Supreme Court rules on homeless encampments

This story on Supreme Court ruling on homeless encampments was produced by CalMatters, an independent public journalism venture covering California politics and government. For more info, visit calmatters.org.

By Marissa Kendall (for CalMatters)

The U.S. Supreme Court today granted cities more power to arrest, cite and fine people who sleep outside in public places — overturning six years of legal protections for homeless residents in California and other western states.

In Grants Pass v. Johnson, the court sided with Grants Pass in a 6-3 decision, ruling that an ordinance passed by the Oregon city that essentially made it illegal for homeless residents to camp on all public property was not unconstitutional. Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — all Democratic appointees — dissented.

The much-anticipated decision overturns a prior influential Ninth Circuit Court of Appeals ruling, and means cities no longer are prohibited from punishing unhoused residents for camping if they have nowhere else to go. It will have major ramifications for how California leaders and law enforcement handle homeless encampments. 

Now it’s up to western cities to decide whether to use existing ordinances or pass new ones to banish, cite or arrest homeless campers when no alternative shelter exists.

San Francisco is among cities ready to seize the new power. “This decision” Mayor London Breed told a news conference, “has really provided us with clarity that we will use in order to be a lot more aggressive with people who are choosing to stay on the streets of San Francisco — especially when we’re offering them help.”

Last year California cities and counties reported having roughly 71,000 emergency shelter or transitional housing beds. It would take more than twice that number to accommodate every unsheltered resident today.

“Homelessness is complex,” wrote Justice Neil Gorsuch, a Trump appointee, writing for the majority. “Its causes are many. So may be the public policy responses required to address it. At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not.”

The Supreme Court ruled regulating camping on public property does not constitute “cruel and unusual punishment” under the 8th Amendment — a clause that the court said is restricted to limiting the type and severity of punishment, not the reason for punishment. And the types of punishment Grants Pass imposed on homeless residents — “limited” fines and a maximum jail sentence of 30 days — don’t qualify as cruel and unusual because they aren’t designed to impose “terror, pain or disgrace,” he wrote.

The court also rejected the homeless respondents’ claim that ordinances banning people from camping, if there is no shelter available, essentially criminalize the very act of being homeless. Anti-camping ordinances, such as those adopted in Grants Pass, don’t take status into account; they apply to homeless people, but they also apply, for example, to vacationing backpackers and student protesters camping in front of municipal buildings.

Sotomayor, in her dissent, argued the court’s opinion leaves society’s most vulnerable people with an impossible choice: “Either stay awake or be arrested.”

“Sleep is a biological necessity, not a crime,” she wrote, joined by Kagan and Jackson. “For some people, sleeping outside is their only option. The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow. For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional.”

Ed Johnson, lead counsel for the homeless respondents, said while today’s decision is disappointing, it’s important to remember that it’s not up to the courts to solve homelessness. 

“That job falls to all of us,” he said in a statement. “The solution to our homelessness crisis is more affordable housing.”

Activists supporting the civil rights of unhoused people decried the ruling, which they called the most important Supreme Court decision on homelessness in decades. They argued it could result in people getting arrested simply for being homeless. 

“The Supreme Court’s profoundly disappointing and unjust decision to overturn the Ninth Circuit’s ruling is a severe blow to the rights of unhoused individuals,” Jesse Rabinowitz, spokesperson for the National Homelessness Law Center, said in a statement. “Arresting or fining people for trying to survive is expensive, counterproductive, and cruel. While we are enraged, we are not surprised that this Court has again put the needs of the rich and powerful before the needs of everyday people struggling to get by.”

But groups including the League of California Cities, California State Association of Counties, and the California Chamber of Commerce cheered the decision, saying it would finally allow for the removal of unsafe, unsanitary homeless encampments.

“This ruling removes the shackles that have held back efforts to humanely get our unhoused residents the shelter and help they need and will enable us to restore order to our streets, sidewalks and public spaces,” Jim Wunderman, president and CEO of the business-backed Bay Area Council, said in a statement.

Even California Gov. Gavin Newsom weighed in, filing a “friend of the court” brief in which he wrote: “Hindering cities’ efforts to help their unhoused populations is as inhumane as it is unworkable.”

This morning Newsom hailed the ruling. “This decision removes the legal ambiguities that have tied the hands of local officials for years and limited their ability to deliver on common-sense measures to protect the safety and well-being of our communities,” he said in a statement.

The issue of homeless encampments has had the unusual effect of uniting some Democratic officials with conservatives who also pushed for a crackdown.

“Californians should not have to tolerate the encampments that have taken over our communities,” Senate GOP leader Brian Jones, who has been pushing without success for a statewide camping ban, said in a statement. “With this decision, Democrat politicians can no longer justify allowing this severe public health and safety crisis to persist on our streets. It’s time to clean up California.”

But not all elected officials were pleased with the outcome.

“Today’s decision is not surprising given the make-up of the Court but disappointing nonetheless,” Los Angeles Mayor Karen Bass, who has prioritized clearing encampments in her city by moving unhoused people into hotels, said in a statement. “This ruling must not be used as an excuse for cities across the country to attempt to arrest their way out of this problem or hide the homelessness crisis in neighboring cities or in jail. Neither will work, neither will save lives and that route is more expensive for taxpayers than actually solving the problem.”

San Diego recently passed an ordinance banning camping on all streets and sidewalks only if there are shelter beds available, and Mayor Todd Gloria gave no indication that would change. In a statement he said “regardless of (the) Supreme Court ruling,” San Diego will continue expanding shelters and removing encampments it deems unsafe. 

Those who are or have been homeless are worried about what happens now.

Anita De Asis Miralle, who goes by “Needa Bee,” was homeless for about eight years before finding housing in Oakland earlier this year. De Asis Miralle, who advocates for other unhoused people through her grassroots group The Village, worries the ruling will lead to cities disregarding their rights. Already, she said, she’s seen Oakland clear encampments without offering occupants adequate shelter. To her, those sweeps rip apart communities and take away people’s precarious sense of stability.

“The big fear is not only how bold they’re going to be,” De Asis Miralle said, “but how much deeper into instability and trauma and homelessness it will drive people.”

How we got here

The case stems from a 2018 lawsuit against Grants Pass, a small city in southern Oregon that banned camping throughout its jurisdiction. The lower courts sided with homeless residents who argued that because humans need to sleep somewhere, the Grants Pass ordinance made it illegal to be homeless. 

That decision was in line with an earlier Ninth Circuit appellate ruling — Martin v. Boise — that determined that punishing an unhoused person for camping in public, if they have nowhere else to go, violates the Constitution’s 8th Amendment ban on cruel and unusual punishment.

The 2018 Boise ruling changed how cities respond to homeless encampments. Many interpreted the court decision to mean that they could not clear an encampment unless they had a shelter bed available for every displaced resident. Local courts have hit several California cities — including San Francisco, Sacramento, Chico and San Rafael — with orders halting or delaying encampment clean-ups due to lack of adequate shelter. 

Many California cities and law enforcement agencies have complained that the decision tied their hands and prevented them from enforcing common-sense ordinances governing homeless encampments. Today, the Supreme Court majority agreed, saying Boise created an “unworkable” mandate for cities.

The Boise “experiment” forced cities and law enforcement agencies to determine if there is a shelter bed available for each homeless individual they attempt to fine or arrest, Justice Gorsuch wrote. That’s a difficult question, as it can depend on factors such as the quality of shelter beds available, a person’s individual needs, whether they rejected a prior offer of shelter, and more. 

“Those unavoidable questions have plunged courts and cities across the Ninth Circuit into waves of litigation,” Gorsuch wrote.

The COVID pandemic made the situation more complex. In 2020, federal health regulations recommended that cities not clear any homeless encampments, in order to limit the spread of the virus and protect vulnerable homeless residents. Encampments in many California cities grew and became more entrenched, with residents building makeshift shacks out of scraps of wood and metal. 

When vaccines arrived and concern about the pandemic gradually died down, it left in its wake a growing discontent over the proliferation of homeless encampments in public open spaces. With that came a chorus of complaints from city leaders and law enforcement that the Boise ruling stripped them of the power to enforce rules regarding homeless residents. 

It’s an issue that’s particularly crucial in California, which is home to nearly a third of the country’s homeless population. More than 180,000 unhoused people live in the Golden State, including more than 123,000 people who sleep in encampments or other places not meant for habitation. 

Multiple California cities already are cracking down on those homeless camps. Some were getting around the Boise ruling by banning camps in certain areas rather than throughout the entire city. San Diego recently started enforcing a controversial ordinance that prohibits camps near schools, shelters and transit hubs, in parks, and — if shelter beds are available — on all public sidewalks. At the same time, the city opened two sanctioned tent campsites where about 500 unhoused people can sleep. 

San Diego’s ordinance has led to a noticeable decrease in the number of homeless residents camping downtown. But camping is just as prevalent — if not more so — along highway on- and off-ramps, and along the San Diego River.

Senate Bill 1011 by Jones would have imposed a statewide camping ban similar to San Diego’s. But the bill died in its first committee hearing, suggesting a lack of appetite for a statewide crackdown. 

Activists who provide homeless services, as well as researchers who study the population, say cities should not be able to break up encampments with impunity. Encampment sweeps cause homeless residents to lose important belongings and documents, push them farther away from their sources of food, medicine and other services, and — especially if arrests or citations are involved — make it harder for them to find jobs and housing, according to experts. 

“The enforcement of laws criminalizing homelessness has been shown to have wide-ranging and lingering negative impacts on those experiencing homelessness, which create significant barriers to exiting homelessness,” a group of more than 50 social scientists specializing in homelessness wrote in a “friends of the court” brief in the Grants Pass case.

The Supreme Court heard oral arguments in April. In their comments and questions, the justices appeared divided along ideological lines, with the liberal justices more sympathetic to the arguments of the homeless residents. The Supreme Court has a 6-3 conservative majority. 

Underscoring the importance of the case, more than three dozen elected officials and organizations weighed in by filing “friend of the court” briefs.

What happens now?

This is far from the last time the courts will weigh in on the rights of homeless residents, Johnson, the lawyer for the homeless respondents in the Grants Pass case, said during a media call.

There are several legal claims Johnson’s team raised against the Grants Pass ordinance that the Supreme Court did not address today. For example, the team argued the ordinance imposed excessive fines, and was too vague. His team can re-argue those points when the Supreme Court remands the Grants Pass case back down to the lower court. 

Johnson also promised to continue pursuing additional lawsuits on behalf of homeless individuals and groups who are fighting for their right to sleep outside in peace. 

“The legal fight on this issue will continue today and every day,” he said, “until cities stop punishing their homeless residents for trying to survive.”