How the Supreme Court’s homeless encampment ban case could play out

SAN DIEGO — The U.S. Supreme Court is set to hear arguments in a federal case out of Oregon later this year that could have sweeping impacts on how local officials in San Diego are able to address homeless encampments.

The high court granted review over lower-court rulings in the case,  City of Grants Pass v. Gloria Johnson, et al., on Friday after months of pressure from an unusual coalition of progressives and conservatives in metro areas across the western United States.

The landmark case challenges Ninth Circuit Court of Appeals rulings that held anti-camping ordinances aimed at preventing unhoused people from sleeping in public places through fines or other penalties as unconstitutional punishment when there is nowhere else for them to go.

For cities like San Diego, which has its own camping ban on the books, the decision that the justices ultimately reach in Grants Pass would reshape the legal paradigm for regulating homeless encampments along streets or in other public spaces.

Elected officials have long lamented precedent from the 2018 case Martin v. Boise that was used by the Ninth Circuit in its ruling in the Grants Pass case, describing it as an overreach by the courts that limits their ability to mitigate health and safety risks in encampments.

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In Martin, the appeals court held that the “cruel and unusual punishment” clause of the Eighth Amendment prevents governments from imposing criminal penalties on homeless individuals “for sitting, sleeping, or lying outside on public property” if there is no accessible alternative.

Gov. Gavin Newsom has been a particularly vocal critic of the ruling, saying in a statement on Friday that the Supreme Court’s decision to hear Grants Pass is an opportunity to “course correct and end the costly delays from lawsuits.”

Newsom was one of many groups to file “amicus curiae” briefs in the case to urge the court to take it up. The City of San Diego and District Attorney Summer Stephan also filed similar briefs.

Unhoused people and their advocates, however, have argued the 2018 decision is an important backstop to prevent adverse harm from policies that impose criminal penalties on life-sustaining activities when there is not another choice, as they often lead to additional barriers that make it more difficult to exit homelessness.

“Advocates on both sides have an interest in bringing all of these issues before the Supreme Court so that a definitive resolution can be made about these critically important questions that affect so many people,” legal analyst Dan Eaton told FOX 5 on Monday.

“The question in the case before the Supreme Court is: how free a hand are cities going to have to deal with this issue of encampments, which is a specific expression of being unhoused,” he continued.

This will be the first time the Supreme Court will directly discuss the ever-growing issue of homelessness and what parameters cities have to police its most visible form. The court has previously declined to hear appeals in similar cases, including an appeal from the City of Boise.

Since then, however, the issue of homelessness has worsened nationwide, driven by rising housing costs, growing income inequality and a pandemic that financially devastated many households. Last year, the number of unhoused people reached 580,000 nationwide.

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In the City of San Diego, the number unhoused people leaving the shelter system has outpaced the number of people falling into homelessness for nearly two years, according to the San Diego Housing Commission.

“The Supreme Court acts in its own time and has decided that now is the time to address an issue that affects not only jurisdictions inside of the Ninth Circuit, but also broadly across the country,” Eaton explained.

The split between the appeals courts was another possible consideration for the justices in deciding to hear the case, as the Martin precedent applies only to the states in the Ninth Circuit’s jurisdiction — Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Arguments for both sides of the case will likely come down to questions about interpretations of the “text, history and tradition of the Eighth Amendment” — notions that the Supreme Court’s conservative majority has been particularly sympathetic to in previous rulings, legal analysts say.

The right to due process granted under the Fourteenth Amendment could also pose a huge constitutional question for the court.

“It really might come down to more of a due process argument. In other words, can you be held criminally liable for a scenario that you can’t avoid,” legal analyst Wendy Patrick said in a conversation with FOX 5 Monday morning. “The goal is to lead people to shelters in every jurisdiction, not necessarily to say, ‘Oh, let’s jump first to criminal penalties.'”

The Supreme Court is slated to hand down a decision in the case sometime in June. When it is issued, it is likely to have a near immediate impact on cities, particularly those in the Ninth Circuit.

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“I think that cities are going to take a broader range of approaches if the Supreme Court ruled in favor of Grants Pass and says that cities ought to have a freer hand,” Eaton said. “It is likely that cities are going to address it, but they won’t all address it in the same way.”

San Diego Mayor Todd Gloria told FOX 5 in September, after the city joined a brief from Seattle in support of the justices taking it up, that the best case scenario for how Grants Pass plays out would be to get some “certainty of what expectations of cities are.”

“What we are hoping for is a ruling that would say that cities can continue their enforcement efforts,” he said, “obviously doing those in the most compassionate ways — the ways that follow best practices and formed by the experiences of those who have lived on our streets.”

Although advocates argue that that efforts like encampment sweeps are more expensive than housing for taxpayers and do little to actually alleviate the homelessness crisis.

“Whether we’re talking about civil penalties or criminal prosecution, what you are doing is you’re trapping the unhoused in a in a cycle of poverty and homelessness, you’re only aggravating the situation,” Eaton said. “That’s the root of the of the Grants Pass ruling.”

“(Advocates) would say, essentially, that by subjecting the unhoused to these punishments,” he continued, “what you’re doing is essentially making it impossible to be unhoused.”

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