U.S. Supreme Court Says Cities Can Criminalize Sleeping Outdoors

The U.S. Supreme Court’s decision to give cities broader latitude to punish people for sleeping in public when they have no other options will likely result in municipalities taking more aggressive action to remove encampments, including throwing away more of homeless people’s property, advocates and legal experts said.

In its 6-3 decision on Friday, the conservative majority upheld Grants Pass, Oregon’s ban on camping, finding laws that criminalize sleeping in public spaces do not violate the Eighth Amendment’s protections against cruel and unusual punishment.

Writing for the majority, Justice Neil Gorsuch said that the nation’s policy on homelessness shouldn’t be dictated by federal judges, rather such decisions should be left to state and local leaders. “Homelessness is complex,” Gorsuch wrote. “Its causes are many. So may be the public policy responses required to address it.”

“At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not,” he wrote.

A lower court ruling that prevented cities from criminalizing the conduct of people who are “involuntarily homeless” forced the U.S. Court of Appeals for the 9th Circuit to confront what it means to be homeless with no place to go and what shelter a city must provide, Gorsuch wrote. “Those unavoidable questions have plunged courts and cities across the Ninth Circuit into waves of litigation,” he wrote.

In a dissenting opinion, Justice Sonia Sotomayor wrote that, for some people, sleeping outside is a “biological necessity” and it’s possible to balance issues facing local governments with constitutional principles and the humanity of homeless people. “Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested,” she wrote.

Criminalizing homelessness can “cause a destabilizing cascade of harm,” Sotomayor added. When a person is arrested or separated from their belongings, the items that are frequently destroyed include important documents needed for accessing jobs and housing or items required for work such as uniforms and bicycles, Sotomayor wrote.

Advocates and experts said that since the ruling allows municipalities to issue more citations and arrests without violating the Eighth Amendment, the decision could lead to more legal claims over other constitutional protections, which could include the disposal of people’s property during encampment removals. Other legal claims over cities’ treatment of homeless people have focused on rights protecting against unreasonable search and seizure and guaranteeing due process, in the Fourth and 14th Amendments.

“There will be even more of these sweeps and attempts to just close down encampments or harass people who are living on the streets to just basically make them become less visible, maybe leave town,” said Stephen Schnably, a law professor at the University of Miami who has advocated for the rights of homeless people in lawsuits.

If more cities enact camping bans, which could require an increased law enforcement response, those interactions could lead to loss of property, said Ann Oliva, the CEO of the National Alliance to End Homelessness. The ruling “opens that door,” she said.

ProPublica has been reporting on the impact of encampment removals and recently found that the city of Albuquerque, while removing homeless encampments, had discarded personal property in violation of city policy and a court order that has since been lifted. Some people told ProPublica that they had belongings discarded multiple times by city crews. They described losing survival gear, including tents and sleeping bags during freezing weather; important documents such as birth certificates; and irreplaceable mementos like family photos.

Recently, dozens of people with lived experience and advocates from across the country have described to ProPublica having their property discarded during encampment removals.

Legal experts said the practical implications of the decision is that it empowers local governments to issue citations and make arrests with the possibility of jail time.

Donald Whitehead, the executive director of the National Coalition for the Homeless, said he expects it will cause communities to think criminalization is the “right direction” and dissuade policymakers from developing new ways to provide more affordable housing. “Why come up with innovative, creative solutions when you can simply raid encampments and put people in jail,” he said.

Whitehead said he is worried that the ruling will lead homeless people to become more isolated and vulnerable to crime.

States have already enacted new legislation that criminalizes camping on public land.

A new Florida law, which takes effect Oct. 1, prohibits counties and municipalities from allowing camping or sleeping on public property. The law directs the state’s Department of Children and Families to certify designated camping areas for people experiencing homelessness. Beginning in January, private citizens, business owners or the state attorney general can sue if a county or municipality fails to adhere to the law.

Kentucky lawmakers overrode a veto by Gov. Andy Beshear, a Democrat, to enact the Safer Kentucky Act, which makes camping on certain private and public property a misdemeanor after multiple violations. The law also allows property owners to use deadly force against people who are illegally camping and goes into effect in July.

Grants Pass, a city of about 39,000, along with a large number of cities and states, asked the Supreme Court to hear the case, arguing that a 2018 lower court ruling, Martin v. Boise, prevented cities across the West from responding to the growth of encampments. The 9th Circuit — covering states with some of the highest populations of people experiencing unsheltered homelessness, including California, Oregon and Washington — ruled that homeless people cannot be punished for sleeping outdoors on public property if they don’t have anywhere else to go.

In its appeal to the Supreme Court, Grants Pass argued that the status quo harms local governments, residents and people experiencing homelessness. “Public camping laws” are a “critical (and constitutional) backstop” to halt the growth of encampments, lawyers wrote.

“Even when coupled with offers of shelter and other services, efforts to enforce common sense camping regulations have been met with injunctions.”

The lawyers representing people experiencing homelessness argued that the 9th Circuit ruling did not deprive cities of their ability to clear encampments. Lawyers pointed out that Grants Pass had continued to dismantle encampments throughout the legal proceedings, “as it is free to do.” “That is a policy choice not a judicial mandate,” the lawyers wrote, adding the politicians have “chosen to tolerate encampments” instead of addressing the West’s severe housing shortage.

Jesse Rabinowitz, communications director for the National Homelessness Law Center, said the Supreme Court’s decision empowers cities and states to play a “national game of human Whac-A-Mole and continually do what they were very clear they wanted to do in Grants Pass, which is to push people into another town. We would see that happening on a national level.”

Bob Erlenbusch, a board member for the National Coalition for the Homeless who has advocated for homeless people for four decades, said that since the Martin v. Boise decision, cities have found other ways to criminalize homelessness and clear encampments.

“It’s an everyday occurrence that encampments are swept,” Erlenbusch said, describing city workers in Sacramento, California, who use bulldozers and shovels and in the process destroy belongings. “And that will increase around the country.”

Albuquerque Is Throwing Out the Belongings of Homeless People, Violating City Policy

In an amicus brief in the Grants Pass case, the Western Regional Advocacy Project, an organization led by people with experience living on the streets, described a winter encampment removal in Denver where people lost “food, essential paperwork, sleeping bags, clothing, work tools, medication, identification, blankets, survival gear and more.”

Sara Rankin, a law professor with Seattle University who contributed to the amicus brief and studies the criminalization of homeless people, said the court’s Friday ruling will embolden the dehumanization of unsheltered people. “Cities have always had the ability to sweep and they continue to do that at reckless paces,” she said. “What happens to people? Will people be more harmed as a result? I would say that is a very, very deep concern.”