Michael Lyle

(Nevada Current) Even though the cities of Las Vegas and Henderson have passed ordinances restricting camping and sleeping in public, some as recently as this summer, they joined other cities this week in asking the United States Supreme Court to make it even easier to enforce laws that crack down on homelessness encampments.

Several Western cities filed an amicus brief on Sept. 25 asking the court to overturn previous rulings by the 9th U.S. Circuit Court of Appeals, whose jurisdiction includes district courts in Nevada, that the cities argue prevent them from ousting homeless camps.

In an email, Jace Radke, a spokesman for the City of Las Vegas, declined to answer specific questions about how court rulings have prevented the city from carrying out encampment removals, saying it was the city’s policy “not to comment on pending or ongoing litigation.”

“The city hopes the U.S. Supreme Court gives clarity and finality —either way— to how cities across the country can or cannot use their police powers to address this issue,” Radke said.

In an email Justin Emerson, a spokesman for the the City of Henderson, said signing on to the brief was about “restoring the City’s full powers to address the homeless crisis” and that signing on “does not hinder its growing efforts to provide housing and resources.”

“There is no question that the two decisions have curtailed powers that cities traditionally had to alleviate homeless issues,” Emerson wrote. “As a result of these decisions, the City took a service-based approach and prioritized connecting unhoused individuals with essential services and resources by creating the (Henderson Homeless Response Team). The City has no current program or directive focused on removals or enforcement and is focusing on the goal of addressing homelessness.”

The 9th Circuit ruled in Johnson v. City of Grants Pass in 2022 in favor of unhoused folks who sought to overturn city ordinances passed in Grants Pass, Oregon, that restricted and fined people for sleeping and camping in public even though there aren’t other places to go.

The court previously ruled in Martin v. City of Boise in 2018 that cities can’t punish people for sleeping on the streets if there were no reasonable shelter alternatives available. The Supreme Court declined to review the case in 2019.

The brief Las Vegas, Henderson and other cities have signed on to, which was written by the Seattle city attorey, argues communities are “at a breaking point” and that the court rulings have “paralyzed local communities,” limited the power of law enforcement to enforce ordinances, and prevented towns from keeping sidewalks clean.

“Homelessness is a complex and serious social issue that cries out for effective legislative responses,” according to the brief. “The Ninth Circuit’s decisions in Martin and Johnson tie the hands of local policymakers and make solving this crisis harder.”

The brief also argues requiring cities to check shelter availability before criminalizing activity is “unworkable.”

“Injunctions like these amount to a forced choice: build more shelter or surrender public spaces,” the brief says.

‘Some level of recourse’

As it has across the United States, homelessness has increased throughout Southern Nevada.

A month before the cities of Las Vegas and Henderson joined the amicus brief, the annual Southern Nevada Point-in-Time Count, which gives a snapshot of homelessness on one particular night, found a 16% increase from the previous year.

The 2023 results found 6,566 unhoused people counted, up from 5,645 the previous year, and estimated 16,251 people would experience homelessness this year.

Southern Nevada lacks an adequate supply of housing, including permanent supportive housing and transitional housing, which are needed to help people exit homelessness or prevent folks from experiencing homelessness in the first place.

As in most metropolitan areas without adequate shelter and housing options, or efforts to rein in rising rents, there has been an increase in homelessness, which has led to more encampments.

Local officials have noted they’ve received concerns, and outrage, from residents and businesses alike.

Citing some of those area concerns, the City of Henderson adopted an ordinance in June to amend and expand its regulations on camping in open spaces to prohibit sleeping outdoors, setting up tents or cooking outdoors.

Before issuing a citation, the ordinance requires law enforcement to notify the person about available shelter beds in Southern Nevada.

If the person refuses shelter or to move, law enforcement can then issue a citation, which comes with a fine up to $1,000, or make an arrest, which includes up to six months in jail.

During its hearing, officials said the ordinance was written to “align with various 9th Circuit Court rulings.”

In an email, Emerson reiterated that the city considered both decisions “and believes that its ordinance complies with all constitutional requirements.”

“The ordinance is not punitive,” he said. “Instead it is a tool that requires staff to make social services connections and seek available shelter in lieu of criminalization.”

Ahead of her vote, Henderson Mayor Michelle Romero said the city’s first priority with the ordinance was still to get people the services they need while balancing efforts to protect public rights of way and businesses.

“What it does do is provide some level of safety or recourse for our business owners … and homeowners,” she said. “It protects our parks and children to make sure strangers aren’t next to our children. It does all of these things while we are still working on other solutions.”

Sleeping, sidewalks, and a dairy

Henderson isn’t the first  Southern Nevada municipality to adopt laws restricting access to public spaces.

The City of Las Vegas also passed an ordinance in 2019 to prohibit sleeping and camping in public right-of-ways but only if shelter beds are available.

The city introduced a similar ordinance the year before to prevent sitting, sleeping or camping on a sidewalk within 1,000 feet of a food processing center – a provision that applied to a single business, Anderson Dairy.

That ordinance targeted activity within the “Corridor of Hope,” an area near downtown Las Vegas where Catholic Charities of Southern Nevada and Salvation Army are also located.

The measure was scrapped the same week as the 9th Circuit’s Boise decision.

The 2019 Las Vegas proposal prompted significant pushback from social services providers and even several Democratic candidates seeking the 2020 presidential nomination,

Radke declined to answer whether the city’s 2019 ordinance’s shelter availability test was “unworkable,” as described by the arguments of the amicus brief filed this week.

He also declined to answer how the court rulings have prevented the city from removing encampments and enforcing laws.

When asked more broadly if the city currently conducts encampment removals and street cleanings, Radke said the city does regular cleanings in public rights of way.

“If there is an encampment in these areas the city notifies the unhoused population that a cleaning will occur so that they have time to move themselves and their belongings before a cleaning occurs,” he said. “City staff provide information about the Courtyard Homeless Resource Center.”

The courtyard is a facility within Corridor of Hope.

In addition to offering access to some services, including housing assessment, bus tickets out of town, and identification retrieval, the open-air courtyard provides a nightly space for sleeping accommodations.

Under the annual homeless count, those sleeping at the courtyard are categorized as unsheltered, the same designation as those sleeping in encampments, vehicles or on the streets.

The city has conducted large scale encampment removals.

The city, along with the City of North Las Vegas and the Nevada Department of Transportation, received pushback in 2020 when a homeless encampment  was cleared out during the height of the pandemic when shelter beds and housing options were scarce.

The removal went against recommendations from the Centers for Disease and Control Prevention.

The Supreme Court has yet to indicate whether it will review the case.