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With homelessness on the rise, Supreme Court weighs bans on sleeping outdoors

WASHINGTON (AP) — The Supreme Court wrestled with major questions about the growing issue of homelessness on Monday as it considered whether cities can punish people for sleeping outside when shelter space is lacking.

It’s the most significant case before the high court in decades on the issue, and comes as record numbers of people are without a permanent place to live in the United States.

The case started in the rural Oregon town of Grants Pass , which began fining people $295 for sleeping outside as the cost of housing escalated and tents sprung up in the city’s public parks. The San Francisco-based U.S. 9th Circuit Court of Appeals struck down the law under its holding that banning camping in places without enough shelter beds amounts to cruel and unusual punishment.

The justices appeared to be leaning toward a narrow ruling in the case after hearing arguments that showed the stark terms of the debate over homelessness in Western states like California, which is home to one-third of the country’s homeless population.

Sleeping is a biological necessity, and people may be forced to do it outside if they can’t get housing or there’s no space in shelters, Justice Sonia Sotomayor said.

“Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this? Where are they supposed to sleep? Are they supposed to kill themselves, not sleeping?” she said.

Solving homelessness is a complicated issue, said Justice Brett Kavanaugh. He questioned whether ticketing people for camping helps if there aren’t enough shelter beds to hold everyone, but also raised concerns about federal courts “micromanaging” policy.

Other conservative justices asked how far Eighth Amendment legal protections should extend as cities struggle with managing homeless encampments that can be dangerous and unsanitary.

“How about if there are no public bathroom facilities, do people have an Eighth Amendment right to defecate and urinate outdoors?” said Justice Neil Gorsuch.

Other public-health laws cover that situation, Justice Department attorney Edwin Kneedler said. He argued people shouldn’t be punished just for sleeping outside, but said the ruling striking down the Grants Pass law should be tossed out because the court didn’t do enough to determine if people are “involuntarily homeless.”

Gorsuch and other justices also raised the possibility that other aspects of state or federal law could help sort through the issue, potentially without setting sweeping new legal precedent.

The question is an urgent one in the West, where a cross-section of Democratic and Republican officials contend that the 9th Circuit’s rulings on camping bans make it difficult for them to manage encampments. The appeals court has jurisdiction over nine states in the West.

Advocacy groups, on the other hand, argued that allowing cities to punish people who need a place to sleep will criminalize homelessness and ultimately make the crisis worse as the cost of housing increases.

Hundreds of demonstrators gathered outside the Supreme Court Monday morning to advocate for more affordable housing, holding silver thermal blankets and signs like “housing not handcuffs.”

Homelessness in the United States grew a dramatic 12% last year to its highest reported level, as soaring rents and a decline in coronavirus pandemic assistance combined to put housing out of reach for more people.

More than 650,000 people are estimated to be homeless, the most since the country began using the yearly point-in-time survey in 2007. Nearly half of them sleep outside. Older adults, LGBTQ+ people and people of color are disproportionately affected, advocates said.

In Oregon, a lack of mental health and addiction resources has also helped fuel the crisis. The state has some of the highest rates of homelessness and drug addiction in the nation, and ranks near the bottom in access to treatment, federal data shows.

The court is expected to decide the case by the end of June.

Rush reported from Portland, Oregon.

Copyright 2024 The Associated Press. All rights reserved.

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The Supreme Court Takes Up Homelessness

Can cities make it illegal to live on the streets.

This transcript was created using speech recognition software. While it has been reviewed by human transcribers, it may contain errors. Please review the episode audio before quoting from this transcript and email [email protected] with any questions.

From “The New York Times,” I’m Katrin Bennhold. This is “The Daily.”

This morning, we’re taking a much closer look at homelessness in the United States as it reaches a level not seen in the modern era. California —

As the number of homeless people has surged in the US —

More than 653,000, a 12 percent population increase since last year.

The debate over homeless encampments across the country has intensified.

It is not humane to let people live on our streets in tents, use drugs. We are not standing for it anymore.

People have had it. They’re fed up. I’m fed up. People want to see these tents and encampments removed in a compassionate, thoughtful way. And we agree.

With public officials saying they need more tools to address the crisis.

We move from block to block. And every block they say, can’t be here, can’t be here, can’t be here. I don’t know where we’re supposed to go, you know?

And homeless people and their advocates saying those tools are intended to unfairly punish them.

They come and they sweep and they take everything from me, and I can’t get out of the hole I’m in because they keep putting me back in square one.

That debate is now reaching the Supreme Court, which is about to hear arguments in the most significant case on homelessness in decades, about whether cities can make it illegal to be homeless. My colleague Abbie VanSickle on the backstory of that case and its far-reaching implications for cities across the US.

[THEME MUSIC]

It’s Friday, April 19.

So Abbie, you’ve been reporting on this case that has been making waves, Grants Pass versus Johnson, which the Supreme Court is taking up next week. What’s this case about?

So this case is about a small town in Oregon where three homeless people sued the city after they received tickets for sleeping and camping outside. And this case is the latest case that shows this growing tension, especially in states in the West, between people who are homeless and cities who are trying to figure out what to do about this. These cities have seen a sharp increase in homeless encampments in public spaces, especially with people on sidewalks and in parks. And they’ve raised questions about public drug use and other safety issues in these spaces.

And so the question before the justices is really how far a city can go to police homelessness. Can city officials and police use local laws to ban people from laying down outside and sleeping in a public space? Can a city essentially make it illegal to be homeless?

So three homeless people sued the city of Grants Pass, saying it’s not illegal to be homeless, and therefore it’s not illegal to sleep in a public space.

Yes, that’s right. And they weren’t the first people to make this argument. The issue actually started years ago with a case about 500 miles to the East, in Boise, Idaho. And in that case, which is called Martin v. Boise, this man, Robert Martin, who is homeless in Boise, he was charged with a misdemeanor for sleeping in some bushes. And the city of Boise had laws on the books to prohibit public camping.

And Robert Martin and a group of other people who are homeless in the city, they sued the city. And they claimed that the city’s laws violated the Eighth Amendment’s prohibition on cruel and unusual punishment.

And what makes it cruel and unusual?

So their argument was that the city did not have enough sufficient shelter beds for everyone who was homeless in the city. And so they were forced to sleep outside. They said, we have no place to go and that an essential human need is to sleep and we want to be able to lay down on the sidewalk or in an alley or someplace to rest and that their local laws were a violation of Robert Martin and the others’ constitutional rights, that the city is violating the Eighth Amendment by criminalizing the human need to sleep.

And the courts who heard the case agreed with that argument. The courts ruled that the city had violated the Constitution and that the city could not punish people for being involuntarily homeless. And what that meant, the court laid out, is that someone is involuntarily homeless if a city does not have enough adequate shelter beds for the number of people who are homeless in the city.

It does seem like a very important distinction. They’re saying, basically, if you have nowhere else to go, you can’t be punished for sleeping on the street.

Right. That’s what the court was saying in the Martin v. Boise case. And the city of Boise then appealed the case. They asked the Supreme Court to step in and take it on. But the Supreme Court declined to hear the case. So since then, the Martin v. Boise case controls all over the Western parts of the US in what’s called the Ninth Circuit, which includes Oregon where the Grants Pass case originated.

OK. So tell us about Grants Pass, this city at the center of the case and now in front of the Supreme Court. What’s the story there?

Grants Pass is a town in rural Southwestern Oregon. It’s a town of about 38,000 people. It’s a former timber town that now really relies a lot on tourists to go rafting through the river and go wine tasting in the countryside. And it’s a pretty conservative town.

When I did interviews, people talked about having a very strong libertarian streak. And when I talked with people in the town, people said when they were growing up there, it was very rare to see someone who was homeless. It just was not an issue that was talked a lot about in the community. But it did become a big issue about 10 years ago.

People in the community started to get worried about what they saw as an increase in the number of homeless people that they were noticing around town. And it’s unclear whether the problem was growing or whether local officials and residents were worried that it might, whether they were fearing that it might.

But in any case, in 2013, the city council decided to start stepping up enforcement of local ordinances that did things like outlaw camping in public parks or sleeping outside, this series of overlapping local laws that would make it impossible for people to sleep in public spaces in Grants Pass. And at one meeting, one of the former city council members, she said, “the point is to make it uncomfortable enough for them in our city so they will want to move on down the road.”

So it sounds like, at least in Grants Pass, that this is not really about reducing homelessness. It’s about reducing the number of visible homeless people in the town.

Well, I would say that city officials and many local residents would say that the homeless encampments are actually creating real concerns about public safety, that it’s actually creating all kinds of issues for everyone else who lives in Grants Pass. And there are drug issues and mental health issues, and that this is actually bringing a lot of chaos to the city.

OK. So in order to deal with these concerns, you said that they decided to start enforcing these local measures. What does that actually look like on the ground?

So police started handing out tickets in Grants Pass. These were civil tickets, where people would get fines. And if police noticed people doing this enough times, then they could issue them a trespass from a park. And then that would give — for a certain number of days, somebody would be banned from the park. And if police caught them in the park before that time period was up, then the person could face criminal time. They could go to jail.

And homeless people started racking up fines, hundreds of dollars of fines. I talked to a lot of people who were camping in the parks who had racked up these fines over the years. And each one would have multiple tickets they had no way to pay. I talked to people who tried to challenge the tickets, and they had to leave their belongings back in the park. And they would come back to find someone had taken their stuff or their things had been impounded.

So it just seemed to be this cycle that actually was entrenching people more into homelessness. And yet at the same time, none of these people had left Grants Pass.

So they did make it very uncomfortable for homeless people, but it doesn’t seem to be working. People are not leaving.

Right. People are not leaving. And these tickets and fines, it’s something that people have been dealing with for years in Grants Pass. But in 2018, the Martin v. Boise case happens. And not long after that, a group of people in Grants Pass challenged these ordinances, and they used the Boise case to make their argument that just like in Boise, Grants Pass was punishing people for being involuntarily homeless, that this overlapping group of local ordinances in Grants Pass had made it so there is nowhere to put a pillow and blanket on the ground and sleep without being in some kind of violation of a rule. And this group of local homeless people make the argument that everyone in Grants Pass who is homeless is involuntarily homeless.

And you told us earlier that it was basically the lack of available shelter that makes a homeless person involuntarily homeless. So is there a homeless shelter in Grants Pass?

Well, it sort of depends on the standard that you’re using. So there is no public low-barrier shelter that is easy for somebody to just walk in and stay for a night if they need someplace to go. Grants Pass does not have a shelter like that.

There is one shelter in Grants Pass, but it’s a religious shelter, and there are lots of restrictions. I spoke with the head of the shelter who explained the purpose is really to get people back into the workforce. And so they have a 30-day program that’s really designed for that purpose.

And as part of that, people can’t have pets. People are not allowed to smoke. They’re required to attend Christian religious services. And some of the people who I interviewed, who had chronic mental health and physical disabilities, said that they had been turned away or weren’t able to stay there because of the level of needs that they have. And so if you come in with any kind of issue like that, it can be a problem.

That’s a very long list of restrictions. And of course, people are homeless for a lot of very different reasons. It sounds like a lot of these reasons might actually disqualify them from this particular shelter. So when they say they have nowhere else to go, if they’re in Grants Pass, they kind of have a point.

So that’s what the court decided. In 2022, when the courts heard this case, they agreed with the homeless plaintiffs that there’s no low-barrier shelter in Grants Pass and that the religious shelter did not meet the court’s requirements. But the city, who are actually now represented by the same lawyers who argued for Boise, keeps appealing the case. And they appeal up to the Ninth Circuit just as in the Boise case, and the judges there find in favor of the homeless plaintiffs, and they find that Grants Pass’s ordinances are so restrictive that there is no place where someone can lay down and sleep in Grants Pass and that therefore the city has violated the Eighth Amendment and they cannot enforce these ordinances in the way that they have been for years.

So at that point, the court upholds the Boise precedent, and we’re where we were when it all started. But as we know, that’s not the end of the story. Because this case stays in the court system. What happened?

So by this point, the homelessness problem is really exploding throughout the Western part of the US with more visible encampments, and it really becomes a politically divisive issue. And leaders across the political spectrum point to Boise as a root cause of the problem. So when Grants Pass comes along, people saw that case as a way potentially to undo Boise if only they could get it before the Supreme Court.

[MUSIC PLAYING]

We’ll be right back.

Abbie, you just told us that as homeless numbers went up and these homeless encampments really started spreading, it’s no longer just conservatives who want the Supreme Court to revisit the Boise ruling. It’s liberals too.

That’s right. So there’s a really broad group of people who all started pushing for the Supreme Court to take up the Grants Pass case. And they did this by filing briefs to the Supreme Court, laying out their reasoning. And it’s everyone from the liberal governor of California and many progressive liberal cities to some of the most conservative legal groups. And they disagree about their reasoning, but they all are asking the court to clarify how to interpret the Boise decision.

They are saying, essentially, that the Boise decision has been understood in different ways in all different parts of the West and that that is causing confusion and creating all sorts of problems. And they’re blaming that on the Boise case.

It’s interesting, because after everything you told us about these very extreme measures, really, that the city of Grants Pass took against homeless people, it is surprising that these liberal bastions that you’re mentioning are siding with the town in this case.

Just to be clear, they are not saying that they support necessarily the way that Grants Pass or Boise had enforced their laws. But they are saying that the court rulings have tied their hands with this ambiguous decision on how to act.

And what exactly is so ambiguous about the Boise decision? Which if I remember correctly, simply said that if someone is involuntarily homeless, if they’re on the streets because there’s no adequate shelter space available, they can’t be punished for that.

Yeah. So there are a couple of things that are common threads in the cities and the groups that are asking for clarity from the court. And the first thing is that they’re saying, what is adequate shelter? That every homeless person situation is different, so what are cities or places required to provide for people who are homeless? What is the standard that they need to meet?

In order not to sleep on the street.

That’s right. So if the standard is that a city has to have enough beds for everyone who is homeless but certain kinds of shelters or beds wouldn’t qualify, then what are the rules around that? And the second thing is that they’re asking for clarity around what “involuntarily homeless” means. And so in the Boise decision, that meant that someone is involuntarily homeless if there is not enough bed space for them to go to.

But a lot of cities are saying, what about people who don’t want to go into a shelter even if there’s a shelter bed available? If they have a pet or if they are a smoker or if something might prohibit them from going to a shelter, how is the city supposed to weigh that and at what point would they cross a line for the court?

It’s almost a philosophical question. Like, if somebody doesn’t want to be in a shelter, are they still allowed to sleep in a public space?

Yeah. I mean, these are complicated questions that go beyond the Eighth Amendment argument but that a lot of the organizations that have reached out to the court through these friend of the court briefs are asking.

OK. I can see that the unifying element here is that in all these briefs various people from across the spectrum are saying, hello, Supreme Court. We basically need some clarity here. Give us some clarity.

The question that I have is why did the Supreme Court agree to weigh in on Grants Pass after declining to take up Boise?

Well, it’s not possible for us to say for certain because the Supreme Court does not give reasons why it has agreed to hear or to not hear a case. They get thousands of cases a year, and they take up just a few of those, and their deliberations are secret. But we can point to a few things.

One is that the makeup of the court has changed. The court has gained conservative justices in the last few years. This court has not been shy about taking up hot button issues across the spectrum of American society. In this case, the court hasn’t heard a major homelessness case like this.

But I would really point to the sheer number and the range of the people who are petitioning the court to take a look at this case. These are major players in the country who are asking the court for guidance, and the Supreme Court does weigh in on issues of national importance. And the people who are asking for help clearly believe that this is one of those issues.

So let’s start digging into the actual arguments. And maybe let’s start with the city of Grants Pass. What are the central arguments that they’re expected to make before the Supreme Court?

So the city’s arguments turn on this narrow legal issue of whether the Eighth Amendment applies or doesn’t. And they say that it doesn’t. But I actually think that in some ways, that’s not the most helpful way to understanding what Grants Pass is arguing.

What is really at the heart of their argument is that if the court upholds Grants Pass and Boise, that they are tying the hands of Grants Pass and hundreds of other towns and cities to actually act to solve and respond to homelessness. And by that, I mean to solve issues of people camping in the parks but also more broadly of public safety issues, of being able to address problems as they arise in a fluid and flexible way in the varied ways that they’re going to show up in all these different places.

And their argument is if the court accepts the Grants Pass and Boise holdings, that they will be constitutionalizing or freezing in place and limiting all of these governments from acting.

Right. This is essentially the argument being repeated again and again in those briefs that you mentioned earlier, that unless the Supreme Court overturns these decisions, it’s almost impossible for these cities to get the encampments under control.

Yes, that’s right. And they also argue they need to have flexibility in dealing actually with people who are homeless and being able to figure out using a local ordinance to try to convince someone to go to treatment, that they say they need carrots and sticks. They need to be able to use every tool that they can to be able to try to solve this problem.

And how do we make sense of that argument when Grants Pass is clearly not using that many tools to deal with homeless people? For example, it didn’t have shelters, as you mentioned.

So the city’s argument is that this just should not be an Eighth Amendment issue, that this is the wrong way to think about this case, that issues around homelessness and how a city handles it is a policy question. So things like shelter beds or the way that the city is handling their ordinances should really be left up to policymakers and city officials, not to this really broad constitutional argument. And so therefore, the city is likely to focus their argument entirely on this very narrow question.

And how does the other side counter this argument?

The homeless plaintiffs are going to argue that there’s nothing in the lower courts’ decisions that say that cities can’t enforce their laws that, they can’t stop people from littering, that they can’t stop drug use, that they can’t clear encampments if there becomes public safety problems. They’re just saying that a city cannot not provide shelter and then make it illegal for people to lay down and sleep.

So both sides are saying that a city should be able to take action when there’s public disorder as a result of these homeless encampments. But they’re pointing at each other and saying, the way you want to handle homelessness is wrong.

I think everyone in this case agrees that homelessness and the increase in homelessness is bad for everyone. It’s bad for people who are camping in the park. It is bad for the community, that nobody is saying that the current situation is tenable. Everyone is saying there need to be solutions. We need to be able to figure out what to do about homelessness and how to care for people who are homeless.

How do we wrestle with all these problems? It’s just that the way that they think about it couldn’t be further apart.

And what can you tell me about how the Supreme Court is actually expected to rule in this?

There are a number of ways that the justices could decide on this case. They could take a really narrow approach and just focus on Grants Pass and the arguments about those local ordinances. I think that’s somewhat unlikely because they’ve decided to take up this case of national importance.

A ruling in favor of the homeless plaintiffs would mean that they’ve accepted this Eighth Amendment argument, that you cannot criminalize being homeless. And a ruling for the city, every legal expert I’ve talked to has said that would mean an end to Boise and that it would break apart the current state that we’ve been living in for these last several years.

I’m struck by how much this case and our conversation has been about policing homelessness rather than actually addressing the root causes of homelessness. We’re not really talking about, say, the right to shelter or the right to treatment for people who are mentally ill and sleeping on the streets as a result, which is quite a big proportion. And at the end of the day, whatever way the ruling goes, it will be about the visibility of homelessness and not the root causes.

Yeah, I think that’s right. That’s really what’s looming in the background of this case is what impact is it going to have. Will it make things better or worse and for who? And these court cases have really become this talking point for cities and for their leaders, blaming the spike in encampments and the visibility of homelessness on these court decisions. But homelessness, everyone acknowledges, is such a complicated issue.

People have told me in interviews for the story, they’ve blamed increases in homelessness on everything from the pandemic to forest fires to skyrocketing housing costs in the West Coast, and that the role that Boise and now Grants Pass play in this has always been a little hard to pin down. And if the Supreme Court overturns those cases, then we’ll really see whether they were the obstacle that political leaders said that they were. And if these cases fall, it remains to be seen whether cities do try to find all these creative solutions with housing and services to try to help people who are homeless or whether they once again fall back on just sending people to jail.

Abbie, thank you very much.

Thank you so much.

Here’s what else you need to know today. Early on Friday, Israel attacked a military base in Central Iran. The explosion came less than a week after Iran’s attack on Israel last weekend and was part of a cycle of retaliation that has brought the shadow war between the two countries out in the open. The scale and method of Friday’s attack remained unclear, and the initial reaction in both Israel and Iran was to downplay its significance. World leaders have urged both sides to exercise restraint in order to avoid sparking a broader war in the region.

And 12 New Yorkers have been selected to decide Donald Trump’s criminal trial in Manhattan, clearing the way for opening statements to begin as early as Monday. Seven new jurors were added in short order on Thursday afternoon, hours after two others who had already been picked were abruptly excused.

Trump is accused of falsifying business records to cover up a hush money payment made to a porn star during his 2016 presidential campaign. If the jury convicts him, he faces up to four years in prison. Finally —

This is the New York Police Department.

The New York Police Department said it took at least 108 protesters into custody at Columbia University after University officials called the police to respond to a pro-Palestinian demonstration and dismantle a tent encampment.

We’re supporting Palestine. We’re supporting Palestine. 1, 2, 3, 4.

The crackdown prompted more students to vow that demonstrations would continue, expressing outrage at both the roundup of the student protesters and the plight of Palestinians in Gaza.

Free, free Palestine.

Today’s episode was produced by Olivia Natt, Stella Tan, and Eric Krupke with help from Rachelle Bonja. It was edited by Liz Baylen, fact checked by Susan Lee, contains original music by Will Reid Pat McCusker Dan Powell and Diane Wong and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsverk of Wonderly.

That’s it for “The Daily.” I’m Katrin Bennhold. See you on Monday.

• April 26, 2024   •   21:50 Harvey Weinstein Conviction Thrown Out
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• April 24, 2024   •   32:18 Is $60 Billion Enough to Save Ukraine?
• April 23, 2024   •   30:30 A Salacious Conspiracy or Just 34 Pieces of Paper?
• April 22, 2024   •   24:30 The Evolving Danger of the New Bird Flu
• April 19, 2024   •   30:42 The Supreme Court Takes Up Homelessness
• April 18, 2024   •   30:07 The Opening Days of Trump’s First Criminal Trial
• April 17, 2024   •   24:52 Are ‘Forever Chemicals’ a Forever Problem?
• April 16, 2024   •   29:29 A.I.’s Original Sin
• April 15, 2024   •   24:07 Iran’s Unprecedented Attack on Israel
• April 14, 2024   •   46:17 The Sunday Read: ‘What I Saw Working at The National Enquirer During Donald Trump’s Rise’
• April 12, 2024   •   34:23 How One Family Lost $900,000 in a Timeshare Scam

Hosted by Katrin Bennhold

Featuring Abbie VanSickle

Produced by Olivia Natt ,  Stella Tan ,  Eric Krupke and Rachelle Bonja

Edited by Liz O. Baylen

Original music by Will Reid ,  Pat McCusker ,  Dan Powell and Diane Wong

Engineered by Chris Wood

Listen and follow The Daily Apple Podcasts | Spotify | Amazon Music

Debates over homeless encampments in the United States have intensified as their number has surged. To tackle the problem, some cities have enforced bans on public camping.

As the Supreme Court prepares to hear arguments about whether such actions are legal, Abbie VanSickle, who covers the court for The Times, discusses the case and its far-reaching implications.

On today’s episode

Abbie VanSickle , a Supreme Court correspondent for The New York Times.

Background reading

A ruling in the case could help determine how states, particularly those in the West, grapple with a rising homelessness crisis .

In a rare alliance, Democrats and Republicans are seeking legal power to clear homeless camps .

There are a lot of ways to listen to The Daily. Here’s how.

We aim to make transcripts available the next workday after an episode’s publication. You can find them at the top of the page.

Fact-checking by Susan Lee .

The Daily is made by Rachel Quester, Lynsea Garrison, Clare Toeniskoetter, Paige Cowett, Michael Simon Johnson, Brad Fisher, Chris Wood, Jessica Cheung, Stella Tan, Alexandra Leigh Young, Lisa Chow, Eric Krupke, Marc Georges, Luke Vander Ploeg, M.J. Davis Lin, Dan Powell, Sydney Harper, Mike Benoist, Liz O. Baylen, Asthaa Chaturvedi, Rachelle Bonja, Diana Nguyen, Marion Lozano, Corey Schreppel, Rob Szypko, Elisheba Ittoop, Mooj Zadie, Patricia Willens, Rowan Niemisto, Jody Becker, Rikki Novetsky, John Ketchum, Nina Feldman, Will Reid, Carlos Prieto, Ben Calhoun, Susan Lee, Lexie Diao, Mary Wilson, Alex Stern, Dan Farrell, Sophia Lanman, Shannon Lin, Diane Wong, Devon Taylor, Alyssa Moxley, Summer Thomad, Olivia Natt, Daniel Ramirez and Brendan Klinkenberg.

Our theme music is by Jim Brunberg and Ben Landsverk of Wonderly. Special thanks to Sam Dolnick, Paula Szuchman, Lisa Tobin, Larissa Anderson, Julia Simon, Sofia Milan, Mahima Chablani, Elizabeth Davis-Moorer, Jeffrey Miranda, Renan Borelli, Maddy Masiello, Isabella Anderson and Nina Lassam.

Katrin Bennhold is the Berlin bureau chief. A former Nieman fellow at Harvard University, she previously reported from London and Paris, covering a range of topics from the rise of populism to gender. More about Katrin Bennhold

Abbie VanSickle covers the United States Supreme Court for The Times. She is a lawyer and has an extensive background in investigative reporting. More about Abbie VanSickle

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Can California Cities Clear Homeless Camps? Depends on Supreme Court Ruling

Friends Read Free

Supreme Court Justices on April 22 heard oral arguments in a case expected to have a profound impact on how local governments address homeless encampments—particularly in California and the West, where the crisis has for years been in a state of escalating emergency.

According to the Department of Housing and Urban Development, California’s homeless population swelled to 181,399 in 2023, 68 percent of whom are unsheltered.

Nearly half of all unsheltered Americans live in California.

At issue in Grants Pass, Oregon v. Gloria Johnson is whether laws regulating public dwelling or camping violate the Eighth Amendment’s ban on “cruel and unusual” punishment.

The case arrives before the highest court after a series of lawsuits brought against municipalities by homeless plaintiffs made a constitutional issue of the delicate balance governments face—between protecting the rights of homeless people, and protecting public safety and health.

Local governments are hoping a decision will clarify whether they can break up encampments or otherwise enforce laws regulating public spaces when they don’t have enough shelter beds for their entire homeless population.

Grants Pass, a tiny city in Oregon, is seeking to overturn a Ninth Circuit Court of Appeals ruling that struck down its anti-camping ordinances, preventing local law enforcement from citing people for violations.

That decision followed a 2018 Ninth Circuit ruling, in Robert Martin v. City of Boise, that found penalizing people for sitting or sleeping outside when they don’t have access to shelter violated the Eighth Amendment.

Homeless residents in Grants Pass challenged the city’s ordinances, and the lower court upheld the ruling. Now, Grants Pass is asking the Supreme Court to overturn it.

Oral Arguments

“This court should reverse and end the Ninth Circuit’s failed experiment, which has fueled the spread of encampments while harming those it purports to protect,” Ms Evangelis said.

Justice Sonya Sotomayor pushed back, suggesting a Grants Pass ordinance that prohibits people from covering themselves with a blanket while sleeping outside was a de facto criminalization of homeless people.

“If a stargazer wants to take a blanket or a sleeping bag out at night to watch the stars and falls asleep, you don’t arrest them. You don’t arrest babies who have blankets over them. You don’t arrest people who are sleeping on the beach, as I tend to do if I’ve been there a while. You only arrest people who don’t have a second home. Is that correct?” Justice Sotomayor asked.

Ms. Evangelis responded that the laws are generally applicable to everyone, and there is nothing in the law criminalizing homelessness.

Kelsi B. Corkran, an attorney for the respondents, argued the ordinances unjustly criminalize homeless people for activities non-homeless people are permitted, making it impossible to live in the city without facing endless fines and jail time.

The city, she said, is left with “an abundance” of tools to address homelessness, like restricting when and where homeless people sleep, banning tents and clearing encampments, enforcing sleeping bans when people decline shelter, or enforcing existing laws against a whole host of public behaviors and activities.

This appears less clear in practice, as described in amicus curiae by frustrated municipalities who say their hands have been tied from enforcing most such laws, as a result of ambiguities in the two cases.

Status versus Conduct

In 1962, the Supreme Court ruled in Robinson v. California that it was unconstitutional for California to punish an individual for the status of being addicted to narcotics. Challengers in the current case argue that anti-camping ordinances similarly punish people for the involuntary status of being homeless.

Justice Elena Kagan compared criminalizing sleeping in public to criminalizing breathing in public, while Justice Jackson said, “it seems both cruel and unusual to punish people for acts that constitute basic human needs.”

But where Justice Kagan contended homelessness is a status, “the status of not having a home,” other justices took issue with that interpretation.

Justice Clarence Thomas noted the underlying law in Robinson penalized both the use of drugs and being addicted to them, and asked, “is there a crime here for being homeless?” to which Ms. Evangelis replied there was not.

Chief Justice Roberts, meanwhile, pointed to the fluidity of such a status, asking whether a person would be considered homeless if they found shelter after being homeless for a week.

Ms. Evangelis argued challengers were attempting to collapse the difference between status and conduct, where they had been clearly delineated in Robinson.

Many municipalities have noted that, since Martin v. Boise, they have been prohibited from clearing encampments when they don’t have “adequate” shelter to accommodate their whole population of homeless people. Unresolved questions – about what constitutes “adequate,” and whether people can be voluntarily homeless – have left them in a maddening limbo.

Justices Barrett and Gorsuch prodded the idea of sleeping outside as an involuntary human need, asking if other activities, like building a fire, cooking outdoors, stealing food or urinating in public would be subject to the same constitutionality.

“The Eighth Amendment really doesn’t give us any answers to what cities can and can’t prohibit. It’s really administratively impossible for cities on the ground, as well as for courts, to administer,” Ms. Evangelis said.

Justice Kavanaugh and others suggested that, given those “line-drawing problems,” if a state already allows claims that an illegal action is justified due to a threat of harm– then that should suffice, without the need for federal overreach into local municipal affairs.

“Before constitutionalizing an area or extending a constitutional precedent … we usually think about whether state law, local law already… achieves those purposes so that the federal courts aren’t micromanaging homeless policy,” said Mr. Kavanaugh.

Justice Jackson noted Oregon had already adopted a law based on the Ninth Circuit’s ruling in Martin, which the city is now subject to, and questioned whether the high court should be considering the Eighth Amendment question at all.

While justices on the liberal side of the court, which has a conservative 6-3 supermajority, appeared more sympathetic to homeless advocates’ arguments, and conservative justices appeared sympathetic to the plight of municipalities, there was nuanced overlap, and a shared skepticism for further entangling the court in questions better determined at the local level.

This could, observers say, point to a middle ground, in which the court frees cities to enforce their laws, while enshrining protection against the criminalization of involuntary homelessness.

What Does This Mean for Cities?

Some, like Orange County, have found their way around this by obtaining a District Court’s consent decree to sidestep what it characterizes as “the unworkable Boise and Grants Pass framework.”

Others make new laws. San Diego last year came up with a new “Unsafe Camping” ordinance, formulated to comply with both Martin and the city’s own prior legal settlements.

But court orders have prevented several cities in California– including Sacramento and San Francisco, from enforcing existing codes to clear encampments.

For example, a 2022 injunction filed by the San Francisco Homeless Coalition is preventing the city from enforcing related ordinances, with exceptions to clean or clear encampments if people are offered and refuse housing.

In Los Angeles, there is a similar status quo, in which the city conducts sanitation sweeps without clearing encampments, or clears encampments while offering housing– as in the mayor’s Inside Safe program.

In an amicus brief, the city tried to walk the line between not criminalizing homelessness but maintaining an ability to regulate public spaces. But leaders are clearly infuriated by what they see as the Ninth Circuit’s injecting “an insupportable lack of clarity into the process of regulating public spaces in a constitutional manner,” and infringing on their ability to regulate public health and safety.

Los Angeles once had a citywide ordinance banning dwelling in the public right of way. It was invalidated 18 years ago by the Ninth Circuit, for violating the Eighth Amendment. The city settled the case, and says a negotiated enforcement plan has since effectively legalized public dwelling during overnight hours.

“The city has been grappling with the ramifications of that settlement (i.e., the strain of having a large population of persons experiencing homelessness dwelling on shared public spaces) for 18 years,” it wrote in its brief.

Then “sweeping, ambiguous and ill-defined language” in Martin left public officials and lower courts struggling to comply, Los Angeles claims.

Orange County put it this way: “The Ninth Circuit’s opinion in Boise is ill-considered, ambiguous, and, speaking from experience, entirely unworkable.”

A footnote in the Martin v. Boise decision has led to chaos and “countless” disputes between County attorneys and homeless advocates as to what constitutes “adequate shelter,” Orange County wrote.

Grants Pass took that decision further, prohibiting local governments from enforcing anti-camping laws unless they can demonstrate the availability of a shelter bed for every homeless individual within their borders, and failing to consider some may be voluntarily homeless due to mental illness or otherwise service resistant.

Los Angeles says it still doesn’t know whether it can just offer or require people to accept shelter, or clear the public right of way as shelter becomes available, or whether there is a constitutional requirement that there first be enough shelter for everyone.

Orange County credits the consent decree, authorizing it to work around the Boise and Grants Pass framework, for making it the only county in California to see a reduction in homelessness in 2022.

How do governments determine in real time if there are enough shelter beds for current homeless populations? What do they do if people are shelter resistant, suffering from mental illness that prevents them from accepting multiple offers? Is it the state, city or county that determines the number of beds that will allow sheriffs to enforce the law?

These are just some of the questions municipalities are grappling with.

Law enforcement agencies, meanwhile, argue the effect has been disastrous, leading to a widespread proliferation of homeless encampments across the Ninth Circuit’s Western states, which in turn has driven up police call volumes, crime rates and drug use, while decreasing livability in many cities.

Homeless Veterans

Permitting localities to “punish survival – sleeping outside with adequate coverings”– would violate decades of precedent prohibiting punishment of status, and “eviscerate the minimal protections unhoused veterans have against degrading treatment while sleeping outside and in public spaces,” she wrote in an amicus brief in support of Johnson.

In a conversation with The Epoch Times, Ms. Patel said the issue before the court is in fact quite narrow, and localities are already permitted to enforce their ordinances. What is lacking, she said, is political will.

“The court’s job here is to say, under the Eighth Amendment, it is cruel and usual punishment for someone to be fined or cited or jailed if they are sleeping [outside] – that I think is a basic human principle we should all agree with, right?”

If every jurisdiction had a “banishment ordinance,” Ms. Patel said, where would people go?

“That’s the hard question, and Grants Pass and other jurisdictions look at these laws as ways to incentivize folks to take housing. Whether that’s actually true or not, I can’t say. But … we do know, especially if we think about the veteran context, that if you have the housing, you make it available, and have a range of options, people do take it.”

Deon Joseph, a police officer in L.A. County who has worked in the Skid Row area for more than two decades, said he hoped a decision will help the city get back to a balance that’s both humane and has some level of accountability for the homeless population.

“There’s not enough shelters. We recognize that,” Mr. Joseph told The Epoch Times. He said going back to a policy in which tents are allowed to be up at night, but are packed away from 6 a.m. to 9 p.m. daily, would allow police to maintain some order.

“We saw that actually worked, that had an impact, and it also reduced homelessness, because more people chose programs than the streets” he said.

Such was more humane than letting camps proliferate “when you know people are overdosing, you know women are being human trafficked, you know people are dying and suffering. And the quality of life is so poor,” he said.

Mr. Joseph said he doesn’t want to criminalize someone for being homeless. “But I cannot ignore criminal fallout that exists when we allow encampments to thrive.”

Lawmakers appear optimistic they’ll get clarity and some relief from the court’s forthcoming decision.

But even if cities are given more latitude to enforce their own laws, observers say it won’t solve the untreated addiction and mental illness crises that are fueling homelessness. Nor will it force the state to reckon with failed policies and an insistence on million-dollar condos and government-sponsored meth pipes as the best solution.

Some are preparing accordingly.

Shortly after the Supreme Court hearing, San Francisco Supervisor Matt Dorsey submitted a legislative drafting request to his City Attorney’s Office, proposing a pilot program that would establish “Right to Recovery” enforcement priority zones. Such wouldn’t enhance criminal penalties for drug possession, he said, but designate certain areas, near sites where people in recovery are at elevated risk of relapse and overdose, as priorities for enforcement.

The court is expected to issue an opinion in June.

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Law Week 2024: Supreme Court of Victoria Tour for Disability Advocates

Disability rights advocates with lived experience of disability are invited to join Villamanta at the Supreme Court of Victoria.

Date and time

Supreme Court of Victoria

About this event

Villamanta Disability Rights Legal Service invites disability advocates with lived experience of disability to join us for a day at the Supreme Court of Victoria.

You will have the opportunity to tour the Supreme Court and learn about accessibility at the Court.

After the tour, guest speakers from the Supreme Court’s disability liaison, facilities and security teams will discuss the resources and assistance which the Court provides for people with disabilities.

Finally, you will be able to attend a hearing to observe how the Court operates.

This event is an excellent opportunity to learn more about the Supreme Court of Victoria and discuss access to justice issues with Court staff.

There will be an opportunity to ask questions, so please come prepared with anything you would like to ask!

Please let us know if you have any questions or accessibility requirements.

Frequently asked questions

No, they do not.

We totally understand. Two Villamanta staff members will be attending to make sure everything runs smoothly, and that everyone can participate in a way that is comfortable for them. Just let us know you'd like a bit of extra support, and we will be in contact.

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TikTok has promised to sue over the potential US ban. What’s the legal outlook?

NEW YORK (AP) —  Legislation  forcing TikTok’s parent company  to sell the video-sharing platform  or face a ban in the U.S. received President Joe Biden’s  official signoff  Wednesday. But the newly minted law could be in for an uphill battle in court.

Critics of the  sell-or-be-banned ultimatum  argue it violates TikTok users’ First Amendment rights. The app’s China-based owner, ByteDance, has already promised to sue, calling the measure unconstitutional.

But a court challenge’s success is not guaranteed. The law’s opponents, which include advocacy organizations like the American Civil Liberties Union, maintain that the government hasn’t come close to justifying banning TikTok, while others say national-security claims could still prevail.

For years, lawmakers on both sides of the aisle have expressed concerns that Chinese authorities could force ByteDance to hand over U.S. user data, or influence Americans by suppressing or promoting certain content on TikTok. The U.S. has yet to provide public evidence to support those claims, but political pressures have piled up regardless.

If upheld, legal experts also stress that the law could set a precedent carrying wider ramifications for digital media in the U.S.

Here’s what you need to know.

IS A TIKTOK BAN UNCONSTITUTIONAL?

That’s the central question. TikTok and opponents of the law have argued that a ban would violate First Amendment rights of the social media platform’s 170 million U.S. users.

Patrick Toomey, deputy director of the ACLU’s National Security Project, said a TikTok ban would “stifle free expression and restrict public access” to a platform that has become central source for information sharing.

Among key questions will be whether the legislation interferes with the overall content of speech on TikTok, notes Elettra Bietti, an assistant professor of law and computer science at Northeastern University, because content-based restrictions meet a higher level of scrutiny.

ByteDance has yet to officially file a lawsuit, but Bietti said she expects the company’s challenge to primarily focus on whether a ban infringes on these wider free-speech rights. Additional litigation involving TikTok’s “commercial actors,” such as businesses and influencers who make their living on the platform, may also arise, she added.

COULD TIKTOK SUCCESSFULLY PREVENT THE BAN IN COURT?

TikTok is expressing confidence about the prospects of its planned challenge.

“Rest assured, we aren’t going anywhere,” TikTok CEO Shou Chew said in a video response  posted to X  Wednesday. “The facts and the Constitution are on our side, and we expect to prevail again.”

Toomey also said that he is optimistic about the possibility of TikTok being able to block the measure in court, noting that both users and the company “have extremely strong” First Amendment claims.

“Many of the calls to completely ban TikTok in the U.S. are about scoring political points and rooted in anti-China sentiment,” Toomey added. “And to date, these steps to ban TikTok had not been remotely supported by concrete public evidence.”

Still, the future of any litigation is hard to predict, especially for this kind of case. And from a legal perspective, it can be difficult to cite political motivations, even if they’re well-documented, as grounds to invalidate a law.

The battle could also string along for some time, with the potential for appeals that could go all the way to the Supreme Court, which would likely uphold the law due to its current composition, said Gus Hurwitz, a senior fellow at the University of Pennsylvania’s Carey Law School.

HOW MIGHT THE GOVERNMENT RESPOND TO THE CHALLENGE?

TikTok’s legal challenge won’t go on without a fight. The government will probably respond with national-security claims, which were already cited prominently as the legislation made its way through Congress.

Toomey maintains that the government hasn’t met the high bar required to prove imminent national-security risks, but some other legal experts note that it’s still a strong card to play.

“One of the unfortunate and really frustrating things about national-security legislation (is that) it tends to be a trump card,” Hurwitz said. “Once national-security issues come up, they’re going to carry the day either successfully or not.”

Hurwitz added that he thinks there are legitimate national-security arguments that could be brought up here. National security can be argued because it’s a federal measure, he noted. That sets this scenario apart from previously unsuccessful state-level legislation seeking to ban TikTok,  such as in Montana .

But national-security arguments are also vulnerable to questioning as to why TikTok is getting specific scrutiny.

“Personally, I believe that what TikTok does isn’t that different from other companies that are U.S.-based,” Bietti said, pointing to tech giants ranging from Google to Amazon. “The question is, ‘Why ban TikTok and not the activities and the surveillance carried out by other companies in the United States?’”

IF THE LAW IS UPHELD, COULD THERE BE WIDER RAMIFICATIONS?

Still, legal experts note that there could be repercussions beyond TikTok in the future.

The measure was passed as part of a larger $95 billion package that provides aid to Ukraine and Israel. The package also includes a provision that makes it illegal for data brokers to sell or rent “personally identifiable sensitive data” to North Korea, China, Russia, Iran or entities in those countries.

That has encountered some pushback, including from the ACLU, which says the language is written too broadly and could sweep in journalists and others who publish personal information.

“There’s real reason to be concerned that the use of this law will not stop with TikTok,” Toomey said. “Looking at that point and the bigger picture, banning TikTok or forcing its sale would be a devastating blow to the U.S. government’s decades of work promoting an open and secure global internet.”

Copyright 2024 The Associated Press. All rights reserved.

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