SUPREME COURT RULING ALLOWS SWEEPS OF CAMPS, CRIMINALIZATION OF HOMELESSNESS

By Miriam Raftery

Photo:  Homeless encampment later swept in unincorporated area, via County of San Diego

June 29, 2024 (Washington D.C.) – The U.S. Supreme Court, by a 6-3 majority, has ruled that homeless people can be arrested for sleeping in a public place, regardless of whether or not shelter space is available. The decision also allows local governments to authorize ticketing, fines, and arrest of homeless people who violate anti-camping regulations,  even if they have no place safe to go.

Locally, the decision has sparked condemnation from advocates for homeless people, who argue that compassionate treatment and affordable housing are the solutions needed, but has also drawn praise from some city and county leaders aiming to clear homeless camps from parks, streets, sidewalks and other public places.

The Supreme Court struck down a lower court ruling in Johnson v.Grants Pass, finding that the Oregon city’s regulations penalizing people sleeping on public property did not violate the U.S. Constitution’s Eight Amendment, which prohibits cruel and unusual punishment.  

The ruling also upends a 2018 decision from the Ninth Circuit Court of Appeals in Martin v. Boise, which had held that  Boise and other Western cities under the court’s jurisdiction could not ban sleeping on public property unless adequate shelter space was available and offered to people experiencing homelessness. The Ninth Circuit had ruled that clearing homeless camps without offering alternative shelter violated the Eighth Amendment, a conclusion that the Supreme Court’s Friday ruling has now swept away. 

Nationwide, over 600,000 people are homeless on any given night, the federal government estimates. San Diego County has over 10,000 people who are homeless, including more than 1,200 in East County, most of whom are unsheltered, according to the January 2024 Point in Time Count. After the city of San Diego banned homeless camps, the number of homeless in nearby Lemon Grove rose by 85%;  homelessness also increased in La Mesa, Spring Valley, and some other East County communities in part due to homeless people displaced from San Diego A growing number of those are seniors, as the Baby Boomers grow older and housing costs skyrocket beyond what low-income individuals can afford; San Diego is among the least affordable housing markets in the nation.

Supreme Court majority and dissenting opinions

Writing for the majority, Justice Neil Gorsuch noted that the causes of homelessness are many and complex.  But he wrote, “The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homeless policy.”  Gorsuch, joined by the Supreme Court’s six conservative justices, found that regulations governing homelessness should be left to the states.

Liberal justices offered blistering dissents.

“Sleep is a biological necessity, not a crime,” Justice Sonia Sotomayor wrote. “For some  people, sleeping outside is their only option.” For a city to punish people for being homeless is “unconscionable and constitutional,” she stated.

Justice Elena Kegan agreed, likening the need for sleep to the need for breathing. “You can say breathing is conduct, too, but presumably you would not think it OK to criminalize breathing in public.”

Local reactions mixed: homeless advocates voice alarm, officials express relief

Jennifer Hark Dietz, CEO of PATH, a nonprofit devoted to helping homeless people, calls the ruling “devastating.” She predicts it will have “disastrous consequences” for the homeless nationwide, including 181,000 homeless people in California. 

Dietz notes that in its 40 years working in California, PATH has seen  how “costly, ineffective, and inhumane criminalization and enforcement policies can be.” She cites as an example a Los Angeles anti-camping policy that cost $3 million to clear camps, but resulted in only two people getting permanent housing.

“San Diego instituted a similar anti-camping ordinance and homelessness there continues to rise,” she noted in a statement.  “The status quo of people living outdoors is unacceptable,” she acknowledged, “but we know what works—connecting people to outreach, supportive services, shelter and permanent housing....PATH will continue to advocate for housing and services, not handcuffs.”

Deacon Jim Vargas, CEO of Father Joe’s Villages, our region’s largest provider of homeless services including shelter space, says many have on choice except to sleep outside, and that they deserve compassion, adding, “Jails are not the answer,” Times of San Diego reports.

San Diego’s Regional Task for on Homelessness CEO Tamera Kohler says the ruling by a divided court “won’t help us solve homelessness, but it will harm people experiencing homelessness.”

Photo, right by Dave Myers: A homeless person sleeps outside of La Mesa's City Hall

But among political leaders, praise came from both sides of the aisle. Governor Gavin Newsom, a Democrat, says the high court’s ruling removes ambiguities that have “tied the hands of local officials for years.”

California Senate Minority Leader Brian Jones, a Republican whose district includes most of East County, says “Californians should not have to tolerate the encampments that have taken over our communities.  This is not about criminalizing homelessness—it’s about ensuring the safety of both the community and homeless individuals.”

Similarly, Supervisor Joel Anderson, who represents much of East County, issued a statement indicating that the ruling should enable supervisors to “more appropriately address the homelessness crisis and enact ordinances such as the one I called for to help reclaim our public parks and sidewalks while preventing pollution and wildfires from illegal encampments.”

But Los Angeles Mayor Karen Bass, a Democrat, slammed the decision. “This ruling must not be used as an excuse for cities across the country to attempt to arrest their way out of this problem or hide the homelessness crisis in neighboring cities or in jail,” she said in a statement Friday.

El Cajon Mayor Bill Wells praised the ruling, noting that his city already conducts sweeps. In El Cajon, homeless people are first provided options to go to shelters, but for those who refuse help, their tents are cleared away by police.

Henry Mercado told ECM news partner 10 News that he was homeless in El Cajon until eight months ago, when he found help through the East County Transitional Living Center (ECTLC).  He believes clearing homeless camps is alright as long as homeless people are provided resources such as the ECTLC.

“If it’s a bunch of ECTLCs to go to but if it’s a bunch of jails for families, then it’s not a good thing," says Mercado.

But some say even clearing camps and offering shelter, as El Cajon has done, isn’t a total solution.

Robert Gehr is an El Cajon resident who told ECM on Friday that “filth, trash and degree” from homeless camped on streets in downtown El Cajon have become “unbearable,” adding that he was bitten on the arm this week by a homeless woman’s pit bull and was recently pursued for several blocks by a mentally ill homeless man.

Despite these problems, however,  Gehr doesn’t believe sweeps of homeless camps is the solution, when housing isn’t affordable and shelter space isn’t available for homeless people.

“Something definitely needs to be done in lieu of pushing them from one place to another,” he told ECM. “That’s not fixing the problem.  It’s just a small problem on a hemorrhaging wound.”