U.S. Supreme Court Rules Cities Can Criminalize Sleeping Outdoors

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The U.S. Supreme Court's decision to give cities greater latitude to punish people who sleep in public when they have no other options will likely prompt municipalities to take more aggressive steps to remove encampments, including tossing more of the homeless' property, advocates and legal experts said.

In its 6-3 decision Friday, the conservative majority upheld the Grants Pass, Oregon, camping ban, finding that laws that criminalize sleeping in public spaces do not violate the Eighth Amendment's protections against cruel and unusual punishments.

Writing for the majority, Justice Neil Gorsuch said that national homelessness policy should not be dictated by federal judges, but rather should be left to state and local leaders. Homelessness is complex, Gorsuch wrote. Its causes are multiple. Perhaps so too are the public policy responses needed to address it.

Ultimately, the question this case poses is whether the Eighth Amendment gives federal judges primary responsibility for evaluating these cases and devising these responses. This is not the case, he wrote.

A lower court ruling barring cities from criminalizing the behavior of homeless people has forced the U.S. Court of Appeals for the 9th Circuit to question what it means to be homeless and what shelter a city ​​must provide, Gorsuch wrote. These inevitable questions have plunged the 9th Circuit courts and cities into waves of litigation, he wrote.

In a dissenting opinion, Justice Sonia Sotomayor wrote that for some people, sleeping outdoors is a biological necessity and that it is possible to reconcile the problems facing local governments with constitutional principles and the humanity of the homeless. Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: either stay awake or be arrested, she wrote.

Criminalizing homelessness can lead to a cascade of destabilizing harm, Sotomayor added. When a person is arrested or separated from their belongings, items that are frequently destroyed include important documents needed to access employment and housing or items needed for work like uniforms and bicycles, Sotomayor wrote.

Advocates and experts said that because the decision allows cities to issue more tickets and make arrests without violating the Eighth Amendment, it could lead to more legal challenges over other constitutional protections, including the disposition of people’s property during evictions. Other legal challenges over cities’ treatment of homeless people have focused on rights against unreasonable searches and seizures and due process in the Fourth and Fourteenth Amendments.

There will be more sweeps and attempts to close encampments or harass people living on the streets to make them less visible, perhaps to leave the city, said Stephen Schnably, a law professor at the University of Miami who has advocated for the rights of homeless people in lawsuits.

If more cities ban camping, which could require increased law enforcement intervention, those interactions could lead to property losses, said Ann Oliva, CEO of the National Alliance to End Homelessness. The decision opens that door, she said.

ProPublica has reported on the impact of encampment removals and recently found that the city of Albuquerque, while removing homeless encampments, had dumped personal property in violation of city policy and a court order which has since been lifted. Some people told ProPublica that their belongings were repeatedly thrown away by city crews. They described losing survival gear, including tents and sleeping bags, in freezing weather; important documents such as birth certificates; and irreplaceable memories like family photos.

Recently, dozens of people with lived experience and advocates from across the country described to ProPublica how their belongings were left behind when the encampments were moved.

Legal experts said the practical implications of the ruling are that it allows local governments to issue citations and make arrests with the possibility of jail time.

Donald Whitehead, executive director of the National Coalition for the Homeless, said he expects it will lead communities to think criminalization is the right direction and dissuade policymakers from developing new ways to provide more affordable housing. Why find innovative and creative solutions when you can simply attack the encampments and put people in prison, he said.

Whitehead said he feared the decision would lead to homeless people becoming more isolated and more vulnerable to crime.

States have already passed new legislation that criminalizes camping on public lands.

A new Florida law, which takes effect October 1, prohibits counties and municipalities from allowing camping or overnighting on public property. The law directs the state Department of Children and Families to certify designated camping areas for people experiencing homelessness. Starting in January, private citizens, business owners or the state attorney general can file a lawsuit if a county or municipality fails to follow the law.

Kentucky lawmakers overrode a veto by Gov. Andy Beshear, a Democrat, to enact the Safer Kentucky Act, which made camping on certain private and public properties a misdemeanor after multiple violations. The law also allows property owners to use deadly force against people who camp illegally and takes effect in July.

Grants Pass, a city of about 39,000, along with a slew of cities and states, asked the Supreme Court to hear the case, arguing that a 2018 lower court decision, Martin v. Boise, prevented Western cities from meeting the growing demand for encampments. The 9th Circuit, which covers states with some of the largest populations of homeless people, including California, Oregon and Washington, has ruled that homeless people cannot be punished for sleeping outside on public property if they have nowhere else to go.

In its appeal to the Supreme Court, Grants Pass argued that the status quo harms local governments, residents and people experiencing homelessness. Public camping laws provide a critical (and constitutional) safety net to stop the growth of encampments, the lawyers wrote.

Even when combined with offers of lodging and other services, efforts to enforce common-sense camping rules have been met with injunctions.

Lawyers representing homeless people argued that the 9th Circuit's decision did not strip cities of their ability to dismantle encampments. The lawyers pointed out that Grants Pass continued to dismantle the encampments throughout the legal proceedings, as it is free to do. This is a policy choice, not a judicial mandate, the lawyers wrote, adding that politicians have chosen to tolerate the encampments instead of addressing the West's severe housing shortage.

Jesse Rabinowitz, communications director for the National Homelessness Law Center, said the Supreme Court’s decision allows cities and states to play a national game of human Whac-A-Mole and continually do what they clearly intended to do in Grants Pass, which is push people to another city. We would see that happen nationwide.

Bob Erlenbusch, a board member of the National Coalition for the Homeless who has advocated on behalf of the homeless for four decades, said that since Martin v. Boise cities have found other ways to criminalize homelessness and clean up encampments.

It's a daily occurrence that encampments are being swept away, Erlenbusch said, describing city workers in Sacramento, California, who are using bulldozers and shovels to destroy property. And it's going to increase across the country.

Albuquerque dumps homeless people's belongings in violation of city policy

In an amicus brief in the Grants Pass case, the Western Regional Advocacy Project, a formerly homeless organization, described the dismantling of a winter encampment in Denver where people lost food, essential documents, sleeping bags, clothing, work tools, medicine, identification, blankets, survival gear and more.

Sara Rankin, a law professor at Seattle University who contributed to the amicus curiae brief and studies the criminalization of the homeless, said the courts' decision Friday would further the dehumanization of homeless people. Cities have always had the ability to sweep and they continue to do so at an insane rate, she said. What happens to people? Will people be more hurt as a result? I would say it's a very, very deep concern.

Have you experienced homelessness? Do you work with people who have them? Tell us about camp removals.

We investigate what happens when local agencies clear homeless encampments and take the belongings of the people living there, a practice that is becoming increasingly common across the country.

Develop

Ruth Talbot contributed reporting.

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