BURIEN: Dispute Between City and Sheriff Escalates With New Federal Lawsuit

A dispute that has been simmering since mid-2023 between the City of Burien and the King County Sheriff’s Office escalated in March when Patti Cole-Tindall sued the city in federal district court over a new ordinance passed by the city council.

The Sheriff’s new legal action comes at a time when the United States Supreme Court (SCOTUS) has agreed to revisit the limits placed on cities after a petition for review was filed claiming the federal courts are unreasonably constraining the ability of local elected officials to address the homeless crisis.

Burien Mayor Kevin Schilling was strongly critical of the Sheriff for what he said was the Sheriff picking and choosing which city ordinances she is willing to enforce. The city manager directed that funding for contracted police services be withheld from the Sheriff because of her action. Schilling was also critical of County Executive Dow Constantine, but Constantine responded that his office was not involved in the litigation, even though he selected and supervises the Sheriff.

Burien’s new ordinance prohibits people from camping on all nonresidential public land at all hours of the day or night. Previously, people experiencing homelessness were allowed to sleep outdoors on some sidewalks if no shelter is available, as required by a federal court decision from Boise, Idaho. The city has suggested that utilizing shelters outside the city limits is acceptable for meeting the federal requirements. The city’s new camping ordinance also prohibits camping on public property within 500 feet of schools, parks, daycares, and libraries.

In refusing to enforce the city’s new ordinance by arresting violators, the Sheriff said, “We have an obligation to avoid engaging in conduct that has been addressed in federal litigation and found to be unconstitutional. As law enforcement officers, we must uphold the state [constitution] and the Constitution of the United States of America, and if there is a law that is not constitutional, I cannot in good conscience have my people enforce that.”

Burien is one of several cities in King County (as well as Sound Transit, Metro and the Muckleshoot Tribe) that does not have its own Police Department, and instead contracts with the King County Sheriff’s Office for police services.

Last year, the city of Burien wanted the Sheriff’s office to remove homeless campers from a city-owned vacant lot, but the Sheriff refused to do so. In a letter to the City from the General Council (attorney) for County Executive Dow Constantine, King County asserted that removing the campers would violate two recent decisions by the 9th Circuit Court of Appeals which has jurisdiction over much of the West Coast, including Washington state. The essence of the court decisions prevents local governments from removing people sleeping on public property unless there is immediately available space at a shelter for the individual being removed.

In the wake of that earlier refusal by the Sheriff under its police services contract with the city, last year Burien businesses and volunteers began sweeping the city-owned property where homeless individuals were camping, reportedly with considerable success.

On January 12, 2024, SCOTUS agreed to review the issue of cities enforcing a ban on homeless people camping on public property. While that case is pending in Oregon, the King County Sheriff filed the current lawsuit in federal district court against Burien.

Two federal appellate court rulings in the cases of City of Grants Pass v. Johnson and Martin v. City of Boise appear to be affecting how cities throughout the Northwest and California address their own epidemics of homelessness. San Francisco, which spent over $672 million during the last fiscal year to provide shelter and housing to people experiencing homelessness, told the justices in a “Friend of the Court” brief (in the pending Oregon case) that its inability to enforce its own laws “has made it more difficult to provide services.”

The “constitutional dimension” in both the Grants Pass and Martin cases, as well as the declaratory judgment lawsuit filed in federal district court by the King County Sheriff, involve the Eighth Amendment’s ban on cruel and unusual punishment. The federal courts have reasoned that, just as the city could not punish someone for their status (being homeless), it also could not punish them for conduct “that is an unavoidable consequence of being homeless.” Cities, however, say the federal courts’ approach to the issue is dysfunctional, and compromises the ability of local government to assist homeless constituents at their various points of need.