WA leaders praise, fear Supreme Court's homelessness ruling

Seattle City Attorney Ann Davison cheered Friday’s U.S. Supreme Court decision that chipped away at a limited set of protections for homeless people living outside on the West Coast.

The court ruled that it is not cruel or unusual punishment to fine or jail homeless people for sleeping outside in public places. The ruling, while in theory only applying to cities under the 9th Circuit Court’s purview, sends a message across the country that elected officials have significant leeway in determining how and when to clear people living in public places, regardless of whether there is enough affordable housing or available shelter.

In the past year, dozens of elected officials from the West Coast had written letters petitioning the Supreme Court to hear this case. Many view punishment or the credible threat of it as a necessary tool to coerce homeless people occupying public spaces to move into shelter or at least move somewhere else.

Davison was one of those officials, arguing that cities and counties need to be able to determine how to deal with homeless encampments on their own, without federal protections for those living outside.

“Today’s ruling makes it clear that determining policy to address homelessness is a task for locally elected leaders,” Davison wrote in a statement after the decision. “Supporting people who are homeless is a crucial responsibility we all bear. At the same time, we cannot ignore the impact of encampments on our communities.”

Davison is one of the only elected Republicans in King County, but she wasn’t alone in her support of an overturn. Several Democratic officials, including King County Executive Dow Constantine, praised the ruling Friday. Meanwhile, some progressives and people who work with homeless people fear this will clear the way for increasingly draconian policies.

“The answer to fixing homelessness is housing,” said Metropolitan King County Councilmember Teresa Mosqueda, who described the ruling as being “on the wrong side of history.” “The answer to homelessness is not criminalizing sleeping outside — especially when there is no suitable shelter available — which only makes it harder to house and care for people when services do become available.”

The Supreme Court’s ruling overturned Grants Pass v. Johnson, a 2021 decision by the U.S. Court of Appeals for the 9th Circuit. It is closely related to Martin v. Boise, a similar case from 2018. Martin v. Boise set the precedent that cities could not fine or arrest people for sleeping outside if there was nowhere else for them to go, causing many cities to ensure shelter beds were open before clearing people from encampments. 

Grants Pass extended that to allow people to use “rudimentary protections from the elements” like a blanket or pillow.

In his opinion for the majority, Supreme Court Justice Neil Gorsuch wrote that fining homeless people for camping in public and jailing repeat offenders did not qualify as cruel because the punishment is not designed to cause “terror, pain, or disgrace” and it was not unusual because such punishments are common across the country.

He said that the Supreme Court should not dictate how individual jurisdictions handle problems with housing and homelessness.

In Washington and other states, it’s not clear yet what policies cities might pursue. Seattle Mayor Bruce Harrell’s office wrote that the Supreme Court’s decision would not change the city’s approach to resolving encampments. 

“Our approach to resolving encampments is based on data, best practices, and our values,” Callie Craighead, a spokesperson for his office, wrote in a statement.

Legal experts expect that court battles over constitutionality will only escalate.

Sara Rankin, a homelessness law expert at Seattle University, said she expects the Supreme Court decision to spur both a reaction and a counterreaction. 

“It’s likely to embolden cities to take more punitive action,” Rankin said. “And you may end up seeing something of a spike in litigation and pushback against these bans.”

The Supreme Court decision precludes lawsuits from being argued on the basis of the Eighth Amendment’s prohibition of cruel and unusual punishment. However, Rankin said, there are other legal avenues to attack punitive measures against homeless people. For example, most states have their own version of the Eighth Amendment.

Three homeless people and the nonprofit Seattle/King County Coalition on Homelessness filed a lawsuit against Burien for its camping ban in January citing Washington’s Constitution, which prohibits cruel punishment.

That ban, which is one of the most restrictive in the state, is currently unenforced because the King County sheriff has asked a federal judge to determine whether it conflicts with Martin v. Boise. The coming days will determine whether that is still a relevant question.

Jazmyn Clark, a program director at the ACLU of Washington, said the state’s version of the Eighth Amendment “offers greater protections than the federal one.” 

Washington’s courts have ruled before on the rights of homeless people — as recently as 2023, when the state Supreme Court ruled Seattle was using an overly broad definition of an “obstruction” to remove homeless people without offering them shelter. 

A number of cities have lost lawsuits for punishing homeless people after offering a shelter bed that was deemed not practically available.

While some cities, including San Francisco, have had full stops of their encampment clearings based on interpretations of Martin v. Boise and Grants Pass v. Johnson, most places have been able to keep clearing encampments. 

In 2022, Seattle removed 800 encampments, similar to the number before the pandemic. In 2023, that number more than doubled to 2,100 removals. The city says much of that is a focus on keeping the same areas clear.

So while King County officials cheered the Supreme Court’s ruling for freeing up options, they also seemed to support what Martin v. Boise posited when it was decided: that, before arresting people, governments should make safe places for them to sleep if they cannot afford housing where they live.

Constantine, the county executive, said governments should not criminalize the basic human act of sleeping in public when no other options exist, but he expressed support for the Supreme Court decision, which he said cleared up some practical difficulties and unintended consequences created by the 9th Circuit’s decisions in Martin v. Boise and Grants Pass v. Johnson.

King County Councilmember Reagan Dunn said the decision is a tool in allowing local jurisdictions to manage their populations of people sleeping outside, but also reiterated what many cities were doing when protections were in place.

“I believe the thoughtful approach is only to enforce a ban if there is space available at a nearby homeless shelter,” Dunn said.

U.S. Supreme Court Justice Sonia Sotomayor wrote in her dissenting opinion that the Supreme Court’s ruling “leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.”

The King County Regional Homelessness Authority’s acting CEO, Hedda McClendon, said she and others working in the space were “devastated.”

“There is just a basic human right and need that this decision is ignoring,” McClendon said. “I absolutely am concerned what will happen locally in communities when the public really wants to lean into what currently is an allowable law to criminalize people living unhoused.” 

Local activists and people working in homelessness services fear the worst.

“This ruling opens the door to cruel, expensive and ineffective laws,” said Alison Eisinger, executive director of the Seattle/King County Coalition on Homelessness.

Chloe Gale, vice president of policy at REACH, a homelessness outreach organization, said her staff fears a “race to the bottom” where cities compete to create the most repellent policies that aim to push homeless people into neighboring cities.

“I’m worried that local jurisdictions can make different decisions to create more hostile environments for people living outside, which will really just continue to displace them and move [them] around,” Gale said.

Meanwhile, Lisa Daugaard, co-executive director of Purpose Dignity Action, a homelessness and public safety organization, said these legal battles over cities’ punitive measures distract from what is actually necessary to address and solve homelessness.

“We have known for a long time that what we need to do as a matter of public policy goes far beyond anything the Constitution requires,” Daugaard said.