The United States Supreme Court recently granted certiorari in one of the most important cases for local governments, particularly on the West Coast, in recent memory: Grants Pass v. Johnson. At issue is whether cities and counties may enforce generally applicable laws regulating camping on public property. Such laws include “sit-lie” ordinances that prohibit sitting or lying down on sidewalks and other public ways.
Homeless[1] camping in publicly owned property like parks and on public rights of way like sidewalks is a longstanding problem for many municipalities. Tent encampments have become especially ubiquitous in West Coast cities like Portland, Seattle, San Francisco, San Diego, and Phoenix. Many factors play a role, including the high cost of housing in many of these metro areas, the region’s generally temperate climate (Phoenix in the summer notwithstanding), and the permissive approach taken by many local and state governments to camping. Of course, these factors are merely scaffolding on top of the underlying political economy of the United States, a system in which there is no firm guarantee of adequate housing, health care, or employment for residents. Those who fall on hard times or into the throes of addiction or mental illness can quickly find themselves spiraling downward towards unemployment and homelessness. Programs that intervene at that point are often too late to get people back into the work force or stable housing.
Given the harsh reality of American economic life for many, municipal ordinances that have the effect of criminalizing homeless persons’ acts of existence and survival can seem heartless. For this reason, homeless advocates have fiercely resisted municipal efforts to ban pitching a tent or sleeping in public or even on private property. State chapters of the ACLU have been particularly vigorous in their advocacy against such measures.
In the Ninth Circuit, such advocates found a sympathetic and powerful ear. A panel of that court held in 2018 that it would violate the Cruel and Unusual Punishments Clause of the Eighth Amendment of the United States Constitution for Boise to enforce its public camping ban against homeless persons within its jurisdiction without also demonstrating that there were enough shelters beds available for such persons in its city limits. Such enforcement, the court said, would criminalize the status of homelessness as much as or more than criminalizing any particular act, and the United States Supreme Court had decided in the early 1960s that status crimes — criminalizing one’s existence — violated the Eighth Amendment.
The Supreme Court declined certiorari in Boise. Boise thus became the law of the Ninth Circuit, making it difficult for states and localities to enforce camping bans. Other factors played a role in certain states. In Oregon, for instance, a state court found Portland’s sit-lie ordinance preempted by state law even before Boise, and the legislature functionally codified Boise in 2021, with proponents of the legislation arguing that the Ninth Circuit decision compelled its passage.
The effort to overturn or at least reconsider Boise, however, has been monumental. Not just “conservative” governments like Idaho, but also states like California and civic organizations with wide bases of support like the League of Oregon cities have supported the effort. These organizations have seen the harm wrought by Martin, including on other users of public property like the general public, cyclists on bike trails, wheelchair users on sidewalks, persons pushing strollers, and more. In Portland, for instance, several plaintiffs sued under the Americans with Disabilities Act alleging that tent encampments blocked their ability to use sidewalks. The settlement resulted in the removal of over 1400 campsites, but it does not include a guarantee of clear sidewalk access in all places at all times.
The Boise precedent and arguments in favor of the respondents in Grants Pass demonstrate the continued and costly appeal in certain contexts of what Yale (then-Chicago) Law professors Dan Kahan and Tracey Meares years ago called “an anachronistic and unduly abstract understanding of political rights.” Kahan and Meares objected to the ACLU and others’ ultimately successful attack on Chicago’s 1992 anti-gang-loitering ordinance. Kahan and Meares criticized the courts for focusing too much on the procedural rights of the individual and too little on the social and political contexts in which the ordinance was enacted. Offering an analysis that lands quite differently post-2020, Kahan and Meares argued that the lower courts’ jurisprudence was rooted in an antiquated conception of racial groups’ power, and took little notice of changes underlying Chicago’s passage of the ordinance.
Like Chicago's anti-gang ordinance, anti-camping ordinances similarly present a conflict between collective welfare and individual rights in an (often) urban setting, although the racial dynamics of the politics underlying them and the potential for disparate impact on certain populations vary among the many cities and states affected by Boise. The conflict takes on a slightly different flavor here in that the homeless rights asserted lie at the border of negative and positive rights. If the government cannot arrest a homeless person for camping on a sidewalk without offering adequate shelter, it is therefore obliged to recognize, to some extent, the person’s right to shelter somewhere.
The U.S. Constitution is notorious for containing few if any positive rights; it is largely a creature of its Enlightenment era and pays no heed to the individual’s need for adequate shelter. Given the lack of adequate housing funding at the federal, state, and local levels, the temptation to use the Eighth Amendment as a vehicle for creating a backdoor right to shelter is strong. But one need look only to the tragic Johannesburg fire in August for an example of unintended consequences from inadequately funded or awkwardly implemented positive rights. This it not to say that positive rights can’t work, but letting public spaces be taken over and sometimes debased may not be the best way to do it, and can often harm the very persons sought to be protected.
On this issue, when the local governments are speaking with such a strong and united voice, the Court may listen to what they have to say.
[1] I use the term "homeless" although other terms, such as unhoused, unsheltered, and houseless, are gaining currency and have much to recommend them.
The cover image for this post, "Northeast Portland homeless camp tents" by Graywalls, is licensed under CC BY-SA 4.0.