Fearing a backlash of ruling against homeless
Liberals worry that laws hostile to the unhoused will expand broadly across West.
As the nation’s highest court heard arguments this week in a case expected to shape homelessness policies in the years to come, Los Angeles County Supervisor Lindsey Horvath listened angrily.
The case involved a small Oregon town seeking to rid its streets and parks of encampments, and leaders across California had joined in calling for the Supreme Court to take up the issue, including Gov. Gavin Newsom, San Francisco Mayor London Breed and L.A. City Atty. Hydee Feldstein Soto. But not Horvath. When the Board of Supervisors voted a couple of months ago to throw its support behind Grants Pass, Ore., (population approximately 39,000), Horvath was one of two dissenting votes. While others called for the Supreme Court to clarify whether cities have the right to enact anti-camping policies that restrict those with no shelter from sleeping outside, Horvath warned of unintended consequences.
If the high court were to rule broadly in favor of Grants Pass, which has a policy of fining and arresting homeless people who sleep outside with simple bedding, Horvath said, the precedent could “further enable cities to push people from community to community, without a commitment to housing or services.”
On Monday, after the high court’s conservative justices indicated during oral arguments that they are skeptical of treating homelessness as a status that deserves constitutional protection, Horvath said the future will be bleak if cities are allowed to clamp down by criminalizing poverty.
“Saying that the only way we can get ourselves out of this problem is by citing people for having a blanket on the ground or for daring to sleep on a park bench is absurd — just absurd — and I would also say immoral,” she said. “All we will be doing is
pushing people from one place to another, and we’ve been doing that for decades.”
She’s not the only person alarmed.
The risk, according to Horvath and others, is that the Supreme Court could enable laws hostile to homeless people to expand broadly across the American West, amplifying the frustrating and dangerous proliferation of encampments in cities that are attempting to deal with the problem through supportive services, substance abuse treatment and housing programs.
Supervisor Hilda Solis, the other no vote on the county board, agreed, saying a ruling in Grants Pass’ favor would “open a can of worms.”
Solis said the ruling would be “implemented unevenly” by all the small cities within L.A. County, putting a strain on those that “have stepped up and added shelter beds” to tackle the problem while emboldening those that haven’t made such investments to further “shirk their responsibilities and push their unhoused residents across their borders.”
Shaun Donovan, former Housing and Urban Development secretary under the Obama administration, said he’s bracing for a decision that will further exacerbate what is “already the worst homelessness crisis that we’ve seen in the history of the country.”
“When you fine the very poorest, most vulnerable people in our society, when you jail them, you are actually compounding and perpetuating the underlying problems that can lead to homelessness,” said Donovan, now president and chief executive of Enterprise Community Partners, a national housing nonprofit.
Enabling strict camping bans, Donovan warned, will have “potentially disastrous consequences for cities that are working tirelessly to end homelessness and move people into housing.”
The Grants Pass case has produced strange bedfellows between mainstream liberal leaders in California and conservatives who are hopeful it will usher in a new age of progress, but progressives and other observers such as Horvath and Donovan fear the same California cities that threw their support behind Grants Pass are about to see that decision backfire.
Shifting the problem?
The Grants Pass case began when local homeless people challenged as unconstitutional a pair of city ordinances against sleeping and camping in public parks.
Debra Blake, a then-60year-old homeless plaintiff who died during the litigation, wrote in a 2019 court declaration that she knew hundreds of people who slept outdoors in Grants Pass, about 40 miles north of the California border on the 5 Freeway.
“They have all had similar experiences with the Grants Pass police awaking them, moving them along, ticketing them, fining them, arresting them and/or criminally prosecuting them for living outside,” Blake wrote.
The case wound up before the U.S. 9th Circuit Court of Appeals, and a three-judge panel ruled in September 2022 that the Constitution’s limit on “cruel and unusual punishment” bars criminal penalties for “involuntarily” homeless people using “rudimentary forms of protection from the elements” while sleeping in public.
Local officials said the ruling was a disaster that expanded encampments, with homeless advocates arguing that people have a right to all sorts of materials in cold and inhospitable public spaces, including tents and fires.
Before the Supreme Court on Monday, attorney Kelsi Corkran — representing homeless litigants in Grants Pass — argued that letting the city’s anti-camping ordinances stand would simply turn that city’s “homelessness problem into someone else’s problem by forcing its homeless residents into other jurisdictions.”
Deputy U.S. Solicitor Gen. Ed Kneedler, arguing for the U.S. government, said laws that in effect “banish” homeless people from certain jurisdictions are unjust and unworkable — in part because “if Grants Pass can do this, so could every other city. So could a state do it statewide. And, eventually, a homeless person would have no place to be.”
Justice Sonia Sotomayor, who led the court’s liberal flank in attacking the criminalization of homeless people, struck a similar note.
“Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this? Where are they supposed to sleep? Are they supposed to kill themselves not sleeping?” Sotomayor said.
For observers — including a slew of local municipalities, legal scholars and other stakeholders who submitted their own independent briefs to the court — the case touches on philosophical differences about how to help homeless people.
Timothy Sandefur of the conservative Goldwater Institute argued in favor of Grants Pass and camping bans.
In an interview, Sandefur said camping bans don’t just bounce homeless people from town to town, but often lead them to return to staying with family or friends or get connected to temporary housing or other resources — which is what local governments want.
“When we talk about ‘moving along,’ we sort of have this mental image that people stay in their status forever — that they’re just homeless people, and they just get moved from one place to another their entire lives. And I don’t think that’s true,” he said. “People get filtered into services.”
Donovan and other progressive advocates for the homeless take a different view.
Recent studies of homelessness in California, they say, have shown most homeless people in the state lived here before becoming homeless. While policies that criminalize homeless people do uproot them, Donovan said, it occurs locally and temporarily — and with negative consequences, not positive ones.
Connecting homeless people with services is a great solution, he said, but citations and arrests can make that process more challenging.
“A criminal record makes it harder to find and keep housing, it makes it harder to find and keep a job, it makes it harder to reconnect with family and community members who a person experiencing homelessness may be estranged from,” Donovan said.
If the Supreme Court enables more places to ramp up encampment sweeps, citations, arrests and other penalties, he said, there’s a risk of further spiraling in cities such as L.A. and San Francisco.
“The level of homelessness in a community doesn’t actually go down,” he said. “If anything, it goes up.”
Clarity or crackdown?
When Newsom urged the Supreme Court to take the Grants Pass case last year, he said it was a chance for the conservative court to “correct course” for the entire West.
The more liberal 9th Circuit, Newsom said, had “tied the hands of state and local governments” by issuing vague rulings that invited litigation from homeless people and their advocates every time California jurisdictions tried to address the problem.
“While I agree with the basic principle that a city shouldn’t criminalize homeless individuals for sleeping outside when they have nowhere else to go within that city’s boundaries,” Newsom said, “courts continue to reach well beyond that narrow limit to block any number of reasonable efforts to protect homeless individuals and the broader public from the harms of uncontrolled encampments.”
The city attorneys for L.A. and San Francisco carved out similar positions in interviews with The Times after Monday’s oral arguments.
Feldstein Soto said she and other leaders in big California cities are “all pretty aligned that the answer isn’t to throw a lot of people in jail. That’s not a solution to what is a human tragedy.”
Instead, she said, they are asking the high court for guidance on the sort of “time, place and manner” restrictions that are allowed under the 8th Amendment — yes to blankets but no to fires, for instance — so they can move forward without having to constantly fend off lawsuits.
“If what they do is establish some fundamental principles, we can make sure that our laws comply with whatever principles they establish,” she said.
San Francisco City Atty. David Chiu said he hopes the high court “strikes the right balance” in allowing cities to enact reasonable restrictions without giving them a free pass to throw homeless people behind bars.
He said San Francisco has already invested billions in shelter beds and other resources for homeless people, and the Supreme Court’s decision — whatever it is — won’t change its commitments.
“We hope that there is support for the notion that cities need to have more f lexibility to address the crisis on the streets, but providing us with flexibility is different from letting cities completely off the hook in addressing what is happening,” Chiu said.
Progressive critics said they are extremely worried those leaders aren’t being truthful about their plans ahead.
The 9th Circuit has already allowed for reasonable restrictions on when, where and how homeless people can sleep or build protective structures, the critics said. In fact, both L.A. and San Francisco already have such policies in place — and actively enforce them.
Just as California leaders blamed the 9th Circuit for tying their hands, the critics believe they will point to a Supreme Court decision in favor of Grants Pass as a new legal mandate for harsher crackdowns.
John Do, a senior attorney with the American Civil Liberties Union of Northern California who watched the Supreme Court arguments in person — after sleeping in line outside overnight with a blanket, he noted — represents a coalition of homeless organizations suing San Francisco over its homeless policies in a separate case.
Do, whose case has been stayed pending a Grants Pass decision expected in late June, said every jurisdiction in the country could potentially have a “green light” to arrest homeless people for sleeping in public — and he has no doubt California cities will take the opportunity.
“What we will have is essentially an arms race to the bottom of who can make their jurisdiction the most punitive, the most uncomfortable, with the most cruel and unusual punishments possible,” he said.