Will we finally be free of the tent encampments?
There might be some good news on the horizon about the homelessness crisis in California and the other western states in the Ninth Circuit.
The U.S. Supreme Court has been asked to hear a case from Oregon that could clarify the muddy mess that the Ninth Circuit Court of Appeals made with its creation of a right to camp on public property if the local government doesn't offer an adequate number of acceptable shelter beds.
Think back to a time when there were no tent encampments. Remember when the sidewalk crisis meant tree roots and repair costs?
When did it change, and why? Could the Oregon case change it back?
It first became legal to camp on the sidewalks throughout the city of Los Angeles when the ACLU sued L.A. over Municipal Code section 41.18(d), which read, “No person shall sit, lie or sleep in or upon any street, sidewalk or other public way,” unless they were attending a parade.
The case went to the Ninth Circuit Court of Appeals and Los Angeles lost. The court said section 41.18(d) was “one of the most restrictive laws regulating public spaces in the United States,” and decided that it violated the Eighth Amendment's prohibition on cruel and unusual punishment.
Los Angeles officials could have altered the law to make it narrower in scope, or they could have appealed the ruling to the U.S. Supreme Court. Instead, Los Angeles settled the case, and this was the settlement: the city agreed not to enforce the ban on sleeping on the sidewalk anywhere in Los Angeles between the hours of 9:00 p.m. and 6:00 a.m. until another 1,250 units of housing for the chronically homeless were constructed, including at least 625 in the Skid Row area.
You know the rest. It was 2007 when the city agreed to the Jones v. Los Angeles settlement. That's when tent encampments began to spread throughout the city.
Even though city officials didn't agree to allow tents on the sidewalks during the day, that's the way it worked out.
In a settlement, each side supposedly gets something in the deal. What did Los Angeles get in exchange for stopping all enforcement of its ordinance against sleeping on the sidewalk?
The Ninth Circuit's opinion in the Jones vs. Los Angeles case, the one that said the municipal ordinance violated the Eighth Amendment, was vacated. That meant it could not be cited as a precedent in the future.
But in fact, the city of Los Angeles got nothing in the settlement, because in 2018 the Ninth Circuit issued an opinion in a case known as Martin v. Boise, also on the issue of enforcing a ban against public camping. The judges repeated the reasoning from the Jones v. Los Angeles case to arrive at their decision.
The city of Boise did appeal to the U.S. Supreme Court, but the justices declined to hear the case, so the ruling in Martin v. Boise is the binding law of the land in the states located within the Ninth Circuit: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. And this was the ruling: in all these states, local governments may not enforce a ban on public camping unless they have enough shelter beds for everyone who needs one.
More lawsuits were filed against more cities, and the law got muddier. What counted as available shelter? What about beds in faith-based shelters? (No, those did not count.) What about shelters that couldn't accommodate pets? Or couples? Or bulky items? (Los Angeles settled another lawsuit related to bulky items, agreeing to allow an unlimited amount of property to be stored on the sidewalk.)
In southern Oregon, the city of Grants Pass, population 38,000, had three ordinances that prohibited camping on public property with stoves, fires and bedding. Violators were given a civil citation. There were no criminal charges.
Three homeless individuals sued Grants Pass over those ordinances, and the case eventually landed in the Ninth Circuit. The appeals court ruled against the city, expanding the Martin v. Boise precedent to prohibit both criminal and civil penalties for camping on public property unless sufficient shelter beds were available. Since a city has no control over how many people arrive on any given day, it's entirely possible that no city anywhere will ever have more shelter beds, as defined, than people who need them, as defined. Where does that leave the cities?
It leaves them in trouble. The lawyers for Grants Pass wrote in their petition to the Supreme Court, “Cities want to help those in encampments get the services they need while ensuring that our communities remain safe, but they find themselves hamstrung in responding to public encampments and the drug overdoses, murders, sexual assaults, diseases, and fires that inevitably accompany them.”
Last week, the attorneys general of Idaho, Montana and 18 other states urged the Supreme Court to hear the case. “Families can no longer walk the streets of Portland, San Francisco, and Seattle in safety,” they wrote. “These cities used to be beacons of the West, but their sidewalks are now too dangerous to visit.”
Even California Governor Gavin Newsom filed a brief supporting Grants Pass. In a statement released by his office, Newsom said the courts have blocked “any number of reasonable efforts to protect homeless individuals and the broader public from the harms of uncontrolled encampments.”
The Supreme Court could decide to hear this case and overrule the Ninth Circuit, returning to state and local governments the ability to enforce reasonable and necessary laws to protect public health and safety, and to maintain public spaces for their intended use by the general public.
And then the era of tent encampments will quickly become one of those stories from the past that your grandchildren will never believe.