Tents line up against a fence at a homeless encampment near Highway 180 in west Fresno on Feb. 11, 2022. Photo by Larry Valenzuela for CalMatters

The U.S. Supreme Court will weigh in on whether cities can legally ban or limit unhoused people camping in public spaces — a case that could grant California officials more power to sweep homeless camps.

The case, originating from the Oregon city of Grants Pass, could overturn or narrow a five-year-old precedent from a federal appeals court that limited how much cities in Western states could criminalize those who sleep on the streets when there aren’t enough shelter spaces available.

In the older case — Martin v. Boise — the Ninth Circuit Court of Appeals ruled in 2018 that it’s cruel and unusual punishment to criminalize camping on public property when the people in question have nowhere else they can legally sleep. The ruling was binding on West Coast cities, where rising rates of unsheltered homelessness that later spiked during the pandemic were driving local politicians to pass public camping prohibitions. In 2019 the Supreme Court declined to hear an appeal of that case.

Since then, California cities have often been subject to federal lawsuits after passing restrictions on when and where the unhoused can set up camps. Relying on the ruling in the Boise case, judges have delayed or outright halted camping bans from being enforced in cities including San Francisco, Sacramento, Chico and San Rafael, finding that the cities had failed to provide adequate alternate shelter options for the residents they were about to sweep from their encampments.

The situation has led city officials — and Gov. Gavin Newsom — have complained that the Boise ruling has tied their hands from addressing the state’s sprawling encampments, arguing they need to sweep camps both for health and safety reasons and for the well-being of encampment residents. It’s led liberal officials into the unusual position of asking a majority-conservative court for more power to penalize the homeless for sleeping outside. In a high-profile case that has particularly drawn Newsom’s ire, the Ninth Circuit Court of Appeals this month backed a judge’s 2022 ruling restricting San Francisco’s enforcement of certain bans on sleeping on sidewalks and in parks, because the city hadn’t shown there were other locations that were “realistically available” to unhoused residents before a city sweep.

“California’s elected officials who seek in good faith to improve what often appears to be an intractable crisis have found themselves without options, forced to abandon efforts to make the spaces occupied by unhoused people safer for those within and near them,” Newsom’s administration wrote to the Supreme Court in September.

The case is being closely watched by officials across California and could widely affect how they respond to encampments. Newsom’s statement was part of an amicus curiae brief the administration filed in the case. Amicus briefs are legal briefs submitted by parties not directly involved in a given case, but who typically take one side or the other in a case. The majority of the amicus briefs filed in the case were from California entities and, though more than a dozen mostly-Republican-led state governments also filed a brief, Newsom was the only governor to weigh in.

In addition to Newsom’s, other filings include the California State Association of Counties, the California State Sheriffs’ Association, district attorneys for Sacramento and San Diego counties, the cities of Los Angeles and San Francisco, the Los Angeles Area Chamber of Commerce, the Bay Area Council, and even the Brentwood Community Council.

But advocates for the unhoused say the Boise ruling is clear. They point out that most cities have hardly enough shelter beds to accommodate their homeless populations and that shelters are often near-full on any given night, and say banning public camping or restricting it does more harm than good by pushing homeless people from location to location.

“All you need to do to be compliant with (the Boise case) is stop using our criminal system as the stick here to solve this problem,” said Will Knight, decriminalization director at the National Homelessness Law Center, last year.

In particular, the court rulings have led to a patchwork of interpretations across the state on what qualifies as the “adequate shelter” cities must provide before sweeping homeless camps. The Oregon case that the Supreme Court agreed to hear could provide some clarity — or so California officials hope.

While the Boise ruling said the government can’t broadly ban any public camping without giving people alternative places to stay, Newsom and city officials across California said in briefs filed before the Supreme Court that they want to know whether they can set restrictions on times or locations where camping is allowed.

“All you need to do to be compliant with (the Boise case) is stop using our criminal system as the stick here to solve this problem.”
— Will Knight, Decriminalization director, National Homelessness Law Center

Other questions include whether cities can criminalize public camping for those whom they call “voluntarily” homeless — people who refuse offers of shelter. And California cities have asked the court to rule on whether, in order to ban camping, they need to have a suitable shelter space available for every individual unhoused person no matter their circumstances, or simply have general shelter beds open the day they sweep a camp.

But U.C. Berkeley law professor Jeffrey Selbin, who has studied statewide responses to homelessness, said claims from both sides are overblown.

Selbin said the existing cases neither fully tie cities’ hands, as some politicians say, nor provide a broad right to sleep outside, as some advocates say. He defended the status quo in which cities sometimes must seek guidance from federal judges to know whether their local rules are constitutional under the Boise decision.

In Chico, for example, a federal district judge in 2021 ruled that sending unhoused residents to camp on an unshaded airport tarmac on the outskirts of town was not “adequate” enough shelter to justify banning encampments in town. In response, the city settled the case by setting up a site of tiny homes where it can offer encampment residents a room before proceeding to sweep their camp.

That case, Selbin said, provided direction to other cities, showing that the court cases have “required local jurisdictions to take seriously what it means to provide basic shelter and options.”

The Supreme Court is unlikely to provide that kind of “micromanaging,” Selbin said, predicting instead that the justices will simply overturn the 2018 precedent set by the Boise case and allow cities to broadly criminalize encampments.

“It’s just going to return California to the whack-a-mole of prioritizing punishment over services,” he said.


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