As West Coast Cities Descend Into Squalor, Supreme Court Will Weigh Whether Homeless Tents Can Be Removed

The case will challenge lower court rulings that ‘impose a one-size-fits-all rule and make it impossible for the government to treat individual cases on an individual basis,’ one observer tells the Sun.

AP/Craig Mitchelldyer, file
Tents line the sidewalk on SW Clay Street at Portland, Oregon. AP/Craig Mitchelldyer, file

Since 2018, a federal appeals court has prevented West Coast cities from arresting homeless people for camping on public land in the absence of available shelter beds — ruling that doing so is a violation of the Eighth Amendment’s cruel and unusual punishment clause.

A small city in Oregon, Grants Pass, is taking the issue to the Supreme Court next week, arguing that the past six years show a clear track record of “sprawling encampments, rising deaths, and widespread harms to the community, as localities are forced to surrender their public spaces” to homeless encampments often overrun by rampant crime, drug use, and disease. 

A rare coalition of leaders across the political spectrum has thrown their support behind Grants Pass as the city seeks to enforce its public camping ordinances after the Ninth Circuit ruled in Johnson v. City of Grants Pass, building on Martin v. Boise in 2018, that a lack of shelter beds meant being homeless is “involuntary.”

The Supreme Court will hear arguments on Monday, after declining to weigh in on the issue in 2019 — and the case is expected to have ripple effects for more than 600,000 homeless individuals across the country as well as the cities in which they live. 

The problem with the appeals court rulings, from riders of the Ninth Circuit, the Goldwater Institute’s legal affairs vice president, Timothy Sandefur, tells the Sun, is that “they impose a one-size-fits-all rule, and they make it impossible for the government to treat individual cases on an individual basis.” 

The Goldwater Institute, which filed an amicus brief on the topic, is located at Phoenix, where a sprawling homeless encampment known as “The Zone” was ordered to be cleared last year by a court after the city failed to take action. At Phoenix, Mr. Sandefur says, the Ninth Circuit rulings were used by the city leaders as an excuse to not do their jobs. 

“The city of Phoenix knew perfectly well that operating an open-air homelessness camp, with over 1,000 people in it for two years through 120-degree Phoenix summers, was not mandated by the Ninth Circuit Court of Appeals,” he says. 

Monday’s Supreme Court arguments will likely see much discussion of a 1962 Supreme Court case, Robinson v. California, in which the court held that it’s unconstitutional for a state to punish drug addicts, as addiction is a “status.” 

“Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold,” the court wrote in that case — a line that Mr. Sandefur says is sure to come up in the homelessness dispute as the court weighs to what extent people are homeless “involuntarily,” and whether that status allows them to violate city ordinances. 

In its brief, the Goldwater Institute argued that the Ninth Circuit’s across-the-board ruling is “dehumanizing” to the homeless and prevents “case-by-case determination, substituting a false and insulting paternalism whereby people are viewed as per se incapable of taking responsibility for their own lives.”

Grants Pass has noted that the Ninth Circuit’s view of the Eighth Amendment “logically would immunize numerous other purportedly involuntary acts from prosecution, such as drug use by addicts, public intoxication by alcoholics, and possession of child pornography by pedophiles.”

Cities don’t have resources to track every available shelter bed and each homeless resident, and thus the Ninth Circuit rulings have prevented cities from addressing encampments, Grants Pass’ brief notes. 

The respondents in the case, two homeless residents of Grants Pass, cite the Robinson ruling frequently, arguing that anti-camping ordinances punish the status of being homeless. The ordinances “make it unlawful for homeless people to sleep or rest anywhere on public property at any time with so much as a blanket to survive the cold, even if they have no access to shelter,” the respondents’ brief notes. 

Groups in support of the respondents, including a filing from the National Homelessness Law Center, say that the Grants Pass anti-camping laws seek to punish “the very existence of a marginalized group — those without homes — and to banish them from public spaces enjoyed by everyone else.”

Though not a direct party to the case, the Supreme Court granted the Justice Department’s request to participate in oral arguments as the federal government has a “strong interest” in the case. The Biden administration, in a brief in support of “neither party,” says laws that “effectively criminalize the inability to obtain shelter often serve only to exacerbate the problem of homelessness.”

“At the same time, cities and towns have a strong interest in maintaining their public parks, sidewalks, and other spaces in a clean and safe condition, and in a manner that preserves them for their intended uses,” the brief notes.

The New York Sun

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