How will Nevada cities and counties react to U.S. Supreme Court homeless ruling?

(Photo: Ronda Churchill)

Policy, politics and progressive commentary

Though a recent U.S. Supreme Court decision gives cities more leeway to criminalize unhoused people for sleeping in public, Nevada municipalities have already enacted punitive measures in recent years.

The Supreme Court on June 28 ruled that anti-camping bans passed by cities don’t violate the 8th Amendment’s prohibition against cruel and unusual punishment even when there is a lack of adequate shelter spaces for the unhoused to go.

During Tuesday’s Clark County Commission meeting, Chair Tick Segerblom questioned whether the county should consider an ordinance that prohibits camping following the Supreme Court ruling.

“I don’t want to arrest everybody, but I would like to make sure we at least correspond with other cities,” he said. 

Segerblom clarified with Current it’s only a consideration but “no commitment.” 

Homelessness rates in Southern Nevada have grown in recent years, similar to rising rates across the country.

In 2023, the annual point-in-time count, which attempts to estimate the number of unhoused folks on any given night, showed that the number of people experiencing homelessness in Southern Nevada grew 16% from the previous year. The largest increase was among families with children.

Athar Haseebullah, the executive director of the ACLU of Nevada, warned cities can’t criminalize their way out of the homelessness problem and should instead invest in building affordable housing and adequate shelter space.

“It’s alarming they constantly talk about this rhetoric suggesting (criminalization) is just one tool in the toolbox,” Haseebullah said. “In fact, it is the only tool that they continue to use over and over. It’s been inefficient at solving anything.”

Enforcement of criminalization is expensive – from the time it takes to prosecute low-level offenses to the costs of keeping a person in jail, he added. 

“Do they have money for enforcement after the lawsuit they just settled?” Haseebullah asked, referring to a controversial $80 million settlement with Gypsum Resources over a legal dispute involving a planned housing development near Red Rock Canyon National Conservation Area. “They should probably figure out cost-saving mechanisms instead of devoting more resources to issues like this unless it’s something that will create long term cost savings.”

Grants Pass ruling

In a 6-3 ruling, the Supreme Court reversed Johnson v. City of Grants Pass, a decision by the 9th U.S. Circuit Court of Appeals, whose jurisdiction includes Nevada.

In the 2022 decision, the appellate court ruled in favor of unhoused people who sought to overturn city ordinances passed in Grants Pass, Oregon, that restricted and fined people for sleeping and camping in public even though there aren’t other places to go.

“We are not under any delusion that this United States Supreme Court does not care about folks who are unhoused,” Haseebullah said. “That part is quite clear.” 

The cities of Las Vegas and Henderson signed on to an amicus brief last September asking the Supreme Court to overturn the 9th Circuit ruling. The brief, written by the Seattle city attorney, argued the decision prevented them from addressing the homeless crisis.

In an email to the Current, Justin Emerson, a spokesman for the the City of Henderson, said the Supreme Court’s decision would help restore “the tools available to local governments to address the homeless crisis.”

“The City of Henderson remains committed to assist individuals who are unhoused with the ultimate goal of removing barriers and connecting them to necessary social services,” he said.  

The 2022 Grants Pass decision wasn’t the first time the 9th Circuit had offered some protections for those experiencing homelessness when cities sought to criminalize life-sustaining activities, such as finding a place to sleep, when there wasn’t shelter.

In Martin v. City of Boise, the court ruled in 2018 that cities couldn’t punish people for sleeping on the streets if there were no reasonable shelter alternatives available. The Supreme Court declined to review that case.

Despite restrictions from the 9th Circuit’s rulings, Nevada cities have passed ordinances restricting sleeping and camping in public. They’ve also carried out encampment removals. 

The City of Las Vegas also passed an ordinance in 2019 that prohibited people from sleeping and camping in public right-of-ways but only if shelter beds are available. 

Jace Radke, a spokesman for the city of Las Vegas, said the shelter provision is still in effect. 

“The Supreme Court ruling would allow the shelter-capacity provision to be repealed if that is a policy decision that the City Council wishes to make,” he said. 

Las Vegas City Council has not brought this forward to a meeting agenda for discussion at this point, he added.

Data from the city shows it also carried out 3,500 encampment removals or disbursements in 2023. 

“Any encampment that was cleaned occurred when beds were available, and after city outreach teams spoke to those in the encampment,” Radke said.

The City of Henderson also adopted an ordinance June 2023 that amended and expanded its regulations on camping in open spaces to prohibit sleeping outdoors, setting up tents or cooking outdoors. 

Ordinances haven’t been restricted to Southern Nevada. 

Most recently in March, Washoe County made it a misdemeanor to camp on county-owned property or within 1,000 feet of the Truckee River, live in vehicles on county owned property or public spaces, and obstruct uses of the public sidewalk.

Beth Drysdale, a spokeswoman with Washoe County, said in an email the court’s ruling doesn’t change the county’s commitment to provide homeless resources and shelter.

“We have beds available at the Nevada Cares Campus, we’ve built the Resource Center to provide support and diversion for those who may be in danger of becoming homeless, and we’re now developing behavioral health resources to better address the mental health and drug use issues that are often a part of homelessness,” Drysdale said.

Haseebullah says the ACLU is reviewing the homeless camping ordinances passed in municipalities throughout the state to determine how cities are enforcing their ordinances.

‘That’s not where the political winds landed’

Other states have sought to limit the power to draft anti-sleeping ordinances at the local level. 

The Oregon Legislature passed a bill in 2021 that states “any city or county law that regulates the acts of sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to the public must be objectively reasonable as to time, place and manner with regards to persons experiencing homelessness.” 

The bill went into effect July 2023.

A similar idea was briefly considered during Nevada’s 2023 Legislative Session.

Senate Bill 155, sponsored by Democratic state Sen. James Ohrenschall, originally had provisions that restricted cities from creating ordinances that punished life-sustaining activities. It hit roadblocks even before its first hearing. 

“We were told by leadership it wasn’t going to pass, and the governor’s office said it wasn’t going to be signed,” said Haseebullah. “It had to be modified in order for it to even get through.”

The bill was rewritten to refer unhoused people to a speciality court in lieu of paying fines and fees for crimes related to homelessness.

Haseebullah said he would like to see legislation that preempts cities from criminalizing homelessness but there isn’t a political appetite to carry such a measure.

“Part of the challenge of all the last legislative session (was that) everyone, both Democrat and Republican, was messaging about public safety and how they are tough on crime,” he said. “There shouldn’t be any criminalization ordinances that target people based on their poverty level point blank. That’s not where the political winds landed.”

Democratic state Sen. Dallas Harris also proposed legislation to create a “Homeless Persons’ Bill of Rights.” The bill would have enshrined in state law those experiencing homelessness had the same rights as everyone else and could bring a civil action lawsuit if those rights were violated.

The bill, which was opposed by cities, counties and law enforcement throughout the state, didn’t make it out of committee.

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