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—to complain 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 led liberal state and local officials, including Newsom, to join conservatives in asking the court for more power to penalize the homeless for sleeping outside. The high court has a 6-3 conservative majority.
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.
An attorney for the homeless Grants Pass residents said in a recent statement that politicians were wrong to blame judges for the homelessness crisis. He said cities have always been allowed to regulate encampments, even under the recent rulings.
“The issue before the Court is whether cities can punish homeless residents simply for existing without access to shelter,” said Ed Johnson, director of litigation at the Oregon Law Center.
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 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.
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.
Homelessness is, to be trite, totally out of control and law enforcement now needs the legal tools to remove permanently the offenders that do not want to comply with the housing that has been provided to them. To just be allowed to live on the street and partake of the drugs so prevalent in our society is unfair to the working class that does respect society’s laws.
If it is a mental issue obviously it is not resolved by leaving that person to fend for themselves.
The problem is bigger than all of us but all of us need to pitch in to resolve the tragedy. It will definitely need a higher power with a resounding voice to start this progression but it is imperative for our healthy future.
Almost no one wants to be sleeping on the streets. The greed of corporate “landlords” and developers makes it impossible to find reasonable shelter. That’s why there are so many homeless people. If you try to sleep in a car, you are constantly hassled if you try to live on a boat, you are constantly hassled. If you need to use a restroom, you are constantly denied access. if you need a shower, it’s always too short and cold…so people would rather find a place to hide or a camp where they feel safer from harassment. There are low cost solutions, but no one will help deve1lop them…California tries, but the general attitude of the population is NIMBY…
According to Sonoma County’s official count, approximately 1300 people have no safe, legal place to sleep tonight in our community. That is a lot of people!
Local homeless people have only have a few things in common – the lack of housing they can afford and that they were living in Sonoma County when they became homeless. (Beware of the stereotypes – “everyone is a drug addict”, “they don’t want help”, “they just take advantage if everyone else”, etc. 1300 people include many different stories and lives. No generalization is likely true for a majority of 1300 people. )
The big question: What are 1300 homeless people supposed to do tonight?
It’s very clear that there are, at the most optimistic count, less than 100 open beds in shelters at any given time.
If homeless people are not allowed to camp on public property? If they are not allowed to camp on private property? What do they do? Where do they go?
Do they turn into smoke and disappear? Do they walk the streets until they fall over dead?
I have raised this simple humanitarian question for 8 years without a response. It’s a question for our City, County, State and Federal representatives and it’s a question everyone in this community must grapple with.
Well said
When you say no generalization is likely true for 1300 people who are homeless in Sonoma County county, I would say that you are absolutely wrong, and that they all have quite a lot in common. And by that, I mean drug use and addiction. They may also have quite a bit in common in the fact that they were not born in Sonoma County they just saw the opportunity to be homeless there, and in the state of California in general. This doesn’t really require a lot of imagination or critical thought or deductive reasoning. The red states have no mercy, it’s an easy decision, if you’re homeless to go to California, especially Sonoma County. It’ll be relatively simple to get every form of welfare, and still camp in the street. They won’t use SSI money to pay rent they will just buy drugs. Anyone who thinks that homelessness is the result of rent prices going up, isn’t in touch with reality. there is nothing new about a neighborhood becoming too expensive, and the answer is always to move to a less expensive area, of course we understand that’s not desirable. It may not be as pretty or as safe, but it is the logical thing to do, even if it makes your commute to work work more difficult. There’s nothing new about homelessness in America or joblessness— we know that if a plant closed down, there was no other work in that town, possibly in that state, and so you would have to pick up and move with your whole family, but you did not live in the street. In fact, Elvis Presley spoke about that, saying they would end up staying with their cousins and so forth. They certainly didn’t set up a tent. And they weren’t drug addicts. Elvis famously gifted Cadillacs to his family when he became famous, to show his appreciation, but that’s not the point. i’m no stranger to homelessness as a native New Yorker, you’re going to have to move out of the neighborhood do you love near Central Park, you might have to move up to Harlem, and I did, I swear to God, it wasn’t pretty it was very noisy and loud and full of crime, but I did what any logical person would have done, I did it until I was in a better situation with a different job to change it and even then I had to live with roommates, it’s a constant annoyance, there’s no question about it, but I didn’t set up a tent in the street, and if I had to work double shifts, then that’s what I did .. and in New York City, homeless shelters were known to be extremely dangerous, like prison, you would have to sleep on top of your backpack, but like I said, someone who is not an alcoholic or drug addict, will quickly get up early in the morning and figure out a way to try to change it so that they won’t be there the next morning, human beings are incredibly good at that, as long as they are not drug addicts and drunks .. you can solve anything if you’re in that condition, and whoever thinks that it’s a good idea for California to assist you with your addiction, isn’t going in the right direction, the only assistance should be rehab to get you on your feet. One of the things that a person should do when they get into any kind of trouble, is make sure to stay sober so that they can think of a solution as quickly as possible. That’s what people have always done, and the ones who just wouldn’t stop drinking ended up on Skid Row but they weren’t the majority, and the numbers were never even one percent of what they are today, and that’s because you’re enabling this kind of behavior. We are not talking about wild animals like mountain lions, or bears, they have no place to go, as we continue to develop roads and housing, but they are not human beings, they can’t understand their problem, they don’t know what 4:00 PM tomorrow means, but we have a mind and we understand time and a calendar someone in social services can tell you to show up at 10 AM and help you begin the process. I’ve seen it in the 80s and 90s in Manhattan, some people were sleeping in dangerous areas on the tracks that belong to Amtrak, and under the subways… Social services had to get involved eventually, provide them section 8 housing up in the Bronx, which is not necessarily a pretty or safe area, but you do have an apartment with a door and a lock And you can cook your food on the stove and take a shower in your bathroom, and welfare will cover it. But if you’re saying you love Sonoma County, you don’t want to go somewhere else you’d rather sleep on the street, well, it’s my opinion that you’re to be ignored, because you’re not being realistic, you’re in no position to be making demands about your real estate location. Maybe they’ll send you to the very northern part of the state, and you don’t know anyone there, well too bad, you’ll have housing… we see people in their 20s who were able-bodied, sleeping in the street, California has a surplus this is not a money issue, if it’s mental illness then put them in a freaking institution. Have a psychiatrist demand that they kept there for their safety and the safety of others, it doesn’t mean they need to end up in prison but it’s also fair to say that a bunch of these are also criminals who got out of jail and are just repeating their self sabotaging behavior. It’s too late to start wondering how this person got into this situation, it’s time for a Solutions that no one really likes, but it takes them off the street… because at the end of the day no one is safe on the street, and more importantly, a lot of them might have serious mental illness from PTSD from Afghanistan or Iraq, which makes them particularly dangerous because they are trained killers… The problem can be solved, but it Has to be done efficiently even if liberals don’t like that word .
I agree with you. Well said.