The U.S. Supreme Court’s recent decision to grant cities more authority to penalize individuals for sleeping in public spaces when they have no other options is expected to lead to more aggressive actions in removing homeless encampments. This ruling, which came in a 6-3 decision, allows municipalities to enforce camping bans without violating the Eighth Amendment’s protections against cruel and unusual punishment.
Justice Neil Gorsuch, writing for the majority, emphasized that homelessness policy should be determined by state and local leaders rather than federal judges. “Homelessness is complex,” Gorsuch wrote. “Its causes are many. So may be the public policy responses required to address it.” He argued that the Eighth Amendment does not grant federal judges the primary responsibility for assessing the causes of homelessness and devising responses.
The decision overturns a lower court ruling that had prevented cities from criminalizing the conduct of people who are “involuntarily homeless.” This lower court ruling had forced the U.S. Court of Appeals for the 9th Circuit to grapple with what it means to be homeless with no place to go and what shelter a city must provide. Gorsuch noted that these questions had led to waves of litigation across the Ninth Circuit.
In a dissenting opinion, Justice Sonia Sotomayor argued that for some people, sleeping outside is a “biological necessity” and that it is possible to balance the needs of local governments with constitutional principles and the humanity of homeless individuals. “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. Sotomayor warned that criminalizing homelessness could cause a destabilizing cascade of harm, including the loss of important documents and items needed for work.
Advocates and legal experts predict that the ruling will lead to more citations and arrests without violating the Eighth Amendment, potentially resulting in more legal claims over other constitutional protections. These could include the disposal of people’s property during encampment removals, focusing on rights against unreasonable search and seizure and guaranteeing due process under the Fourth and 14th Amendments.
Stephen Schnably, a law professor at the University of Miami, suggested that the ruling could lead to more sweeps and attempts to close down encampments or harass people living on the streets to make them less visible or force them to leave town. Ann Oliva, CEO of the National Alliance to End Homelessness, noted that if more cities enact camping bans, it could require an increased law enforcement response, leading to the loss of property.
ProPublica has reported on the impact of encampment removals, finding that the city of Albuquerque discarded personal property in violation of city policy and a court order. People described losing survival gear, important documents, and irreplaceable mementos during these removals. Dozens of people with lived experience and advocates have described having their property discarded during encampment removals.
Legal experts say the ruling empowers 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, expressed concern that the ruling would lead communities to think criminalization is the right direction and dissuade policymakers from developing new ways to provide more affordable housing. He worries that the ruling will lead homeless people to become more isolated and vulnerable to crime.
States have already enacted new legislation that criminalizes camping on public land. A new Florida law, effective Oct. 1, prohibits counties and municipalities from allowing camping or sleeping on public property and directs the state’s Department of Children and Families to certify designated camping areas for people experiencing homelessness. Kentucky lawmakers overrode a veto to enact the Safer Kentucky Act, which makes camping on certain private and public property a misdemeanor after multiple violations and allows property owners to use deadly force against people who are illegally camping.
Grants Pass, Oregon, along with many other cities and states, asked the Supreme Court to hear the case, arguing that a 2018 lower court ruling, Martin v. Boise, prevented cities across the West from responding to the growth of encampments. The 9th Circuit had ruled that homeless people cannot be punished for sleeping outdoors on public property if they have nowhere else to go.
In its appeal, Grants Pass argued that the status quo harms local governments, residents, and people experiencing homelessness. Lawyers representing homeless individuals argued that the 9th Circuit ruling did not deprive cities of their ability to clear encampments and pointed out that Grants Pass had continued to dismantle encampments throughout the legal proceedings.
Jesse Rabinowitz, communications director for the National Homelessness Law Center, said the Supreme Court’s decision empowers cities and states to push homeless individuals into other towns, creating a national game of “human Whac-A-Mole.” Bob Erlenbusch, a board member for the National Coalition for the Homeless, noted that cities have found other ways to criminalize homelessness and clear encampments since the Martin v. Boise decision.
Sara Rankin, a law professor with Seattle University, warned that the court’s ruling will embolden the dehumanization of unsheltered people. She expressed deep concern about the potential harm to people as a result of increased encampment sweeps.
Source: ProPublica, CBS Pittsburgh
