Edvard Peterson

LOS ANGELES (CN) — Dozens of cities in the western U.S., including Los Angeles, San Francisco and Phoenix, this week asked the U.S. Supreme Court to weigh in on a decision by the Ninth Circuit that makes it all but impossible to enforce ordinances against homeless camps the cities say are a public health and safety menace.

An unlikely combination of liberal stalwarts, such as California Governor Gavin Newsom; Republican lawmakers from Arizona; conservative legal activists; and business and homeowner advocates filed amicus briefs imploring the Supreme Court to take up the Ninth Circuit's ruling last year that barred imposing even civil penalties against homeless people violating anti-camping ordinances as long as there were more homeless in a municipality than shelter beds.

In a split decision, the federal appellate court ruled that the anti-camping ordinances that Grants Pass, Oregon, sought to enforce amounted to a violation of the Eighth Amendment prohibition on cruel and unusual punishment. Last year's Ninth Circuit ruling expanded the court's 2018 ruling in a lawsuit against Boise, Idaho, which had concluded that the city couldn't prosecute homeless people sleeping outside if there weren't enough shelter beds.

The 2018 so-called Martin decision, according to the amici briefs, opened the floodgates to lawsuits seeking to enjoin cities from enforcing anti-camping ordinances against homeless people. Last year's Grants Pass ruling not only prohibited civil citations of homeless people violating these ordinances, but also allowed such cases to proceed as class actions, which adds to the potential liability of cities that seek to clean up homeless camps.

Newsom, in his filing with the Supreme Court, stressed that he wasn't taking issue with the "narrow rule" adopted by the Ninth Circuit in the Martin case that people experiencing homelessness shouldn't face criminal penalties for sleeping outside when they have nowhere else to go within a municipality.

However, according to the California governor, lower court judges have interpreted Martin far more broadly than that, and last year's Ninth Circuit decision not only didn't correct these interpretations, it expanded Martin by authorizing the use of class-wide injunctions without considering whether the individuals involved truly have nowhere else to go.

"Since Martin, courts have rebranded that narrow holding into a far broader set of proscriptions on government action," Newsom said, citing examples from San Francisco, Los Angeles and Santa Barbara. "The practical result is that the fate of any given effort to manage homelessness turns not on the wisdom of the project but on an assessment of an application for a temporary restraining order."

Cities such as Phoenix have found themselves trapped between the Ninth Circuit's holdings and state court rulings in lawsuits by residents and businesses forcing them to clean up homeless camps that they say have become a public nuisance.

Whereas an Arizona state court judge overseeing a nuisance lawsuit by local residents this month ordered Phoenix to clean up a sprawling downtown homeless camp, "the zone," by November, a federal judge in a lawsuit brought by the American Civil Liberties Union has ordered the city not to move the homeless if it can't provide them shelter.

The City of Los Angeles, with about 46,000 homeless people, said in its brief with the Supreme Court that it also agrees with the broad premise underlying the Ninth Circuit decisions that, when a person has no other place to sleep, spending the night in a public space should not be a crime leading to an arrest, criminal conviction or jail.

At the same time, the city said, the Ninth Circuit has made it impossible to balance the needs of the homeless with those of other residents and businesses. Lawyers for the city said a real risk of "lawlessness, illness, and threats to public health and safety exists, to the detriment of unhoused and housed residents alike."

In addition, LA's lawyers said, the Ninth Circuit directive that anti-camping laws can only be enforced if there are enough shelter beds for all the homeless in the city is an impossible standard and is irrelevant when determining whether a bed is available for a particular person.

The Supreme Court declined to review the 2018 Martin decision in spite of the amici briefs filed by some of the same cities that this week asked the court to take up the Grants Pass ruling. A total of two dozen amici briefs were filed this week, representing hundreds of cities and other stakeholders. The court may decide as early as December whether to review the ruling.

“As hundreds of amici have made clear in two dozen briefs filed in the Supreme Court, the Ninth Circuit’s decisions in this case and Martin v. Boise have contributed to the growing problem of encampments in cities across the West," said Theane Evangelis, one of the attorneys representing Grants Pass. "These decisions are legally wrong and continue to tie the hands of local governments in their efforts to devise solutions to the complex problem of homelessness. The tragedy is that these decisions are actually harming the very people they purport to protect."

While the problem of homelessness is complicated, the question before the Supreme Court amounts to whether local anti-camping ordinances are cruel and unusual punishment when applied to people who are homeless involuntarily. Some of cities that briefed the court raise the contentious issue of whether everyone camping is there involuntarily.

For example, the League of Oregon cities said that between May 2022 and July 2023, Portland made 3,399 offers of shelter beds to homeless people and was declined 2,560 times. That amounts to a rejection rate of 75%.

Eric Tars, senior policy director with the National Homelessness Law Center, scoffed at the idea that homeless people preferred to camp on the streets rather than in what he called safe and dignified housing. According to Tars, during the pandemic, when many cities used empty hotel rooms to house the unhoused, more than 90% of homeless people accepted those offers.

"If the only way to get people to accept a shelter bed is under threat of arrest, that says something about the shelters," Tars said.

He said that homeless people are often offered shelters that aren't appropriate for them, whether because of their age or their need to go to work during curfew hours. Tars noted that there are many unhoused people with jobs who try to avoid the appearance of being homeless.

Attorneys for the plaintiffs in the Grants Pass case waived their right to file a response to the city's petition for the Supreme Court to take up the case.

"There is a universe of difference between what is being said about the opinion and what the opinion says," said Ed Johnson, director of the Oregon Law Center, which brought the lawsuit. "The opinion is exceedingly narrow and puts no limits whatsoever on a city’s ability to prevent permanent or even established encampments.”

Johnson continued: “Allowing cities to criminalize their citizens who have been forced into homelessness will not help anyone get housed. It will make matters worse by destabilizing people trying to get off the street and will waste money that could have been used on real solutions.”