Inspiring: Republicans and Democrats Are Coming Together to Screw Over the Unhoused

Democrats and Republicans are coming together to press the Supreme Court to take up a case that could overturn rulings that forbid state and local governments from arresting and punishing unhoused people when there is no available alternative to living in the streets. 

California Governor Gavin Newsom and two dozen other entities, including the city of Portland, the league of Oregon cities, Republican leaders in Arizona, district attorneys of Sacramento and San Diego, the state of Idaho, the cities of Los Angeles and Phoenix and the conservative Goldwater Institute, have all asked the Supreme Court to overrule lower courts on the matter. While the court has not yet put it on its calendar, it could decide whether to take up the case in the next few months, according to attorneys.

Newsom filed an amicus brief asking the courts to review the case on September 22, expressing support for a petition seeking to overturn rules protecting the unhoused. In a related press statement, Newsom said the purpose of the brief was so that “state and local governments can take reasonable actions to address the homelessness crisis creating health and safety dangers” to people living in encampments. 

Yet neither of the rulings Newsom wants re-examined forbid governments from addressing health and safety dangers; West Coast cities can still provide temporary or permanent housing, medical care, shelter, trash pickup, food or hygiene supplies to people in encampments, for instance. They only prevent police from citing or arresting people living outdoors when there is no other adequate shelter or housing available.

The case being petitioned, Johnson v. Grants Pass, held that cities couldn’t make it illegal for people sleeping outdoors to use rudimentary shelter from the elements when there’s no other options. The Ninth Circuit Court of Appeals ruling was made in September 2022 and applies to nine West Coast states as well as Alaska and Hawaii. 

Grants Pass expanded on a separate ruling in 2019 called Martin v. Boise, where the Ninth Circuit ruled that cities couldn’t punish people for sleeping outdoors when there is no other available shelter. (The city of Grants Pass, Oregon passed an ordinance after the Martin v. Boise ruling making it illegal to use sleeping bags or blankets while sleeping outdoors, essentially as a workaround).

A Supreme Court ruling on Grants Pass could undo Martin v Boise as well. The petition asked courts to answer the question, “Does the enforcement of generally applicable laws regulating camping on public property constitute ‘cruel and unusual punishment’ prohibited by the Eighth Amendment?” and if the Supreme Court takes it up, it could potentially upend both decisions.

“There is a universe of difference between what is being said about the opinion and what the opinion says,” Ed Johnson, director of litigation at the Oregon Law Center who is representing unhoused people in Grants Pass, told Motherboard. “The opinion is exceedingly narrow and puts no limits whatsoever on a city’s ability to prevent permanent or even established encampments.”

The intervention from lawmakers is part of a recent trend of leaders—mostly Democrats, along with some Republicans—asking courts to intervene to overturn rights of people experiencing homelessness. In San Francisco, the city has been fighting a court injunction barring it from performing homeless sweeps when it has no shelter, a result of a lawsuit filed by the Coalition on Homelessness alleging a violation of Martin v Boise. (San Francisco city attorney David Chiu also filed an amicus brief asking the court to rule on Grants Pass.) 

In New York City, Mayor Eric Adams’ administration is asking courts to suspend that city’s “Right To Shelter,” a 1981 consent decree that forces the city to provide shelter space to every unhoused person.

Whether the petition succeeds or not could come down to the intricate technicalities of U.S. courts. According to Eric Tars, legal director for the National Homelessness Law Center, the Supreme Court shouldn’t take up Grants Pass because it doesn’t meet some important criteria; there is no split in opinion between the circuit courts that would potentially be resolved with a Supreme Court ruling.

“The courts that have looked at this issue since Martin v. Boise have all come in line with the Ninth Circuit,” Tars told Motherboard.

But the Supreme Court also takes up cases where there is no lower court split if the decision has a broad impact on the nation. Homelessness is something every city is grappling with, but Tars said this is not the right case to address it.

“Obviously the issue of homelessness is an issue of high national importance but not the specific legal issues at stake here,” he said. “The court has been taking the opportunity to overturn other long standing precedents in some of its recent decisions, so could it take it up? Yes of course they could. But we hope that it sticks to its long standing precedent and doesn't.

Unsheltered homelessness and encampments have increased since the beginning of the COVID-19 pandemic, due to high housing costs, disruptions to daily life and CDC guidelines from the early months of pandemic that deterred encampment clearance. 

The two Ninth Circuit rulings have had a huge impact on the way west coast states treat their unhoused populations. A lawsuit in Los Angeles spurred by a group of business owners tried to get the city to dramatically expand its shelter capacity and other short-term solutions like so-called “tiny homes,” for instance, in an effort to legally deploy more police to break up encampments. (That group also filed a brief asking the Supreme Court to take up Grants Pass.) A judge in San Francisco banned the city from performing homeless sweeps when it found that it was violating Martin v. Boise as its shelters were at capacity. In Portland, the city passed a sweeping camping ban but  restricted it to daytime hours so as not to violate the rulings.

The city of Grants Pass in August submitted a writ of certiorari, or a request for the Supreme Court to take another look at a lower court decision, in an effort to get Grants Pass and potentially Martin v. Boise overturned. 

In his brief, Newsom boasts his record on homelessness, claiming he “partnered with local organizations to help thousands of people transition from the streets to supportive housing” and “allocated more than $15 billion towards housing and homelessness and its root causes.” Newsom then claims that encampment “resolutions”—government jargon for the removal of said encampments—are “a vital tool for helping to move people off the streets, to connect them with resources, and to promote safety, health, and usable public spaces.”

Tars said this rationale doesn’t make much sense. “They make it seem like they've been spending all this money on housing and somehow criminalization is some low cost innovation that's going to solve homelessness, if only the pesky Constitution would get out of the way,” Tars said. “But it's the exact opposite. They've been spending far more criminalizing homelessness for decades. That hasn't solved homelessness in that time. The housing investments that they've made have been a drop in the bucket compared to what's been lost from the federal level.”

Newsom’s briefing claims that he has no problem with the underlying principle behind Martin v. Boise, that people can not be criminalized when they have nowhere else to go, but that “lower courts have interpreted Martin far more broadly than that” by banning enforcement against populations of unhoused people rather than requiring individual determinations.

“Respondents insist that the ruling below does not prohibit clearing encampments, yet multiple district courts have held that it does exactly that,” Newsom’s brief says.

But Tars said Newsom is being naive if he believes the petition is not meant to upend Martin v Boise. “Governor Newsom is fooling himself if he thinks that that's not what the court is being asked to look at,” Tars said. “The question that petitioners are squarely presenting is a direct attack on Martin.”