Supreme Court tackles homelessness crisis. What that means for U.S. West

WASHINGTON – The Supreme Court is poised to hear its most important case ever on the homelessness crisis, and to decide whether cities in California and the West may enforce laws against camping on sidewalks or other public property.

Homelessness has often been cited as the most intractable problem for cities in the West, and it has grown worse in the last decade.

Since 2007, the states with the largest increases in the number of people “experiencing chronic patterns of homelessness” were California, Washington, Oregon, Nevada and Hawaii, according to last year’s “annual homelessness assessment report” by the U.S. Department of Housing and Urban Affairs.

“California accounts for nearly six in 10 of all unsheltered individuals experiencing chronic patterns of homelessness in the United States,” the report said. HUD reported that the largest decreases in homelessness during that period were in two warm-weather states: Texas and Florida.

Experts and advocates disagree on why homelessness is worse in the West. Many point to the high cost of housing.

But city and state attorneys also point to differences in state laws.

The 9th U.S. Circuit Court of Appeals, whose jurisdiction covers nine states in the West, has recognized constitutional protections for those who are homeless and have no place to sleep. It remains the only federal appellate court in the nation to do so.

In a series of rulings, the 9th Circuit has held that cities and their police violate the 8th Amendment’s ban on cruel and unusual punishment when they arrest or fine people who have no access to shelter.

The 9th Circuit first invoked this rule in 2006 to protect people sleeping on the sidewalks of Skid Row in Los Angeles, and has since extended that doctrine to strike down anti-camping ordinances from Boise, Idaho, and Grants Pass, Ore.

The Supreme Court will hear an appeal Monday in Grants Pass v. Johnson.

How is homelessness a constitutional issue?

The 8th Amendment prohibits certain methods of punishment for a crime. For example, the court ruled in 2005 that imposing the death penalty on a youth under age 18 was cruel and unusual punishment.

In a 1962 case from Los Angeles, the Supreme Court ruled for the first time that labeling some things as a “crime” may itself constitute cruel and unusual punishment.

In that case, two L.A. police officers had arrested Larry Robinson and reported that his arm was discolored by needle marks, though they had seen no direct evidence that he’d been using drugs. He was convicted and sent to jail for 90 days under a California law that, among other things, made it a crime to “use narcotics or to be addicted to the use of narcotics.”

In Robinson v. Los Angeles, the justices struck down the part of the law that made “the status of narcotic addiction” a crime.

The 9th Circuit cited that precedent in ruling that cities may not punish people for the status of being homeless.

“As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors on public property,” the court said in 2018.

What are the legal issues the Supreme Court will need to sort out?

That depends on who you ask.

Advocates for the homeless describe the rulings from Boise and Grants Pass as narrow and limited, and say their impact has been exaggerated by cities seeking to divert attention from their own failings.

These advocates add that the two cities are extreme examples because they sought to enforce their ordinances citywide and essentially banish homeless people from living in them.

State and local attorneys in California say the rulings have had a broad and troubling impact because they have been read as forbidding any enforcement action against homeless encampments if a city does not offer shelter to the many thousands who may need it.

Lawyers for dozens of West Coast cities, including San Francisco, Seattle, Phoenix and Los Angeles, say they have faced lawsuits accusing them of violating the constitutional rights of homeless people.

The justices must decide whether city ordinances that forbid or limit sleeping or camping on sidewalks amount to cruel and unusual punishment. The court’s conservatives are expected to be skeptical.

But the court could seek a middle approach by ruling that cities have the authority to restrict camping in public, so long as the ban is limited to certain places.

The Justice Department is urging the court to adopt that approach.

“The Constitution does not prevent the federal government, states, or localities from imposing reasonable time, place, and manner restrictions on sleeping in public and other conduct associated with homelessness,” Solicitor Gen. Elizabeth Prelogar said.

What’s the argument of cities such as Grants Pass?

Lawyers for Grants Pass argue that camping on a public sidewalk is a conduct, not a status. And they say that imposing modest fines on repeat violators is not cruel and unusual punishment.

The attorneys say courts should not go down the road of freeing people from the law for what can be called “involuntary” conduct.

They say the 9th Circuit’s “mistaken view of the 8th Amendment logically would immunize numerous other purportedly involuntary acts from prosecution, such as drug use by addicts, public intoxication by alcoholics, and possession of child pornography by pedophiles.”

What’s at stake, they argue, is “the fundamental police power that all states possess to preserve public sidewalks, parks, school grounds, and other spaces for the use and enjoyment of the general public, free from obstruction, harassment, and inconvenience.”

They say that since the 9th Circuit’s rulings on the issue, “encampments have multiplied unchecked throughout the West … resulting in spikes in violent crime, drug overdoses, disease, fires, and hazardous waste. The city does not ask this court to create any new authority, but only to restore standard tools that governments routinely use across the rest of the country to preserve public spaces for the entire community.”

What do advocates for homeless people say?

They say that Grants Pass officials are exaggerating the impact of one ruling on the small city in southern Oregon.

“This was a unique situation. People were being awakened and threatened by the police,” said Ed Johnson of the Oregon Law Center, which sued Grants Pass. “This was a deliberate effort to banish people from the city. It’s really an outlier.”

He said the city’s ordinance defined camping broadly to include the use of bedding or a sleeping bag anywhere in the city.

Their brief to the Supreme Court emphasizes what they say is the “cruelty” of such a rule.

“It is difficult to imagine a more blameless offense than resting outside with a blanket to survive the cold when you have nowhere else to go,” the advocates said.

“The sole question before the court is whether the cruel and unusual punishments clause permits the city to inflict punishment on homeless people for resting or sleeping with a blanket anywhere in public at any time when they have nowhere else to go – in other words, for their continued physical existence in the community. The answer is no,” they wrote.

Will this case make it easier for California cities to deal with homelessness?

Maybe, if the cities win.

If the Supreme Court reverses the 9th Circuit, its decision could free city officials and their police to remove homeless encampments from sidewalks, parks or other public areas.

But in many cities, including Los Angeles, elected officials have said they are not in favor of aggressive or heavy-handed use of the police. They prefer policies that forbid encampments in certain sensitive locations and that encourage homeless people to accept offers of shelter.

Many city officials say they hope that whatever the Supreme Court decides, it provides more legal clarity and enforcement flexibility.

They say the 9th Circuit’s broad but unclear decisions have spawned a parade of class-action lawsuits, including conflicting claims on the same issue. Cities say they have been sued for doing too much or not enough to address the problem of homelessness.

In a friend-of-the-court brief, Los Angeles City Attorney Hydee Feldstein Soto said that L.A. “needs to have the flexibility to provide solutions on an individual by individual or an encampment by encampment basis unhindered by one-size-fits-all class action litigation.”

She closed by urging the court to “provide a clear ruling with well-defined parameters and application, and not a generalized abstraction that simply invites endless new rounds of litigation and further diverts resources from this important problem.”

What do advocates for homeless people say are the stakes in this case?

They say the underlying problem is a lack of affordable housing.

“Homelessness is not a choice. It is a socially constructed status resulting from policy decisions. Yet rather than eradicating homelessness, governments try to eradicate homeless people,” the Western Regional Advocacy Project said in its friend-of-the court brief.

“Criminalizing homelessness not only fails to address systemic causes of mass homelessness, it also exacerbates underlying structures of oppression and drains communities of capacity to build toward better futures,” the brief said.

Advocates worry that a ruling in favor of Grants Pass will lead to more law enforcement and less effort to provide shelter to those who need it.