‘Criminal for existing’: US’s unhoused still fear sweeps as supreme court to take on shelter case
In mid-January, the US supreme court agreed to reconsider the case Grants Pass v Johnson. In doing so, it could overturn a previous decision, Martin v Boise, which ruled that cities cannot punish unhoused people for violating anti-camping policies when there are no alternatives available.
That has left elected officials, advocates and, not least of all, homeless people themselves wondering whether a future high court decision will give cities more power to clear homeless settlements or if cities’ responsibilities to provide for unhoused residents will be clarified.
The Grant Pass case originated in 2019, when Debra Blake was cited for illegal camping by the Oregon city, despite there being no shelter space. She was convicted, fined $590 and soon became the lead plaintiff in a classaction lawsuit. A three-judge panel of the ninth circuit sided with the plaintiffs and, as precedent, used 2018’s Martin v Boise.
That decision came at the end of a long process that began in 2009, after six homeless individuals received citations for violating an ordinance in Boise, Idaho, against sleeping outside. After years of the case getting kicked up and down the system, the ninth circuit ultimately decided that by enforcing the ordinance when no shelter space existed, Boise violated eighth amendment rights over “cruel and unusual punishment”. Grants Pass has been the latest attempt at undoing this result.
But despite the perception of Martin v Boise being a game-changer decision, its actual on-the-ground effects have been unclear.
“[Martin v Boise] has had a huge impact,” said Eric Tars, legal director for the National Homelessness Law Center. He was a lawyer on the Boise case. “And, you know, not that huge of an impact,” in stopping the pace of sweeps and ensuring stable housing for those in need.
When the ninth circuit court of appeals issued Martin v Boise – stating that cities can’t enforce sit/lie ordinances, including encampment sweeps, on public land no shelter space is open – many homeless advocates felt that the horrors of bulldozed makeshift settlements would somewhat be mitigated. While the eight other states governed by the ninth circuit – Alaska, Arizona, California, Hawaii, Montana, Nevada, Oregon and Washington – quickly paused their enforcement of similar ordinances, that didn’t always
happen in cities, even within those states.
In Oakland, California, residents of homeless encampment still fear the sounds of an imminent housing sweep.
Freeway, who goes by the single name and has been living in Oakland encampments for the past six years, specified one particularly terrifying noise: “That beeping sound of an excavator or bulldozer. That sound is so triggering. That is the stuff of our nightmares.”
While some jurisdictions mandate that encampments be given advance warnings before a sweep, this doesn’t always occur. Often the beeps, usually before sunrise and before any resistance can mobilize, are the first indication. Next come the police officers, chaperoning other city workers and giving encampment residents an hour to collect their belongings. Whatever they can’t carry or transport goes into the trash compactor.
“You start trying to prioritize what you need,” said Freeway, who has been on the receiving end of too many sweeps to count. “You try to pull yourself together and figure out what’s important. And the entire time you’re doing this, there’s a good chance the police officers are going to harass or antagonize you.”
Encampment sweeps like these can destroy a person’s shelter, transportation, vital medicine, important documents and treasured, irreplaceable heirlooms. Bulldozers can crush pets or even neighbors who dont’t get out of their tents in time. They shatter support systems that have been cultivated during the camp’s existence, another round of state dehumanization. “It’s like being told you’re a bad person for existing,” Freeway said. “That you’re a criminal for existing.”
John Janosko, who has lived in Oakland his whole life and most recently at the Wood Street encampment, has experienced eviction before and after Martin. He said that any differences between now and then are negligible. “When we had evictions before, they were just as horrible. Nothing has changed. None of what that law set down is being implemented. It hasn’t slowed anything down.”
But in other regions governed by the ruling, Martin may have had notable effects for those experiencing homelessness. Jill Bonny, executive director of The Poverello Center, a Missoula, Montana, non-profit, said Martin was instrumental in getting people off the streets, especially during the cruel, deadly winters. “Pre-Martin, we struggled every year to be able to find a place for the overflow of our regular shelter,” Bonny said. “But after, we saw that became a priority with the local municipality.”
Missoula may have been better able to handle the overflow due to the relative small size of its unhoused population. While the most recent count of Missoula’s homeless population found 541 individuals, San Francisco counted nearly 8,000 people and Los Angeles county counted 75,518. But on a broader level, this reallocation of resources, from enforcement toward adding shelter capacity, was one of the lawsuit’s intended effects.
“At the state level, California started putting significant new money into housing and homeless services, and in some ways, shifting towards those constructive solutions is what we were hoping for,” said Tars. “But in other ways, rather than spending money on getting people housed, communities spent money on attorneys to figure out how to continue doing the same thing, but in a constitutional way.”
Multiple sources said that municipalities have been known to leave one or two shelter beds open – or simply add an extra “bed” in a cramped space like a closet or storage area – for the explicit purpose of allowing cities to continue sweeps.
Other attempts by cities to skirt the new requirements have been more brazen. In 2021, following a lawsuit over ordinance enforcement in Chico, California, when there weren’t enough shelter beds, the city tried to pass off “an asphalt tarmac without a roof, walls, water, or electricity” as adequate shelter. A court eventually rejected this attempt.
“There’s this term ‘service-resistant’ that a lot of cities have been using to criminalize folks further,” said Jaz, who has been in Oakland since 2020, and lived in one of the largest encampment evictions in Bay Area history. “That you’re choosing to be houseless, that you’re no longer unhoused because of systemic circumstances. But in reality, the services they’re offering just recycle people through programs, and they get to make a little money off our bodies until we’re returned to the streets, more houseless than we were when we first went in.”
If the municipalities spread out over the ninth circuit’s domain have been waging a piecemeal resistance to counter the responsibilities of Martin, many have publicly stated their hopes.
Following the appeal, some elected officials and business owners urged the supreme court take up the case. The list of supporters is a wide ideological mix. The San Francisco mayor, London Breed, and the California governor, Gavin Newsom, have already expressed a desire for the court to reverse course. In addition to them, a libertarian thinktank, a secretive Pac that has succeeded in recalling elected officials and the Los Angeles chamber of commerce have weighed in.
But perhaps the big question concerning Martin isn’t whether it should remain as is. While some municipalities want it overturned so they can sweep without restraint, advocates see the fight as an opportunity for the court to define their rights. “One of the problems is the language isn’t clear enough to actually support unhoused people in a fundamental way,” Jaz said. “It doesn’t say that state violence is inherently wrong and shouldn’t happen, period. It just says the state violence shouldn’t happen under these conditions.”
Michael McConnell, a homeless advocate and journalist based in San Diego, said: “It’s more than just worth defending, it needs to be clarified to what they mean by adequate shelter beds.” In San Diego, he added, “Four out of five who are requesting shelter beds get turned away. Some of it is suitability because a lot of our beds are bunk beds, so you can’t put old people or people with disabilities on them.”
Bonny, the Montana non-profit leader, said: “There’s so much energy going into how do we overturn this. I feel like if we put this much energy into finding housing solutions, maybe we can get somewhere.”