The U.S. Supreme Court ruling will allow for more aggressive removal of homeless encampments
The court upheld the ban on camping at Grants Pass in Oregon. This gives local governments the power to punish those who live outside.
By Nicole Santa Cruz
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Advocates and legal experts say that the U.S. Supreme Court decision to allow cities to punish people who sleep in public when there are no other options, will lead to municipalities taking more aggressive actions to remove encampments. This may include throwing more of homeless peoples’ property away.
The conservative majority in its Friday decision of 6-3 upheld Grants Pass’s camping ban, finding that laws criminalizing sleeping in public places do not violate the Eighth Amendment protections against cruel or unusual punishment.
In a letter written for the majority Justice Neil Gorsuch stated that state and local officials should make decisions about homelessness in the United States. Gorsuch wrote, “Homelessness has many causes.” Its causes are numerous. “So may be the policy responses needed to address it.”
The question that this case raises is, “Does the Eighth Amendment give federal judges the primary responsibility to assess these causes and devise those responses?” He wrote that it does not.
Gorsuch wrote that a lower court decision prohibiting cities from criminalizing conduct of “involuntarily homeless people” forced the U.S. Court of Appeals of the 9th Circuit (U.S. Court of Appeals) to face what it meant to be homeless and without a place to stay, as well as what kind of shelter a city should provide. He wrote that “these unavoidable issues have thrown courts and cities in the Ninth Circuit into a wave of litigation.”
Justice Sonia Sotomayor, in a dissenting view, wrote that sleeping outside was a “biological need” for some people and that it is possible to balance the issues faced by local governments, constitutional principles, and the humanity and needs of homeless people. She wrote: “Instead, most of the focus is almost exclusively on local government needs and leaves those who are most vulnerable with an impossible decision. Either they stay awake or get arrested.”
Sotomayor said that criminalizing homelessness could “cause an destabilizing cascade” of harm. Sotomayor noted that when a person’s belongings are taken away or confiscated, they often destroy important documents for obtaining housing and jobs, or work-related items such as uniforms or bicycles.
Experts and advocates said that the ruling could lead to more lawsuits over other constitutional rights, including disposing of property when encampments are removed. Other legal claims regarding cities’ treatment towards homeless people focused on the rights that protect against unreasonable searches and seizures and guarantees due process in the fourth and 14th Amendments.
Stephen Schnably is a professor of law at the University of Miami and has fought for the rights of the homeless in court.
Ann Oliva is the CEO of National Alliance to End Homelessness. She said that if more cities ban camping, this could result in an increase of law enforcement. This could cause property to be lost. She said that the ruling “opens this door.”
ProPublica is reporting on the impacts of encampment removals. found recently that Albuquerque had, in removing homeless camps, thrown away personal property, violating city policy as well as a court order which has since been lifted. ProPublica heard from some people who had their belongings thrown away by city crews multiple times. Some people described losing survival equipment, such as tents and sleeping bag during freezing weather. They also mentioned important documents like birth certificates and irreplaceable family photos.
ProPublica has received reports from dozens of people who have lived through the experience, as well as advocates across the nation. They describe how their belongings were thrown away during encampment clearances.
Legal experts say that the practical implications are that the decision empowers local authorities to issue citations, make arrests and even jail time.
Donald Whitehead is the executive director of the National Coalition for the Homeless. He believes that it will make communities think that criminalization is the right direction and discourage policymakers from finding new ways to create more affordable housing. He said, “Why develop innovative and creative solutions when it is so easy to raid encampments? You can put people behind bars.”
Whitehead is concerned that this ruling will make homeless people more vulnerable to crime and isolated.
States have already passed new legislation criminalizing camping on public lands.
The new Florida law that takes effect on Oct. 1 prohibits counties and municipalities from allowing people to camp or sleep in public places. The state’s Department of Children and Families is required to certify designated areas of camping for homeless people. Private citizens, business owners, or the state Attorney General can now sue if the county or municipality does not adhere to the law.
Kentucky lawmakers overrode the veto of Gov. Andy Beshear is a Democrat who enacted the Safer Kentucky Act. This law makes camping in certain public and private properties a misdemeanor if there are multiple violations. The law allows property owners to use deadly violence against illegal campers and will go into effect in July.
Grants Pass is a city with about 39,000 residents. Along with many other cities and states they asked the Supreme Court for a hearing. They argued that a ruling from a lower court in 2018, Martin V. Boise prevented cities throughout the West to respond to the growing number of encampments. The 9th Circuit, which covers states like California, Oregon, and Washington, with high numbers of unsheltered homeless, ruled that people who are sleeping on public land cannot be punished if they have nowhere else to sleep.
In the appeal it made to the Supreme Court Grants Pass argued the status quo hurts local governments, the residents, and the people who are homeless. Lawyers wrote that “public camping laws” were a “critical backstop (and constitutional)” for halting the growth of encampments.
Injunctions have been issued against efforts to enforce camping regulations that are common sense, even when they are coupled with shelter and other services.
Lawyers who represent people living in homelessness argue that the 9th Circuit decision does not deny cities their right to remove encampments. Lawyers noted that Grants pass had dismantled encampments during the legal proceedings “as is its right to do.” They added that politicians in the West have “chosen” to tolerate encampments instead of dealing with the severe housing shortage.
Jesse Rabinowitz is the communications director of the National Homelessness Law Center. He said that the Supreme Court decision empowered cities and states “to play a national game of human Whac-A-Mole” and to continue doing what they had stated they wanted to in Grants Pass: pushing people to another town. We’d see it happening at a national scale.”
Bob Erlenbusch is a member of the National Coalition for the Homeless and has been advocating for homeless people for over 40 years. He said that cities have now found new ways to criminalize the homelessness, as well as clear out encampments, since the Martin v. Boise ruling.
Erlenbusch described city workers in Sacramento (California) who destroy property by using bulldozers, shovels, and other tools. “And this will increase across the country.”
In a brief filed in the Grants pass case, Western Regional Advocacy Project (an organization run by people who have lived on the street) described the removal of a winter camp in Denver, where “people lost food, essential paperwork and sleeping bags, clothing, tools, medications, identification, blankets and survival gear.”
Sara Rankin is a Seattle University law professor who has studied the criminalization and dehumanization homeless people. She said that the Friday court ruling would encourage the dehumanization. She said, “Cities are sweeping at a reckless pace and have done so for years.” What happens to the people? Will the people suffer more harm as a consequence? “I would say this is a very serious concern.”
We are investigating what happens to the belongings of the homeless people who live in encampments that local agencies remove. This practice is becoming more common across the nation.
Ruth Talbot contributed reporting.