Homelessness in Western States
The states in the Western U.S. (in particular, California) have struggled in recent years to address homelessness. Due both to high housing costs and the mild weather in most of the state, California’s homelessness rate is more than double the national average. And while many individuals suffer through homelessness by sleeping in their cars or staying at shelters or with friends or family, homeless encampments can be found in all of California’s major urban areas, as well as in many of its smaller towns and suburbs.
The Legal Landscape Before Grants Pass
Until the Supreme Court’s decision in June in the Grants Pass case, western states were prohibited by the federal courts from using their anti-camping laws to clear out homeless encampments, unless the government could provide the individuals they were displacing with a shelter bed. If there were no shelter beds available, the courts held enforcing the laws against sleeping in public would be akin to criminalizing people just for being homeless. As a result, many cities and counties were unable to enforce their laws because not enough shelter beds were available.
Despite the rulings of the federal courts in the western United States, the City of Grants Pass, Oregon, passed and began enforcing an anti-camping law even though it did not have shelter beds available. Grants Pass was sued and the Ninth Circuit Court of Appeals held that its law violated the Eighth Amendment’s prohibition on cruel and unusual punishment because it criminalized people for no reason other than being homeless.
The Supreme Court’s Ruling
The Supreme Court heard the case in April and, in June, reversed the Ninth Circuit. The decision has implications well beyond the small municipality of Grants Pass. By holding that the anti-camping bans punish conduct (sleeping outdoors) and not status (being homeless), the Supreme Court overturned years of precedent in the Ninth Circuit. The Supreme Court reasoned these bans affect not only the homeless, but also backpackers on vacation and so were not really about the status of the person engaging in the conduct. The Supreme Court made clear that the lower courts could no longer prohibit enforcement of these anti-camping laws, so long as the punishments were not draconian (in Grants Pass, for example, the first offense results in a $200 fine).
What This Means for California Cities
California cities and counties that have previously been prevented from enforcing their anti-camping laws and similar ordinances recognize that they will have new tools available to address the impacts of the homelessness crisis. The Grants Pass decision will allow communities to remove encampments from roadways, sidewalks, and parks, where they have presented safety risks and health hazards, as well as preventing public access and use of public spaces. But municipalities are not free to implement whatever laws they want to try to address homelessness, and efforts by individual localities to use laws to try to force the homeless to leave their jurisdiction and go elsewhere will do nothing to alleviate the problem of homelessness.
Los Angeles Mayor Karen Bass rejected the idea that the Supreme Court’s decision would help address the problem and vowed to continue building more shelter space and encouraging the homeless to accept services. Leaders in other jurisdictions have welcomed the Grants Pass decision as expanding their options to address chronic homelessness and the drug, crime, health, and safety risks that come from people living on the streets. Cities and counties that intend to enforce anti-camping and related laws to address homelessness should expect continuing challenges from advocates for the homeless when those jurisdictions fail to provide adequate housing and services, or if they attempt to enforce overly punitive sanctions like jail time for violating the laws. Municipalities must also ensure they are providing due process to those charged under these laws to avoid meritorious lawsuits by civil liberties groups and advocates for the homeless. Additionally, if jurisdictions attempt to use anti-camping laws to encourage the homeless to move on to a neighboring community, they may clear out a highly visible reminder of the problem in the short-term without doing anything to address it (and at the cost of creating disputes with neighboring jurisdictions).
Conclusion
The Supreme Court’s controversial decision in Grant’s Pass made new tools available to local governments to address homelessness, but jurisdictions must ensure that they are not violating other laws (including the due process rights of individuals charged) in implementing these policies. High profile litigation over how communities address homelessness is not likely to end with the Grants Pass decision. Nor are enforcement tools like anti-camping laws a panacea for a problem with many root cause (including mental health issues, substance abuse, domestic violence, and the extremely high cost of housing).