Progressive Pols Unite with Cops, Conservatives to Urge Supreme Court to Allow Homeless-Camping Crackdown

In San Diego, homeless camps are “hubs of drug abuse” where Hepatitis A is spreading.

In Sacramento, homeless campers looking for water have dug into and damaged the levees that protect the California state capital from flooding, “putting the entire city at risk.”

In Apache Junction, Arizona, the parks are “overwhelmed” by homeless people, who relieve themselves in youth-baseball dugouts and leave behind dirty needles and drug paraphernalia.

Homeless campers in Medford, Oregon, have littered Bear Creek, a tributary of the Rogue River, with human waste, coolant, and other toxic materials. And they’ve used tarps to build makeshift dams to illegally trap salmon and other protected fish.

One homeless camp in Oregon became a chop shop to process stolen catalytic converters.

Fires in homeless camps are on the rise. So are drug-overdose deaths. Businesses located near camps are losing customers. In some cases, government workers need police escorts to do their jobs on public land filled with sprawling homeless camps.

“Families can no longer walk the streets of Portland, San Francisco, and Seattle in safety,” a group of state attorneys general wrote. “The pungent smell of urine and human feces fills the air. Hypodermic needles used for narcotics cover the ground. And rats carrying diseases that were once thought eradicated scurry from encampments to nearby businesses and homes.”

Those are just some of the claims made in more than two dozen amicus briefs filed last month urging the Supreme Court to overturn a recent Ninth Circuit ruling that drastically limited the ability of local governments to enforce camping bans on many homeless people.

The briefs represent the perspective of hundreds of groups and people — city leaders, politicians, civic groups, business organizations, downtown residents, law-enforcement leaders, state attorneys general, conservative think tankers — united by their belief that the Ninth Circuit’s ruling last year in Johnson v. Grants Pass has hamstrung cities and allowed for the proliferation of squalid and dangerous homeless encampments in Western communities.

The Republican leaders of the Arizona legislature filed a brief, arguing that the Ninth Circuit ruling thwarts “the legislature’s efforts to address a crisis on its own doorstep.” Likewise, Gavin Newsom, the Democratic California governor, filed a brief claiming that Ninth Circuit rulings have “paralyzed communities” and left residents “at risk of exposure to criminal activity and controlled substances, and of subjugation to sex work or physical abuse.”

Grants Pass, a lower-income city in southern Oregon, petitioned the Supreme Court in August.

“I’m feeling pretty good that the court will take the case,” Augustus Ogu, the city attorney for Grants Pass, told National Review. “There’s too much uncertainty, especially in the Western part of the United States for the court not to take the case. Cities are kind of neutered. We don’t know what we can and can’t do.”

The Johnson v. Grants Pass ruling in 2022 is the second of two Ninth Circuit decisions that critics say have supercharged the proliferation of homeless camps in Western states. It came on the heels of a 2018 ruling in Martin v. Boise, in which the court held that enforcing criminal anti-camping restrictions on people who don’t have “access to adequate temporary shelter” is a violation of the Eighth Amendment’s ban on cruel and unusual punishment.

Just weeks after the Martin ruling, three homeless residents sued the city of Grants Pass. Last September, the Ninth Circuit ruled in their favor, extending the Martin ruling to include the prohibition on issuing civil citations to homeless campers, and affirming a class-wide injunction against Grants Pass’s enforcement of its anti-camping ordinance.

The Ninth Circuit denied a rehearing in July.

In their petition to the Supreme Court, lawyers for Grants Pass argue that the Ninth Circuit’s ruling conflicts with rulings by the California Supreme Court and the Eleventh Circuit. The Johnson v. Grants Pass case offered the Ninth Circuit an opportunity to course correct after its Martin ruling, the lawyers wrote. Instead, the court “doubled down” and denied a rehearing “over the objections of 17 active and senior judges, who explained that the Ninth Circuit should have reconsidered this ill-conceived judicial experiment,” they wrote.

The lawyers for Grants Pass wrote that there is no reliable way for a police officer to determine if someone is “involuntarily” homeless, or to know precisely how many homeless people are on the streets and how many open shelter beds are available at any time.

“Time is of the essence,” they wrote about clarifying when public camping bans can be enforced. “The consequences of inaction are dire for those living both in and near encampments: crime, fires, the re-emergence of medieval diseases, environmental harm, and record levels of drug overdoses and deaths on public streets.”

Ed Johnson, director of litigation at the Oregon Law Center, which represents the homeless plaintiffs in Grants Pass, told Oregon Public Broadcasting that he’s happy with the Ninth Circuit’s rulings limiting the enforcement of camping bans, which he said exacerbate problems.

“Allowing cities and counties unfettered discretion to criminalize their homeless citizens will not reduce the number of people who are forced to live outside,” Johnson said. “It will increase the number because criminalization destabilizes people who are living outside, and it makes it harder for them to connect with jobs and housing that they need in order to get inside.”

But the hundreds of people and groups who have filed and signed on to the more than two dozen amicus briefs argue that the rulings have led to a situation that has “reached crisis level in several cities.”

California law-enforcement associations argue in their brief that Ninth Circuit’s “expansive interpretation” of the Eighth Amendment “impermissibly intrudes on core police functions, impairs law enforcement’s ability to protect public safety and fails to provide law enforcement sufficient direction or flexibility to make critical decisions regarding citing individuals for violations of basic health and safety laws.”

A brief from the conservative Goldwater Institute in Arizona argues many government officials have used the Ninth Circuit rulings and the court’s “bizarre notion of ‘involuntariness’ as an opportunity to shrug off their responsibilities to enforce laws that are wholesome and necessary for the public good.”

The Martin theory of “involuntariness” is irrational, the Goldwater Institute brief says, because “people who choose to live indefinitely on the streets” can “choose alternatives — they can choose to obtain shelter, to seek employment, or to take advantage of the social, medical, or psychological services necessary to bring themselves into compliance with the law.”

Newsom’s brief calls the homeless crisis “one of our nation’s most vexing problems.”

Newsom doesn’t take issue with the court’s narrow rule, which protects people with nowhere else to go from criminal prosecution, according to his brief. “But lower courts have interpreted Martin far more broadly than that,” and have “paralyzed” communities, the brief continues.

“These courts have stretched Martin’s reasonable limit into an insurmountable roadblock, preventing cities and towns from imposing common-sense time and place restrictions to keep streets safe and to move those experiencing homelessness into shelter,” Newsom’s brief says.

A brief by the city and county of San Francisco and Mayor London Breed says that the “Ninth Circuit’s fundamentally flawed legal analysis has wreaked practical havoc in courts and on the ground in municipalities across the Ninth Circuit, including in San Francisco.”

Grants Pass, the small Oregon city off Interstate 5 at the heart of the legal case, has a population of about 40,000. It has hundreds of homeless residents, and no specific secular space for them to go. A local Gospel Rescue Mission’s 138 beds don’t count as public shelter space because the mission requires Christian church attendance and has sobriety requirements.

Because of that and the court’s injunction, the city’s homeless residents essentially have carte blanche to set up camps in 15 of the city’s 16 parks — one park, a larger complex with youth sports facilities, is off limits to homeless campers, Ogu said.

With those homeless camps come “trash, feces, drugs, alcohol,” he said.

“It’s not getting better,” Ogu said. “There’s no alleviation of the homeless problem here. People are still sleeping in tents in the parks at all hours of the day.”

Ogu said the city has floated the idea of establishing a shelter or an urban campground, but the idea has been met with “real community backlash and resistance,” and there are questions about who would manage the space and about legal liability. There are also funding issues.

Grants Pass, a lower-income former lumber town where Dutch Bros. Coffee is now headquartered, can’t afford to keep massive shelters going “year over year,” Ogu said.

About a decade ago, there was some discussion among city leaders about making homeless people so uncomfortable in Grants Pass that they would move on. Ogu said that rhetoric was seized on by the homeless plaintiffs’ lawyers. He also said he believes that those lawyers targeted Grants Pass because “the city doesn’t have a ton of legal resources.”

“You could have sued any jurisdiction up and down the West Coast for something like this,” he said.

Grants Pass leaders are trying to work within the court’s injunction to better regulate its parks and public spaces. In June, city leaders unanimously revamped the nuisance code to better crack down on things like public urination, washing in the river, and using marijuana and alcohol in public parks, Ogu said.

The city is hoping to get clarification about what they can and must do from the Supreme Court.

“I think the longer things go on without a resolution, more and more explanations to the public sound like excuses from elected officials,” Ogu said. “It is causing a massive rift in our community.”