Even if the Supreme Court gives municipalities greater latitude to clear homeless camps, residents will likely have to force many of them to act.
In one neighborhood, a homeless man on a skateboard chased people with a chainsaw.
Others threatened residents with guns and attacked them with knives, garden shears, and broken wine bottles. For one resident, the terror from the “unhoused” was so bad that she was diagnosed with post-traumatic stress disorder and had to move out of her home.
In other neighborhoods, children’s soccer games were canceled because dirty needles littered the fields. The homeless have threated to rape and kill people, including a mother battling cancer. One homeless man attempted to drag a woman into his car and sexually assault her.
The homeless allow their unleashed dogs to roam neighborhoods. Sometimes they beat, choke, and kill their animals — including throwing puppies into the road to be run over.
Homeless people harass workers and smash windows of downtown businesses. They accumulate mounds of trash, attracting rats and other vermin. They use local rivers to wash themselves. They also relieve themselves and dump trash in the rivers.
Residents who’ve complained say they have been told by city staffers to just “get used to” it or “move,” to “step over needles,” and to “be thankful” that they’re “privileged” enough to have homes.
That is just some of the chaos occurring in and around Sacramento homeless encampments as described in a lawsuit filed last year by district attorney Thien Ho, a Democrat who accuses the California city’s Democratic leaders of allowing unhoused residents to live in “conditions typical of Third World countries.” Ho says city leaders ignore complaints from housed residents, blatantly disregard city protocols for dealing with the homeless, and decline to cite or enforce laws against the homeless, turning their city into a magnet for lawlessness.
Ho’s lawsuit charges city leaders with creating and maintaining a public nuisance. He amended it in December, accusing them of also allowing local rivers to be polluted.
Ho told National Review that city leaders are stuck between compassion for homeless residents and allowing chaos to engulf the community.
“It’s not compassionate to let people die on the streets,” he said.
Ho is also among the critics of two Ninth Circuit decisions — Martin v. Boise and Johnson v. Grants Pass — which he believes have contributed to the homeless crisis plaguing communities up and down the west coast, particularly in California. In its rulings, the Ninth Circuit concluded that prosecuting people for sleeping or camping in public when they have no home or shelter is a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.
Critics say the rulings have disempowered local governments and caused confusion about what, exactly, they can do to stop homeless camps from overrunning their parks and sidewalks.
Earlier this year, the Supreme Court agreed to hear the Grants Pass case. The good money is on the Court overturning or severely limiting the Ninth Circuit’s ruling, giving local governments the go-ahead to once again to deal with the homeless crises in their borders. During oral arguments last week, the Court’s conservative justices seemed sympathetic to the plight of local government leaders who are struggling to maintain order for law-abiding citizens.
But even if the Supreme Court overturns the Ninth Circuit’s Grants Pass ruling, signaling to local leaders that they can take action against squalid homeless camps, that likely would not mean that they must take action. And in many cases, including in big cities like Sacramento and Phoenix, city leaders in their desire to be compassionate have been reluctant or unwilling to do much at all to clear out and prohibit people from sleeping or camping in public spaces.
That’s why proponents of government action against homeless camps say legal efforts like Ho’s lawsuit against the city of Sacramento will be a key next step to compel local leaders to keep their communities safe and clean in a post-Martin and post-Grants Pass world.
“In my view, the day Grants Pass is overturned, there should be lawsuits ready to go in Berkeley, in San Francisco, in Seattle,” said Ilan Wurman, a constitutional law professor at Arizona State University.
Wurman was part of the legal team that successfully sued the city of Phoenix last year for allowing a massive downtown homeless camp known as “the Zone” to become a public nuisance. He’s since filed similar public-nuisance lawsuits in Tucson and Salt Lake City.
Other legal strategies to force the hand of local governments to deal with homeless camping include charging them with violating environmental laws, as Ho is doing in Sacramento, and pursuing lawsuits on behalf of the blind and people with disabilities, who need unfettered access to sidewalks that are too often clogged with tents, shopping carts, needles, and garbage.
Timothy Sandefur, vice president of legal affairs for the Arizona-based Goldwater Institute, said the Ninth Circuit rulings in Martin and Grants Pass have created real confusion among some local leaders who honestly don’t know what they are allowed to do about the sprawling homeless camps in their cities, and who face legal threats and agitation from left-wing homeless advocates if they do take action.
Other progressive leaders who believe they shouldn’t take action against any homeless people until they can provide homes for all of them have seized on the Ninth Circuit rulings as an excuse to do little or nothing about the camps in their communities.
“Overturning the Ninth Circuit is definitely a necessary first step toward actually addressing these problems,” Sandefur said. But it won’t be the last.
“I think we’re seeing that people are really fed up with how bad the problem has gotten in a lot of communities,” he said. “I do think the political will is there to say, we can’t just let these giant camps on the streets and in our parks.”
Creating and Allowing a Public Nuisance
In his lawsuit, Ho describes conditions at more than a dozen Sacramento encampments.
It reads like the setting of a post-apocalyptic movie: a homeless man swinging a sword on a resident’s front porch, a drug dealer walking around cracking a whip and threating people, downtown employees forced to hide in business bathrooms, cars set on fire, and neighborhoods filled with garbage — lots and lots of garbage.
“Amid this spiraling descent into decay and this utter collapse into chaos, the City of Sacramento has consistently failed to abate the nuisance it caused,” Ho’s lawsuit says, adding that our “community is at a breaking point.”
Sacramento city leaders and homeless advocates say they’re doing what they can and accuse Ho of engaging in a political stunt.
But for many residents, the chaos is all too real in Sacramento, which has seen a 250 percent increase in its unhoused population over the last seven years, according to Ho’s lawsuit. More than 9,000 homeless people now call Sacramento County home, according to federal data.
Janie Rankins, 75, who lives in Hagginwood, a neighborhood in north Sacramento, told National Review that homeless people regularly take over an empty four-block plot of land around the corner of her home, filling it with tents, dilapidated vehicles, and trash. They tap into a local watermain to drink and allow their unleashed dogs to wander.
“One female was lying out in the street and didn’t have clothes on. Another man was just going down the street knocking over mailboxes and yelling and screaming,” Rankins said. “My husband doesn’t want me to walk the neighborhood anymore.”
The encampment recently moved a few miles away, but Rankins suspects it will return soon. “I don’t think the city’s doing what they can do about it,” she said.
Ho initially filed his lawsuit in September, focusing on the public nuisance he says they city has allowed. Public-nuisance law allows local governments to hold landowners accountable for crime and disorder on their property that negatively affects the greater community.
“The city, and they do this all the time, will go after you. They will fine you. They will sue you civilly or they’ll go after you criminally for creating a public nuisance,” Ho said. “Well, the law allows that same sort of action against a municipality, a city.”
Wurman at Arizona State said he believes public-nuisance law is the best avenue for residents and business owners to compel local leaders to take action against homeless camps.
Last year, an Arizona Superior Court judge found that Phoenix leaders were illegally maintaining a public nuisance and a biohazard in the Zone, a massive encampment where people smoked and injected drugs openly, engaged in prostitution freely, and filled storm drains with human waste, rotten food, and garbage that flowed into a local river. Multiple burned bodies, including the body of newborn, were found in and around the camp.
City leaders pointed at Martin as a primary reason why they couldn’t do anything. But the judge said they were wrong and ordered them to clear out the camp and clean up the area.
Lawyers have started filing similar public-nuisance lawsuits against cities in other states for allowing homeless camps to create disorder. In St. Louis, for example, a lawyer sued the city in February, accusing leaders of allowing homeless people to live in a makeshift tent — and relieve themselves in the sewer — in front of a couple’s house.
In Lawrence, Kansas, local businessowners are suing the city, alleging that leaders have mismanaged two city-sanctioned homeless camps and allowed them to become nuisances. In the camp behind Johnny’s Tavern, most of the tents are now outside of the city’s fencing.
As part of the social contract, government has a duty to prohibit public nuisances, which would include massive homeless camps like the Zone as well as much smaller camps, Wurman said.
“It doesn’t matter if it’s three tents, it doesn’t matter if it’s a thousand tents. It doesn’t matter if it’s one location, it doesn’t matter if it’s ten locations,” he said. “They’re all public nuisances.”
Sandefur cautioned that one potential downside of public-nuisance lawsuits is that courts tend to be deferential to government and will give them leeway to manage nuisances their way.
“In Phoenix, the situation was so extreme that it warranted the court saying, the city was actually operating the Zone — it was basically running an open-air homeless shelter on the streets,” he said. “In most cases, cites are going to be clever enough to avoid getting to that point.”
‘An Environmental Disaster’
Environmental law is another potentially strong avenue for compelling local governments to address homeless camps that typically are strewn with litter, junk, human waste, and drug paraphernalia that can pollute local greenspaces and waterways, Sandefur said.
“A lot of environmental laws are extremely strict and bind the government,” Sandefur said. “I think it’s a handy tool that people ought to take a look at.”
While private individuals often are not allowed to sue the government for allowing environmental abuse, some elected leaders can. That is what Ho did in December, when he amended his lawsuit to include charging the city with allowing the homeless to pollute local rivers in violation of the state’s fish and game code.
Ho said that while the county has kept is riversides clear of encampments, the city has not. Camps along the American and Sacramento rivers in the city are filled with debris — mattresses, tarps, fast-food containers, liquor bottles, appliances, crack pipes, and needles, Ho’s lawsuit says. Homeless people use the waterways to wash their clothes, their dishes, and themselves. “The zone inhabitants also utilize the waterways as open toilets and trash receptacles,” according to the lawsuit.
Ho contends the homeless have turned the rivers into “an environmental disaster.”
“Every time I go somewhere, I ask, ‘Does anybody here want to swim in the American River or the Sacramento River? No. Does anybody here want to kayak, does anybody here want to eat fish from the river?’ And nobody raises their hand,” he said. “This is a jewel. We are known as the River City . . . and yet, nobody wants to enjoy that public jewel and resource.”
Americans with Disabilities and a Legal Theory
A couple of years ago, John DiLorenzo, a lawyer in Portland, Ore., developed a novel legal strategy that he says has helped force local leaders to clear up the homeless camps that were clogging sidewalks in the City of Roses’ downtown core: He sued them on the grounds that they were violating the Americans with Disabilities Act and the Rehabilitation Act of 1973.
DiLorenzo said he first became invested in the city’s homeless crisis when an encampment popped up across the street from an apartment he owns and leases. Tenants were being harassed, while the city abrogated responsibility for cleaning the mess, he said.
Homeowners in the area hired private investigators to monitor the camp, and learned that there was a ringleader who ran a wholesale and retail drug operation and a prostitution ring out of the tents, DiLorenzo said.
“The guy was vertically and horizontally integrated. He had zero labor costs,” DiLorenzo said. “I mean, if this was legal activity, you could write an MBA thesis about this.”
Police eventually took action after DiLorenzo presented city leaders with the evidence, but massive homeless encampments still plagued much of the rest of the city.
DiLorenzo started receiving calls from business leaders who had resources for a legal fight. But they didn’t have a legal theory to force the city to act, he said.
Eventually, DiLorenzo learned about a group of blind and disabled residents who were so intimidated by the vagrants in the camps that they wouldn’t leave their apartments. His team surveyed Ninth Circuit cases and learned that city sidewalks are subject to the ADA.
“I said, you know, I’ve got one group that has resources and no legal theory worth a damn. And I’ve got another group that has a great legal theory and no resources. And they both have the same agenda,” he said. “So, I put them together.”
Their class-action lawsuit accused the city of failing to keep their sidewalks clear of debris and tent encampments, and failing to ensure the sidewalks are accessible to people with disabilities and visual impairments.
As part of a legal settlement DiLorenzo and the city council reached last spring, the city vowed to prioritize removing camps from sidewalks, establish a system for reporting problematic camps, stop distributing tents and tarps to the homeless, and spend at least $20 million over the next five years to establish an “Impact Reduction Program” targeting homeless camps.
Last year, disabled residents in Sacramento filed a similar lawsuit against their city and county, though the plaintiffs in that case ran into issues with legal standing.
Still, DiLorenzo said suing under the ADA is a legal strategy that could work in other big cities.
“Los Angeles would be perfect for this. San Francisco would be perfect for this. Seattle would be perfect for this,” he said.
Some law-and-order advocates say that at the very least, cities like Sacramento should be enforcing laws in homeless camps against things like drug use and sales, public intoxication, littering, disorderly or indecent conduct, and prostitution.
Typically, local governments have discretion for how they enforce their laws, and residents can’t sue, Sandefur said. But he said a challenge might succeed if the plaintiffs could show that city leaders aren’t just using discretion, but have enacted a new policy of non-enforcement.
“They’re required to go through steps when they do that,” he said.
Sandefur said the Ninth Circuit rulings in Martin and Grants Pass aren’t the only reason for the explosion of West Coast homeless camps, but it’s clear they’ve played a significant role. He expects the Supreme Court to overturn the Grants Pass ruling later this year.
Wurman agreed that Grants Pass will likely be overturned or severely limited. He said he wouldn’t rule out a unanimous decision, even though the court’s liberal justices seemed sympathetic to the plight of the truly, involuntarily homeless during oral arguments.
But many people on the street aren’t truly, involuntarily homeless, Wurman said. Many, if not most, have options, including unused beds in shelters in their community or nearby.
Rather than using a crude formula many West Coast cities have taken to — if there are more homeless people in a community than shelter beds available, public-camping laws can’t be enforced at all — the Court could find that a more narrow, individualized inquiry is necessary.
“I don’t necessarily disagree with that basic, narrow principle that if you’re truly involuntarily homeless, if it’s truly status and not conduct,” then public camping bans maybe shouldn’t be enforced, Wurman said. But in the Zone in Phoenix, the vast majority of the residents had options besides living in the camp, surveys found.
“They do have somewhere else to go, which they refuse for various reasons,” he said.
And, he added, even if there are a substantial number of truly involuntarily homeless people in a particular city, “It still doesn’t mean that they can camp anywhere they want.” Reasonable time, place, and manner restrictions can be enforced, even under Martin and Grants Pass.
“Choosing to camp on the streets because you’d rather not go to a sanctioned campsite that has anti-drug rules, that’s conduct at that point,” he said. “That’s a choice.”