SCOTUS Decision on Homelessness: Highlights

According to the Ninth Circuit, nearly three quarters of Boise’s shelter beds were not “practically available” because the city’s charitable shelters had a “religious atmosphere.” (p. 7)
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Consider San Francisco, where each night thousands sleep “in tents and other makeshift structures.” Brief for City and County of San Francisco et al. as Amici Curiae 8 (San Francisco Brief ). Applying Martin, a district court entered an injunction barring the city from enforcing “laws and ordinances to prohibit involuntarily homeless individuals from sitting, lying, or sleeping on public property.” Coalition on Homelessness v. San Francisco, 647 F. Supp. 3d 806, 841 (ND Cal. 2022).

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That “misapplication of this Court’s Eighth Amendment precedents,” the Mayor tells us, has “severely constrained San Francisco’s ability to address the homelessness crisis.” San Francisco Brief 7. The city “uses enforcement of its laws prohibiting camping” not to criminalize homelessness, but “as one important tool among others to encourage individuals experiencing homelessness to accept services and to help ensure safe and accessible sidewalks and public spaces.” Id., at 7–8. Judicial intervention restricting the use of that tool, the Mayor continues, “has led to painful results on the streets and in neighborhoods.” Id., at 8. “San Francisco has seen over half of its offers of shelter and services rejected by unhoused individuals, who often cite” the Martin order against the city “as their justification to permanently occupy and block public sidewalks.” Id., at 8–9. (pp. 8-9)
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Many cities further report that, rather than help alleviate the homelessness crisis, Martin injunctions have inadvertently contributed to it. The numbers of “[u]nsheltered homelessness,” they represent, have “increased dramatically in the Ninth Circuit since Martin.” Brief for League of Oregon Cities et al. as Amici Curiae on Pet. for Cert. 7 (boldface and capitalization deleted). And, they say, Martin injunctions have contributed to this trend by “weaken[ing]” the ability of public officials “to persuade persons experiencing homelessness to accept shelter beds and [other] services.” Brief for Ten California Cities as Amici Curiae on Pet. for Cert. 2. In Portland, for example, residents report some unsheltered persons “often return within days” of an encampment’s clearing, on the understanding that “Martin . . . and its progeny prohibit the [c]ity from implementing more efficacious strategies.” Tozer Brief 5; Washington Sheriffs Brief 14 (Martin divests officers of the “ability to compel [unsheltered] persons to leave encampments and obtain necessary services”).
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In short, they say, Martin “make[s] solving this crisis harder.” Cities Cert. Brief 3. All acknowledge “[h]omelessness is a complex and serious social issue that cries out for effective . . . responses.” Ibid. But many States and cities believe “it is crucial” for local governments to “have the latitude” to experiment and find effective responses. Id., at 27; States Brief 13–17. “Injunctions and the threat of federal litigation,” they insist, “impede this democratic process,” undermine local governments, and do not well serve the homeless or others who live in the Ninth Circuit. Cities Cert. Brief 27–28. (p. 10)
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In fact, the court ruled, none of the beds at Grants Pass’s charity-run shelter qualified as “available.” They did not, the court said, both because that shelter offers something closer to transitional housing than “temporary emergency shelter,” and because the shelter has rules requiring residents to abstain from smoking and attend religious services. Id., at 179a–180a. The Eighth Amendment, the district court thus concluded, prohibited Grants Pass from enforcing its laws against homeless individuals in the city. Id., at 182a–183a. (p. 13)
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Is a bed “available” to a smoker if the shelter requires residents to abstain from nicotine, as the shelter in Grants Pass does? 72 F. 4th, at 896; App. 39, Third Amended Complaint ¶13. Is a bed “available” to an atheist if the shelter includes “religious” messaging? 72 F. 4th, at 877. (p. 28)
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There is uncertainty, as well, over whether Martin requires cities to tolerate other acts no less “attendant [to] survival” than sleeping, such as starting fires to cook food and “public urination [and] defecation.” Phoenix Cert. Brief 29–30; see also Mahoney v. Sacramento, 2020 WL 616302, *3 (ED Cal., Feb. 10, 2020) (indicating that “the [c]ity may not prosecute or otherwise penalize the [homeless] for eliminating in public if there is no alternative to doing so”). (p. 29)
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Doubtless, the Ninth Circuit’s intervention in Martin was well-intended. But since the trial court entered its injunction against Grants Pass, the city shelter reports that utilization of its resources has fallen by roughly 40 percent. See Brief for Grants Pass Gospel Rescue Mission as Amicus Curiae 4–5. Many other cities offer similar accounts about their experiences after Martin, telling us the decision has made it more difficult, not less, to help the homeless accept shelter off city streets. See Part I–B, supra (recounting examples). Even when “policymakers would prefer to invest in more permanent” programs and policies designed to benefit homeless and other citizens, Martin has forced these “overwhelmed jurisdictions to concentrate public resources on temporary shelter beds.” Cities Brief 25; see Oregon Cities Brief 17–20; States Brief 16–17. As a result, cities report, Martin has undermined their efforts to balance conflicting public needs and mired them in litigation at a time when the homelessness crisis calls for action. See States Brief 16–17. (p. 30)
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All told, the Martin experiment is perhaps just what Justice Marshall anticipated ones like it would be. The Eighth Amendment provides no guidance to “confine” judges in deciding what conduct a State or city may or may not proscribe. Powell, 392 U. S., at 534. Instead of encouraging “productive dialogue” and “experimentation” through our democratic institutions, courts have frozen in place their own “formulas” by “fiat.” Id., at 534, 537. Issued by federal courts removed from realities on the ground, those rules have produced confusion. (p. 30)
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Rather than address what we have actually said, the dissent accuses us of extending to local governments an “unfettered freedom to punish,” post, at 25, and stripping away any protections “the Constitution” has against “criminalizing sleeping,” post, at 5. “Either stay awake,” the dissent warns, “or be arrested.” Post, at 2. That is gravely mistaken. We hold nothing of the sort. . . . Nor does the dissent meaningfully engage with the reasons we have offered for our conclusion . . . (p. 31)
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The dissent suggests we cite selectively to the amici and “see only what [we] wan[t]” in their briefs. Post, at 24. In fact, all the States, cities, and counties listed above (n. 3, supra) asked us to review this case. Among them all, the dissent purports to identify just two public officials and two cities that, according to the dissent, support its view. Post, at 24–25. But even among that select group, the dissent overlooks the fact that each expresses strong dissatisfaction with how Martin has been applied in practice. See San Francisco Brief 15, 26 (“[T]he Ninth Circuit and its lower courts have repeatedly misapplied and overextended the Eighth Amendment” and “hamstrung San Francisco’s balanced approach to addressing the homelessness crisis”); Brief for City of Los Angeles as Amicus Curiae 6 (“[T]he sweeping rationale in Martin . . . calls into question whether cities can enforce public health and safety laws”); California Governor Brief 3 (“In the wake of Martin, lower courts have blocked efforts to clear encampments while micromanaging what qualifies as a suitable offer of shelter”). And for all the reasons we have explored and so many other cities have suggested, we see no principled basis under the Eighth Amendment for federal judges to administer anything like Martin. (footnote on pp. 30-31)
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To be sure, the dissent seeks to portray the new rule it advocates as a modest, “limited,” and “narrow” one addressing only those who wish to fulfill a “biological necessity” and “keep warm outside with a blanket” when they have no other “adequate” place “to go.” Post, at 1, 5, 10, 21, 24. But that reply blinks the difficult questions that necessarily follow and the Ninth Circuit has been forced to confront: What does it mean to be “involuntarily” homeless with “no place to go”? What kind of “adequate” shelter must a city provide to avoid being forced to allow people to camp in its parks and on its sidewalks? And what are people entitled to do and use in public spaces to “keep warm” and fulfill other “biological necessities”? (pp. 32-33)

On Homelessness & Soup Kitchens (by my Son Michael: 19) [9-10-12]

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More Thoughts on Giving Alms to Homeless Beggars on the Street [11-23-13]

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Dialogue: Conservatives & “Old” Pro-Lifers & the Poor [10-3-16]

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Debate: Do Liberal Social Policies Lessen Abortion & Poverty? [4-12-17]

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This “Conservative” is Very Passionate About Social Justice [8-31-17]

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Random Thoughts on Homelessness [Facebook, 7-4-24]
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Photo Credit: Christopher Michel (5-25-20). Homeless encampment in San Francisco [Wikimedia Commons / Creative Commons Attribution 2.0 Generic license]

Summary: Highlights from the Supreme Court case regarding homeless encampments: City of Grants Pass, Oregon v. Johnson Et Al, from the decision written by Justice Gorsuch.