Cities ask Supreme Court to resolve homeless policy dispute

Wayne Earl spent six months of 2016 on the streets of Hayward, Calif., across the bay from San Francisco. “I lived in abandoned buildings, squatting in houses, living in encampments,” he said. Family deaths and divorce drove Earl back to old drug patterns. His methamphetamine and heroin habits filled him with shame and kept him on the streets. “It became about survival and fear,” he said.

But then Earl arrived at the Bay Area Rescue Mission, where he got sober. Staff explained the gospel to Earl and he became a Christian. He has never returned to homelessness. But since his transformation, he’s watched homeless encampments grow into a defining feature of an area known for its natural beauty and mild climate.

Last year’s count estimated 4,400 people sleep outside within the city limits of San Francisco and another 3,400 sleep in homeless shelters. About 38,000 people are homeless in the larger Bay Area. Despite setting aside nearly $20.6 billion since 2018 to combat homelessness, California’s streets are home to half of the nation’s unsheltered people, residing in places not meant for human habitation like abandoned buildings, cars, or encampments in the woods. In Los Angeles County, about 2,000 unsheltered people died on the streets in 2021. About one-third of the total homeless population—which includes people in emergency shelters—resides in the state.

As California and other western states rack up billions of dollars in spending on homelessness, shanty clusters only continue to grow. Frustrated residents and business owners are pressuring officials to crack down on public camping. But local government officials argue that federal case law complicates efforts to move people off the streets and invites expensive lawsuits. The issue has united a coalition of cities, state lawmakers, and advocacy groups who are asking the U.S. Supreme Court to reconsider a legal precedent requiring cities to provide enough shelter beds before they can enforce criminal penalties for public camping.

In 2018, Martin v. Boise set a new precedent for states in the 9th U.S. Appellate Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Six homeless individuals argued that a Boise public camping ordinance criminalized their basic human needs. They maintained that long-term shelters were almost always full or compelled them to participate in Christian programming with which they disagreed. The 9th Circuit Court of Appeals agreed that enforcing criminal penalties on an individual’s ability to sit, sleep, or lie down when they have no valid alternative is cruel and unusual punishment under the Eighth Amendment of the Constitution.

Three years after Martin, the 9th Circuit handed down a decision in a case that began two decades earlier. Several homeless plaintiffs challenged five camping-related ordinances in Grants Pass, Ore., a city of almost 40,000 along the Rogue River. City officials criminally prosecuted individuals for trespassing if they caught them camping on city property after receiving an exclusion order. In Johnson v. City of Grants Pass, the 9th Circuit panel ruled a city cannot punish a homeless person for sleeping on the street if the number of adequate shelter beds is less than the number of total homeless individuals, even if there are empty shelter beds available.

Timothy Sandefur, the Goldwater Institute’s vice president for legal affairs, said the ruling effectively defined involuntary homelessness with a numerical formula. Even though neither ruling prohibited cities from enforcing camping bans in specific locations, the result was that cities stopped taking action to address the problems with homeless encampments.

Additionally, neither of the court decisions explained what qualifies as “adequate shelter.” In Johnson, the judges clarified that shelters with a “mandatory religious focus” could not be counted as available shelter space, citing First Amendment establishment clause concerns.

“Churches are the No. 1 provider of aid to the homeless,” said Sandefur. “You’re ruling out the largest source of shelter beds from this entire formula.”

A Portland, Ore., report showed that homeless individuals turned down 75 percent of some 3,400 offers of shelter. City officials in Sacramento, Calif., conducting encampment sweeps said individuals rejected offers to relocate to a sanctioned camping site. Those who work with homeless individuals say they often refuse shelter because available sites limit personal belongings to a few bags or force a client to separate from their spouse or pet. Shelter curfews may interfere with an individual’s shifts at work, said William Knight, the decriminalization director at the National Homelessness Law Center. He argued the individuals themselves should decide whether a shelter space is adequate.

But Troy Vaughn, CEO of the Los Angeles Mission, pointed to practical concerns. Individuals can keep some belongings in storage facilities, “but we have to be reasonable,” he said. The mission also doesn’t allow pets, though it will make an exception for service animals. No one who needs emergency shelter or a warm meal is forced to participate in Christian services. But “we are very clear about our position … and how we approach rehabilitation,” Vaughn said. “We come from a Christian framework.”

Lawyers and local judges are hammering out what the two federal cases mean for cities up and down the West Coast dealing with rising homelessness.

Downtown property and business owners sued the city of Phoenix in state court for refusing to enforce public nuisance laws in The Zone, the city’s largest encampment where about 1,000 homeless people erected tents and shanties. In September, a judge ordered the city to clear the area by Nov. 4. But the American Civil Liberties Union alleged in federal court that the city is destroying people’s property and forcing them into overcrowded shelters in violation of the Martin precedent.

In San Francisco, the Coalition on Homelessness made similar claims in a lawsuit challenging city policies that shut down homeless encampments. In December 2022, U.S. Magistrate Judge Donna Ryu restricted encampment sweeps with a preliminary injunction, which grants relief to one party while the court decides the case. In his appeal, the city attorney argued that Ryu interpreted the Martin precedent too broadly, placing the city in an “impossible situation.”

In a January memo clarifying the injunction, the San Francisco Police Department instructed officers only to ask someone to move so long as “the city’s request is not accompanied with a threat of enforcement.” Officers can still enforce public nuisance laws related to something other than the person sitting, sleeping, or lying in a public place.

But former Deputy Chief James Dudley said enforcing these public nuisance laws isn’t high on the department’s list of priorities. Dudley grew up in San Francisco and spent 32 years with the city police. Officers rarely arrested people for lying in public places and didn’t issue many citations since most people heeded their initial warnings backed by the threat of criminal penalties.

Dudley said that’s changed. Police are hesitant to enforce the law. “They’re put in the middle by a community that wants them to do something,” he said. “And their hands are tied by Martin v. Boise.”

City attorneys for Sacramento, Seattle, and more than a dozen other cities, as well as national municipal and advocacy organizations, asked the Supreme Court to take another look at the Johnson and Martin precedents. California Gov. Gavin Newsom, a Democrat, and Republican legislators in Arizona joined the petition. While he initially supported the Martin decision, Newsom argued it has been “distorted” to enable a “humanitarian crisis.” He said the 9th Circuit’s ambiguous legal standard for what qualifies as adequate shelter has left “only the most rudimentary and fragmentary options for effecting change.”

The Supreme Court accepts between 100 to 150 of the more than 7,000 petitions filed each year. Knight with the National Homelessness Law Center argued the court shouldn’t and most likely won’t take up the case since they already declined to hear Martin v. Boise in 2019. “The nature of the questions hasn’t changed,” he said, blaming local officials for not doing “what we actually need to do to help people and to provide services.” He maintains that the solution to homelessness is more access to shelter and permanent housing.

But Sandefur with the Goldwater Institute said “there’s a very good chance the court is going to take this case” since officials and legislators on both sides of the issue are asking the justices to review it. If the court is interested, the justices typically ask the opposition for a countering petition. The court requested a response from the Johnson plaintiffs by Dec. 6.

“That shows that at least one of the justices is taking this really seriously,” Sandefur said. “How could they not take the case? It’s such a huge crisis now throughout the country, especially in the west.”