,
and that's Grants Pass v. Johnson.
This is a case that came out of Grants Pass, Oregon.
Grants Pass, Oregon had a law that was one of the laws
that we were speaking to that essentially, it
didn't say you can't exist unsheltered in the community,
but it was so onerous or a lower level court
ruled that it was so onerous toward unsheltered people
about where they could be and when they could be there
that Party Johnson, the party that brought the lawsuit,
asserted that it violated vulnerable people's 8th
Amendment rights, and that it amounted
to cruel and unusual punishment.
So it ended up being a civil rights case.
Correct.
And it got peeled all the way to the US Supreme Court,
and in 2024, the US Supreme Court
ruled that it did not violate unsheltered people's 8th
Amendment rights for a local government
to regulate the use of public space.
And they also, in this decision, overturned Martin v. Boise,
and they said that local governments have the right
to regulate these things.
And they said that when a local government does
pass an ordinance that regulates the use of public space,
they shouldn't pass ordinances that specifically single out
one class of people.
They're saying that if someone has a right to access this
space, everyone has a right to access this space in this way.
But if you regulate the right to access space,
you say there's no sitting on the sidewalk.
As long as you say no one can sit on the sidewalk
and no homeless people can sit on the sidewalk,
that you have that power as a local government under Grants
Pass v. Johnson.
So we had the Martin v. Boise case.
That was the law of the land for a while, which we just spent,
it feels like, 10 minutes kind of explaining.
And now you're telling me that this Grants Pass versus Johnson
case that came afterward basically wiped that right off
the table.
So even though that was the law of the land,
how long was that case law in effect?
I don't remember exactly when Martin v. Boise was,
but again, my entire career.
A couple of years at least, right?
2017 to 2024 at least.
OK, so five to seven years.
Let's say five to seven years.
That was the case.
Now we have this new pass out of Grants Pass, Oregon,
which is a beautiful place, by the way,
called Grants Pass v. Johnson, which
put essentially Martin v. Boise to the test again
in front of the US Supreme Court.
And they basically overturned it.
Correct.
OK.
So what are the implications now?
So the implications now are, like I said,
we're under Grants Pass v. Johnson now.
That's the doctrine local governments
are operating under when they regulate
the use of public space.
And a very simplified version of the environment right now
is that local governments have the authority to regulate access
to public space as long as they regulate it for everyone
and not for a specific class of people.
OK.
You did mention that.
So any law that you would pass regarding time, place,
and manner for access to public spaces
has to apply to everyone equally.
You're not allowed to single out people who are homeless, people
who are wearing red shoes, people who have blue hats,
people who wear brown coats, none of that stuff.
It has to be applied everywhere all the time to all the people,
exactly the same.
Yeah, essentially.
Yes.
And so now with that background, we can finally, mercifully
talk about this bill.
So Representative Grayerson has introduced House Bill 1380.
And this is a direct response to the new legal climate
we're under with Grants Pass v. Johnson.
This bill introduces a new legal standard
into this very complex and frankly fast changing legal
environment that local governments have had
to navigate over the last decade.
And what this bill would do is it says,
just like Martin v. Boise had ruled,
that when local governments are crafting these ordinances
to regulate the use of public space,
they have to take into account time, place, and manner.
And it sets a new legal standard around that.
It says that local government ordinances
have to be objectively reasonable in regards
to time, place, and manner.
So objectively reasonable is a legal framework
that comes out of another Supreme Court case
that I don't remember the name of.
But it was a 2002 case about police use of force.
And that case ruled.
And it's now the law of the land in every state
in the United States that when a police officer uses force,
they're allowed to as long as their decision was objectively
reasonable given the totality of circumstances.
That's the language and statute, which basically
means that if police use force, they
have to have a good reason to.
And they have to be able to defend
their reasons for doing so.
It can't just be because they wanted to or out of coercion.
It has to be that there was a legal purpose in order
to enforce the law or keep people safe or execute
their duties.
It was objectively reasonable to use force.
So we have this bill that you're saying
is injecting kind of this new legal standard
into this whole conversation around how
do you regulate public spaces.
But wants us to go back to this idea of time, place,
and manner, which sounds like going back
to the previous Supreme Court decision,
even though we have a new decision in the Grants Pass
case that kind of wiped that one off the table.
And then at the same time, it's adding some ambiguity,
it sounds like, to the mix.
Why?
Why would that be the case if the Supreme Court has given
pretty clear direction under Grants Pass v. Johnson
that local governments do have the authority,
as long as it applies equally to everyone,
to regulate as they see fit, essentially, with regard
to access to public spaces?
My best understanding is that this is an attempt
to strike a middle ground.
It is more permissive for local governments
than Martin v. Boise was.
It doesn't say you can't enforce your ordinances unless you
have a place to send someone.
It says that when you write an ordinance,
it has to be objectively reasonable.
Now, there's a more cynical side of me
that I think recognizes that part of the purpose
behind this legislation is to enable the advocacy
organizations to bring suit against local governments,
they think, are creating ordinances that are intentionally
meant to outlaw the existence of unsheltered people.
Well, OK, stop there for a second.
So let's unpack that for a minute.
So you're saying that what you think the intent is,
what you've heard the intent is, is to try to create or try
to carve out a middle ground between Martin v. Boise
and the Grants Pass v. Johnson decisions
in that what's being proposed here
is less restrictive and more permissive to local governments
than Martin v. Boise, but obviously not as permissive
as Grants Pass versus Johnson.
And I assume that has to do with this objectively reasonable
standard that is somewhat ambiguous.
At least I'm interpreting it as somewhat ambiguous.
And let me tell you why.
When you said that this was based upon in many,
or at least this standard is used in cases of, say,
police use of force, and we also know
it's used in self-defense cases as well,
again, were your actions in that particular instance
objectively reasonable given the totality of the circumstances?
It's also used in other places that
aren't necessarily related to local government
regulation of public spaces.
So injecting that creates some flexibility.
It also creates some ambiguity.
I will admit that when I read it at first
in preparing for this podcast, a few alarms went off in my head
because I was trying to find some good definitions for this
related to local government regulation of public spaces,
and I couldn't find any.
And then you say, as I'm thinking about that,
and you're talking about this middle ground,
and I'm thinking about what I just said, then you say,
the more cynical part of me thinks that maybe this is also
an opportunity for litigation to actually occur.
Explain that to me a little bit with the frame of mind of,
OK, this is a middle ground, but we've
got this squishy term in here, and it
might make an opportunity for advocacy groups
to maybe get some better definition around what
that means.
Is that kind of what you're thinking?
Yeah, absolutely.
So I would not say that it's somewhat ambiguous.
I would say that it is completely ambiguous.
I would say that there's absolutely no legal precedent
for what ordinances might meet that objectively reasonable
standard.
We have a decade of case law under Martin v. Boise
and then eventually Grants Pass v. Johnson,
and this would set that cycle completely over again.
Because instead of having to meet the precedent set
in those cases, local government ordinances
would now have to meet this brand new legal standard.
Yeah, because with this term, there is no precedent, right?
Correct.
No precedent and no definition in the bill.
And frankly, we've heard even from the advocacy
organizations that are in support of this
that the only way to define what ordinances would
meet the objectively reasonable standard
is through litigation.
Interesting.
We're not the only state that's done this though, right?
Correct.
So our neighbors to the south have a similar regulation
in place.
I don't know how old it is.
What has their experience been so far?
Right, so in 2021, state of Oregon,
the legislature in Oregon passed the exact language that
is in Representative Gregorson's bill.
They passed this in direct response
to a local government ordinance that they
saw as problematic that the city of Portland
had enacted to try to address its unsheltered population.
This law passed in June in Oregon in 2021.
City of Portland made some, seeing trouble coming,
made some changes to its ordinance in July.
That wasn't sufficient for the advocacy organizations
and they sued that September.
So it's a very quick turnaround from when
Oregon passed the law to when a lawsuit was eventually filed.
And unfortunately, you'd think that that lawsuit might
have created some precedent.
But unfortunately, the city of Portland,
out of fear of this litigation, settled quickly
when they were sued.
And they settled to the tune of $145,000
for a lawsuit that didn't even last two months.
Wow.
So they settled really quickly to avoid a bigger payout
potentially.
But what we got out of it for our use
was actually really nothing.
There's no presidential court decision
for us to base anything on moving forward.
Have there been any other lawsuits in Oregon
around this objectively reasonable standard?
There has not been another lawsuit in Oregon.
I will say that Oregon has far less urban space
than Washington does.
And to my knowledge, local governments in Washington
have more ordinances that I think
are seen as targets for lawsuits by advocacy organizations
than municipalities in Oregon do.
And most of these are cities.
I actually don't know of a county
that is going to be subject to a lawsuit very quickly
after this ordinance passes.
But it would affect all of us in the long term.
And so this is an issue for counties.
And we're advocating that this bill would just
cause a necessary litigation without creating any new services
for unsheltered folks.
So the bill had a hearing this week, is that right?
It did.
And how'd that go?
So the hearing included a lot of opposition testimony.
I don't know exactly how many people testified.
I think somewhere between 20 and 30 people showed up to testify.
And I think two people testified pro
aside from advocacy organizations.
So you had a handful of advocacy organizations, all lawyers,
the ACLU, Northwest Justice, I think an independent lawyer
on their own accord, all showed up to testify pro.
The National Housing Alliance testified pro.
And then one former planner and one official
from the city of Berrien testified pro.
City of Berrien is Rep.
Gregorson's district.
And everyone else, many mayors, many city planners, myself,
and the Association of Washington Cities,
counterpart for us, Carl Schroeder,
all showed up and testified in opposition.
And the same unified testimony that this
would result in unneeded litigation,
that it takes away local government control,
that it subverts the decisions that the Supreme Court has
made in recent years.
OK.
Well, given that that's how the hearing went,
what do you think we can expect with this piece of legislation
moving forward?
Is it going to continue to move?
I know we've been in conversation
with Rep. Gregorson.
This is her bill.
I know she's really passionate about it.
And by the way, Rep.
Gregorson has been great to work with in the past.
And I've spoken to her personally,
along with you on this bill.
And I know that she's really open to hearing our concerns
and potential solutions.
How do you think things are going to move forward,
knowing that we're only in week two of the session?
There's a long road ahead of us.
Yeah.
And I agree.
Rep. Gregorson has been great to work with.
She's brought us into the conversation.
I had naively, first session, with all the opposition
testimony, I had hoped that the bill might slow down or not
move based on that feedback.
That's not the case.
It has an executive session planned for next Tuesday.
Because the chair is the second on the bill,
and they've scheduled an executive session,
I would expect that to move out of committee.
We have a meeting with all the other stakeholders, ACLU,
several other advocacy organizations,
as well as the Association of Washington Cities and several
cities themselves.
We have a meeting with all of those stakeholders
and Representative Gregorson that we're setting up
before that executive session to provide some feedback
since the public hearing.
And then the bill will continue to move through the process
and will continue advocating that this doesn't help
unsheltered folks and causes a lot of problems
for cities and counties.
OK, so the ACLU is involved?
Yes.
They are the loudest advocate for the bill.
And they're also the organization
that brought the suit against city of Portland.
OK, interesting.
All right, well, that's great information.
Thanks for that level of detail.
Boy, that was a long journey backward and forward, Curtis.
I'm glad that you're on top of it.
Second week, you're what, 10 days in.
How are you holding up?
You know, sometimes you take it one day at a time.
I think I'm down to one minute at a time.
Lots to do, just trying to move things forward
and stay on my two feet here.
Well, keep up the good work.
I know our members really appreciate it
and they're dependent on you.
Yeah.
All right, we'll see you next time.
Thanks, Paul.
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