US top court tackles homelessness crisis

David G. Savage, Tribune News Service

Homelessness has often been cited as the most intractable problem for cities in the West, and it has grown worse in the last decade.

Since 2007, the states with the largest increases in the number of people “experiencing chronic patterns of homelessness” were California, Washington, Oregon, Nevada and Hawaii, according to last year’s “annual homelessness assessment report” by the U.S. Department of Housing and Urban Affairs.

“California accounts for nearly six in 10 of all unsheltered individuals experiencing chronic patterns of homelessness in the United States,” the report said. HUD reported that the largest decreases in homelessness during that period were in two warm-weather states: Texas and Florida.

Experts and advocates disagree on why homelessness is worse in the West. Many point to the high cost of housing.

But city and state attorneys also point to differences in state laws.

The 9th US Circuit Court of Appeals, whose jurisdiction covers nine states in the West, has recognized constitutional protections for those who are homeless and have no place to sleep. It remains the only federal appellate court in the nation to do so.

In a series of rulings, the 9th Circuit has held that cities and their police violate the 8th Amendment’s ban on cruel and unusual punishment when they arrest or fine people who have no access to shelter.

The 9th Circuit first invoked this rule in 2006 to protect people sleeping on the sidewalks of Skid Row in Los Angeles, and has since extended that doctrine to strike down anti-camping ordinances from Boise, Idaho, and Grants Pass, Ore.

The Supreme Court will hear an appeal Monday in Grants Pass vs. Johnson.

The 8th Amendment prohibits certain methods of punishment for a crime. For example, the court ruled in 2005 that imposing the death penalty on a youth under age 18 was cruel and unusual punishment.

In a 1962 case from Los Angeles, the Supreme Court ruled for the first time that labeling some things as a “crime” may itself constitute cruel and unusual punishment.

In that case, two L.A. police officers had arrested Larry Robinson and reported that his arm was discolored by needle marks, though they had seen no direct evidence that he‘d been using drugs. He was convicted and sent to jail for 90 days under a California law that, among other things, made it crime to “use narcotics or to be addicted to the use of narcotics.”

In Robinson vs. Los Angeles, the justices struck down the part of the law that made “the status of narcotic addiction” a crime.

The 9th Circuit cited that precedent in ruling that cities may not punish people for the status of being homeless.

 “As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors on public property,” the court said in 2018.

Advocates for the homeless describe the rulings from Boise and Grants Pass as narrow and limited, and say their impact has been exaggerated by cities seeking to divert attention from their own failings.

These advocates add that the two cities are extreme examples because they sought to enforce their ordinances citywide and essentially banish homeless people from living in them.

State and local attorneys in California say the rulings have had a broad and troubling impact because they have been read as forbidding any enforcement action against homeless encampments if a city does not offer shelter to the many thousands who may need it.

Lawyers for dozens of West Coast cities, including San Francisco, Seattle, Phoenix and Los Angeles, say they have faced lawsuits accusing them of violating the constitutional rights of homeless people.

The justices must decide whether city ordinances that forbid or limit sleeping or camping on sidewalks amount to cruel and unusual punishment. The court’s conservatives are expected to be skeptical.

But the court could seek a middle approach by ruling that cities have the authority to restrict camping in public, so long as the ban is limited to certain places.

The Justice Department is urging the court to adopt that approach.

“The Constitution does not prevent the federal government, states, or localities from imposing reasonable time, place, and manner restrictions on sleeping in public and other conduct associated with homelessness,” Solicitor Gen. Elizabeth Prelogar said.

Lawyers for Grants Pass argue that camping on a public sidewalk is a conduct, not a status. And they say that imposing modest fines on repeat violators is not cruel and unusual punishment.

The attorneys say courts should not go down the road of freeing people from the law for what can be called “involuntary” conduct.

They say the 9th Circuit’s “mistaken view of the 8th Amendment logically would immunize numerous other purportedly involuntary acts from prosecution, such as drug use by addicts, public intoxication by alcoholics, and possession of child pornography by pedophiles.”

What’s at stake, they argue, is “the fundamental police power that all states possess to preserve public sidewalks, parks, school grounds, and other spaces for the use and enjoyment of the general public, free from obstruction, harassment, and inconvenience.”

They say that since the 9th Circuit’s rulings on the issue, “encampments have multiplied unchecked throughout the West ... resulting in spikes in violent crime, drug overdoses, disease, fires, and hazardous waste. The city does not ask this court to create any new authority, but only to restore standard tools that governments routinely use across the rest of the country to preserve public spaces for the entire community.”