Some cities have passed or introduced their own laws against sleeping on public property, others have threatened stricter enforcement of existing laws, and still others have reaffirmed their refusal to enact or enforce such laws against unhoused residents. Still, attorneys told Law360 Real Estate Authority that the path forward is murky while multiple avenues for challenging such laws remain.
Homeless rights activists hold a rally outside the U.S. Supreme Court on April 22, as the court heard oral arguments in City of Grants Pass, Oregon v. Johnson. A little over a month since the high court found that the Oregon city's public camping ban doesn't amount to cruel and unusual punishment of its unhoused residents, cities and states are still grappling with how to move forward. (Photo by Kevin Dietsch/Getty Images)
Homeless advocates have insisted that the high court's ruling was narrow in scope and should not be interpreted as a blank check.
"[The ruling] wasn't a mandate to use criminal laws in order to harm people and further destabilize them and reduce their chances of gaining a home," said Kate Walz, associate director of litigation at the National Housing Law Project. "It was saying that it didn't violate the Eighth Amendment if you took those steps."
With the high court's decision only a month into the rearview mirror, many cities and states are still debating how to move forward, per Sheppard Mullin Richter & Hampton LLP partner Alexander Merritt.
"The cities were clamoring for this additional latitude and authority to regulate encampments themselves, but now they got their wish, and they've actually got to figure out what to do," Merritt said. "I don't know that many of them thought too much about exactly what they were going to do."
Large cities like San Francisco that are already at the forefront of the debate over how municipalities should address their homeless population will likely take charge, and smaller ones may follow suit, Merritt predicted.
But many municipalities across the country have read the ruling as a green light to pass or consider new laws that curtail residents' ability to sleep in public, by imposing fines or jail time on those who do so.
San Marcos, California, voted July 23 to enact a ban on public camping. And Des Moines, Iowa's, City Council gave initial approval for an ordinance that would subject residents to fines for sleeping on public property, though the law must still be voted on a second time.
Ordinances banning camping on public property were also introduced in both Brainerd and Duluth, Minnesota, in July.
Additionally, Morgantown, West Virginia's, City Council is considering a bill that would expand its ban on camping in public parks to include city streets, sidewalks and other public property. Also in July, Lakewood, Washington, voted to adopt a public camping ban that closely echoes the Grants Pass law.
Other elected officials have interpreted the decision as an opening to reexamine settlements and injunctions designed to comply with Martin v. Boise, in which the Ninth Circuit determined that such public camping bans impermissibly criminalized the status of homelessness. The 2019 decision largely dictated municipalities' approach to enforcing camping bans until the high court overturned the ruling in Grants Pass.
"What we're starting to see is an effort by cities to go back to court and ask for an order for relief from the terms of the settlement, or for changing the settlement in light of the Supreme Court's decision in Grants Pass," Goldfarb & Lipman LLP attorney Dolores Bastion Dalton said.
On the same day as the Grants Pass ruling, Los Angeles City Council member Traci Park co-authored a motion asking the city attorney to review how the decision weighs on current local homeless regulation, pending litigation and a 2023 settlement. The move "telegraphed" a possible shift, per National Homelessness Law Center Senior Policy Director Eric Tars.
"The U.S. Supreme Court weighed in and fully reversed the Ninth Circuit, reopening the door for cities to reasonably regulate public spaces and balance the needs of the unhoused with the needs of existing communities," Park said in a statement at the time. "If we don't course correct on our own policies, things are likely to get worse before they get better."
In early July, the Ninth Circuit partially vacated an injunction that had barred San Francisco from enforcing bans on public camping so long as the city's homeless population outnumbered available shelter beds. The circuit court cited Grants Pass in its brief ruling.
However, that decision left in place a component of the injunction ordering the city to comply with its own policy of storing belongings retrieved at encampment sweeps for up to 90 days, with the Ninth Circuit noting that the ruling hinges on a Fourth Amendment claim. And this is a tripwire that courts will need to be aware of as they rethink these rulings.
"I think we have definitely seen some movement in the direction of reconsidering those injunctions or settlements," Tars said. "But because many of them have been challenged on multiple bases, it's not just simply a matter of that they would be lifted automatically."
Pottstown, Pennsylvania, urged the Third Circuit earlier this month to rethink a district court's preliminary injunction, which had stopped the borough from issuing criminal citations, arrests or fines amid efforts to clear a homeless encampment.
Because the lower court relied on Martin v. Boise in issuing the injunction, the order no longer rests on solid legal ground, Pottstown argued.
Merritt said that he has his eye on the North Bay Area, where several California cities including Santa Rosa, San Rafael and Novato are subject to settlements and injunctions tied to public camping bans.
The attorney added that he's also watching Sacramento, California's, appeal of an injunction that temporarily blocked the city from sweeping homeless encampments under a public camping ban during summer months in 2023.
In the immediate wake of the high court's decision, other municipalities and state governments are resuming or stepping up enforcement of laws already on the books.
Oskar Rey of Ogden Murphy Wallace PLLC told Law360 that he has not seen a wave of rulemaking in the wake of Grants Pass, possibly because many municipalities already had such laws in place before Martin v. Boise.
"Most jurisdictions didn't get rid of their camping ordinances that existed prior to Martin v. Boise," Rey said. "Martin v. Boise didn't really invalidate anyone's ordinances … most cities chose to change their enforcement practices instead of changing their ordinances."
California Gov. Gavin Newsom ordered state agencies to step up enforcement efforts against homeless encampments on state property. The governor on July 25 directed state agencies and departments to draft "humane and dignified" policies that follow the lead of the California Department of Transportation's existing policy.
San Francisco Mayor London Breed also promised action in the immediate wake of the June ruling.
"We will continue to offer shelter, but we will not allow those who reject offers of help to remain where they are," Breed said in a statement. "Those who refuse our help or those who already have shelter will not be allowed to camp on our streets."
Under the preliminary injunction partially vacated by the Ninth Circuit in July, the city had been barred from enforcing a handful of ordinances against sleeping and camping on public property.
Dalton said that many municipalities resuming homeless encampment sweeps in the past month have relied on civil mechanisms to enforce such sweeps, while it remains unclear whether cities and counties are willing to impose criminal penalties.
Other elected officials may choose to focus on increasing their supply of affordable and supportive housing rather than enacting new anti-camping ordinances.
Los Angeles Mayor Karen Bass appeared to signal that the city would take this approach when she slammed the high court's decision in a June statement.
"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," Bass said. "The only way to address this crisis is to bring people indoors with housing and supportive services."
In early July, four senators in Pennsylvania announced plans to introduce legislation that would bar the criminalization of homelessness.
Oregon — home to the city that sparked off the nationwide flurry — pioneered this alternate path for states in 2021 when it passed legislation requiring local regulation of public camping to be "objectively reasonable." The law also establishes an affirmative defense for state residents charged under such laws.
Tiffany Israel, an equity partner at Aleshire & Wynder LLP, noted that her municipal clients are taking cues from the high court majority's own admission that the provision of affordable housing and supportive services will be part of a "multifaceted" response to homelessness.
"For such a conservative court, they were wide-eyed on the reality when they said to look at what can be done to help the homeless population," Israel said.
She added that the municipalities she advises are primarily focused on constructing new housing and providing necessary supportive services.
Attorneys were also quick to note that anti-camping bans aren't insulated from further constitutional challenges following the high court's ruling.
The Supreme Court majority noted in a footnote of the decision that cities selectively applying such laws only to homeless individuals "may implicate due process and our precedents regarding selective prosecution."
But only a month out from the blow dealt by the Supreme Court, advocates for unhoused individuals have not yet sketched another path toward litigating such laws.
"I think there hasn't been a full evaluation internally about what the avenues for relief are, and it may be case specific in terms of ... what is the motivation behind what a jurisdiction is doing," Walz, of the National Housing Law Project, said.
Tars noted that advocates may look to Michael Bloom et al. v. city of San Diego et al. — in which a class of unhoused residents recently secured a $3.2 million settlement — as guidance. The residents had challenged city enforcement of a law banning sleeping in cars and recreational vehicles, which the court found to be unconstitutionally vague and arbitrarily enforced in a preliminary injunction ruling.
Advocates could also draw from the Ninth Circuit's 2014 decision in Desertrain v. city of Los Angeles, in which the court deemed a law prohibiting residents from living in cars parked on public streets unconstitutionally vague, as well, Tars added.
"There are some theories that have already been tested, are already being used, other ones like a preemptive use of the necessity defense, other due process theories, [that] haven't been tested yet," Tars said. "But we are already exploring them."
--Editing by Melissa Treolo.
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