Supreme Court Rules Cities Can Enforce Bans on Homeless Encampments

The Supreme Court issued a ruling today in a case that will have a major impact on how cities can deal with homeless people and tent camps on the West Coast. 


I wrote about this case last year under the headline “Progressive elected officials beg conservative Supreme Court for relief on homelessness” and that’s exactly what happened here. Cities up and down the coast have been prevented from doing much about homeless people settling on sidewalks or in public parks thanks to two different decisions by the 9th Circuit Court of Appeals, which covers the western states including Hawaii and Alaska. In those decisions, the 9th Circuit had ruled that it was a violation of the 8th Amendment prohibition against cruel and unusual punishment for cities or arrest or interfere with homeless people who had no where else to go.

The result of these rulings was that cities like Portland, San Francisco and Seattle were scrambling to find ways to deal with people living on the street without getting sued. San Francisco actually did get sued and had to stop cleaning up tent camps.

Leading the campaign to get the Supreme Court to overturn the 9th Circuit was none other than Gov. Gavin Newsom of California. He was joined by all of the major cities on the West Coast plus Honolulu. Many of their mayors supported the appeal as well, progressive Democrats all.

“It’s just gone too far,” Mr. Newsom said in a Sacramento forum held by Politico this month, in which he vowed to seek clarity from the Supreme Court and recognized that he was asking for help from the same conservative jurists whom he had sharply rebuked for decisions on abortion and gun regulations.

“People’s lives are at risk,” he said. “It’s unacceptable, what’s happening on streets and sidewalks.”


The court agreed to take up the case in January and oral arguments were held in April. Today the court issued a 6-3 decision overturning the 9th Circuit.

In a 6-3 decision, the high court reversed a ruling by a San Francisco-based appeals court that found outdoor sleeping bans violate the Eighth Amendment.

Western cities had argued that the ruling made it harder to manage outdoor encampments in public spaces, but homeless advocates said punishing people who need a place to sleep would criminalize homelessness.

In California, which is home to one-third of the country’s homeless population. Democratic Gov. Gavin Newsom said the decision gives state and local officials authority to clear “unsafe encampments” from the streets. “This decision removes the legal ambiguities that have tied the hands of local officials for years,” he said.

Just to highlight the irony once again, this was a 6-3 decision in which the court’s conservatives all agreed to overturn this and progressive mayors and governors up and down the West Coast are celebrating. Had the court’s progressives gotten their way and upheld the 9th Circuit, all of those progressive mayors and governors would be miserable today.

Writing for the majority, Justice Neil M. Gorsuch said the problem of homelessness is complex, but the Eighth Amendment “does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy.”…

Justice Sonia Sotomayor read her searing dissent from the bench, calling such laws “unconscionable and unconstitutional.”

“Sleep is a biological necessity, not a crime,” said Sotomayor, who was joined by Justices Elena Kagan and Ketanji Brown Jackson.


Justice Gorshuch made a point of highlighting statements made by San Francisco about conditions there as a result of the 9th Circuit ruling.

Gorsuch also pointed to conditions in San Francisco, whose leaders had asked the court to overturn the 9th Circuit ruling.

“Consider San Francisco, where each night thousands sleep ‘in tents and other makeshift structures,’” he said, quoting the city’s filings, which included a statement by Mayor London Breed. “Judicial intervention restricting the use of that tool,” the mayor continues, “has led to painful results on the streets and in neighborhoods.”

At the core of this case was an argument about involuntary homelessness.

Three homeless people — Debra Blake, Gloria Johnson and John Logan — sued Grants Pass, Ore. in 2018, after the city started strictly enforcing measures that outlawed sleeping or camping in public spaces like parks and in parked cars.

Fines ranged from $75 to $295. But the penalties increased substantially when unpaid and could eventually result in jail time or a park ban. Blake, Johnson and Logan said the city, with a population of 40,000 people, was punishing them “based on their status of being involuntarily homeless” in violation of the Eighth Amendment.

Grants Pass is a small city which only had one homeless shelter run by a religious group, but the 9th Circuit’s decision also impacted large cities which did have extensive services for the homeless. And what those cities found was that many homeless people simply refused offers of shelter. Some homeless people claimed to feel less safe in shelters than on the streets and others pretty clearly just wanted to be where the drugs were being sold rather than some place where they are being watched and asked to maintain sobriety. 


The big cities argued that someone who refused an offer of shelter was not involuntarily homeless. In fact they were voluntarily homeless since they were turning down an opportunity to move inside. They wanted the ability to ticket or force those people to move if they had been offered but refused help. 

The point of this was not be needlessly cruel to homeless people but to allow cities to clean and maintain parks and sidewalks so that other citizens can traverse and use the space. Portland was actually sued under the ADA for failing to maintain sidewalks that people with disabilities could travel down safely. They eventually settled that suit and agreed to clear the sidewalks though that agreement was also hindered by the 9th Circuit decision.

Nevertheless, some homeless advocates are upset with today’s ruling.

“We are disappointed that a majority of the Court has decided that our Constitution allows a city to punish its homeless residents simply for sleeping outside with a blanket to survive the cold when there is nowhere else for them to go,” said Ed Johnson, director of litigation at the Oregon Law Center.

The reality is that this decision won’t actually solve the fundamental problem (no one thought it would) but it will give cities some tools to be able to manage it better. When dealing with chaos, filth and violence in the streets, the last thing cities needed was a distant judge tying their hands and limiting their options.




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