The homelessness crisis in America is set to come to a head with a Supreme Court ruling as early as this spring, in the case of Johnson v. City of Grants Pass, Oregon.
The Supreme Court could—depending on what it decides—force changes in city ordinances and homelessness policies across the country.
The decision is one of the most anticipated in years for San Francisco and other cities facing legal challenges from homeless people and advocacy groups.
At the heart of the case is the challenge by three homeless people to ordinances in the Oregon town of Grants Pass that prohibit homeless people “from using a blanket, pillow, or cardboard box for protection from the elements.”
The decision applies across nine western states, Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
Officials are left with two unappealing choices: let the sprawling encampments stand, or provide immediate emergency housing far beyond what their strained budgets allow for.
The Supreme Court, which announced on Jan. 11 that it will review the case, must either uphold or throw out the 9th Circuit’s ruling.
In San Francisco, the crisis is so severe that residents are fleeing a city they have long cherished as one of the world’s most beautiful and livable locales, not to mention a dynamic tech hub. Nearly 8,000 people now live on the streets there.
Rampant public drug use, panhandling, urination, defecation, and other unruly conduct have taken over some areas of the City by the Bay and the city’s administration’s inability to enforce its own laws and clear out homeless encampments makes the crisis much worse.
“San Francisco is a mess, and even if it were to reduce its homeless population modestly, by a third, the streets would still look worse than most American cities,” Stephen Eide, a senior fellow at the Manhattan Institute who studies homelessness and public policy, told The Epoch Times.
The city is a battleground for myriad legal, social, economic, and political forces amid rising public alarm about homelessness. Lawyers there want to press pause on their own court battle over an injunction forbidding the police from cracking down on homeless camps. In their view, the looming Supreme Court case will render other legal struggles moot.
Homelessness advocates insist that longstanding legal precedent guarantees rights to people living on the street, and the city is not free to disregard those rights and take away homeless people’s property without due process, just because some of the homeless commit more serious violations and spark a public outcry.
But others who have studied the issue find providing housing for ever-growing numbers of homeless to be an unsustainable burden for cities and towns struggling to stay solvent.
A Protracted Battle
San Francisco’s impasse has its roots in a lawsuit that a local advocacy group, the Coalition on Homelessness, launched in September 2022 with the aid of the ACLU Foundation of Northern California, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and the global law firm Latham & Watkins. Also named as plaintiffs in the suit were seven people who were, or had recently been, homeless.One goal of the lawsuit was to stop the city from arresting and ticketing people who lived on the street, and clearing out their encampments—in short, to put an end to sweeps of homeless settlements and to put pressure on the administration to ramp up temporary housing for the undomiciled.
In a Dec. 23, 2022, ruling, Judge Donna Ryu of the U.S. District Court for the Northern District of California slapped the city with a preliminary injunction, denying it the power to enforce or threaten to enforce laws and ordinances that barred “involuntarily homeless individuals” from lying, sleeping, or sitting on public property.
Judge Ryu sided with the plaintiffs who believed that San Francisco Police Department (SFPD) actions had violated their Fourth Amendment right to be secure in their persons and possessions against unreasonable searches and seizures.
“Plaintiffs have presented significant evidence of a practice of seizing and destroying of homeless individuals’ unabandoned personal property in violation of the Fourth Amendment … and San Francisco’s own bag and tag policy, which clearly requires the City to store personal property so that homeless individuals may retrieve,” the judge wrote.
On Jan. 11, another Ninth Circuit Court ruling clarified the definition of “involuntarily homeless” while substantially upholding the injunction.
Instead of appealing. San Francisco City Attorney David Chiu on Jan. 17 has filed a motion to essentially pause proceedings to wait for the Supreme Court decision on Grants Pass.
“It makes no sense to spend months litigating this case and expend enormous resources collecting evidence and expert testimony when the entire legal landscape may soon change,” Mr. Chiu said in a statement.
Protecting Homeless Rights
Jennifer Friedenbach, executive director of the Coalition on Homelessness, the organization that sued the city of San Francisco for seeking to break up encampments and penalize those living on the streets, sees fundamental legal and human rights at stake in the controversy.“It’s about the illegal destruction of homeless people’s property, it’s about the city not accommodating people’s disabilities in their street operations, the broader categories,” Ms. Friedenbach told The Epoch Times.
The Supreme Court has many issues to consider.
“What the court is doing is looking at whether or not you can arrest people who have no other choice but to be on the streets. The city wants to be able to arrest people who have no other choice, and we think that’s wrong, and would like to see the city work to get people into shelters and housing,” said Ms. Friedenbach.
Arresting the homeless doesn’t solve the problem, she said. In fact, such an approach makes the crisis worse, because those with arrest records find their personal credit and their work prospects ruined.
“There’s nothing about arresting homeless people that addresses the issue. They lose contact with outreach workers, they’re on the public housing waitlist, and then they get kicked off the waitlist,” she said.
Ms. Friedenbach contrasted this approach with one that emphasizes connecting the unhoused to services that can help them and to personnel with specialized training in working with the homeless.
“In the end, it’s about how we can have an effective response to homelessness, using whatever municipal dollars we have available. That’s what we need to move towards, rather than these political approaches that make the problem worse and waste city dollars,” she said.
Ms. Friedenbach also takes issue with the notion that the homeless migrate to places such San Francisco and Los Angeles because they are warm most of the year, have relatively generous public services, and have a culture more open to nontraditional lifestyles.
“Some think that that’s how it operates, but people move for very complicated reasons. If you look at homeless people, it’s very similar to other migration patterns—moving for family, for jobs,” she said.
Ms. Friedenbach called such negative assumptions about the homeless a trope that politicians tend to exploit.
“They say, ‘If we do more for the homeless, then more of them will come.’ It lets them off the hook, it creates xenophobia. Politicians try to repeat that over and over again, so that there’s less empathy,” she said.
Decision to Uphold
If the Supreme Court upholds the Ninth Circuit Court’s ruling in Grants Pass, then its decision will maintain a status quo that cities and towns with ordinances against camping out on sidewalks are likely to resent.The situation in many municipalities will deteriorate further as a steadily growing homeless population puts ever greater strains on municipal services and more residents express frustration, experts say.
But that’s probably not the decision the highest court will make, believes Mr. Eide.
“Most people are expecting that the Supreme Court will reverse the Ninth Circuit Court’s decision; that it wouldn’t have taken up the case if it weren’t going to revise it somehow,” he said.
Mr. Eide expects wide repercussions, though some parts of the country will see far more dramatic outcomes than others, particularly those with milder climes that attract disproportionate numbers of the unhoused.
“It’s going to have great implications within the Ninth Circuit—that is where America’s unsheltered street homeless problem is concentrated. When you talk about the crisis of street homelessness, the problem of tents everywhere and infectious disease outbreaks, you’re mostly talking about California and other West Coast communities,” Mr. Eide said.
Decision to Toss
If the Supreme Court throws out the Ninth Circuit Court decision on Grants Pass, it will effectively free up municipalities to crack down and to arrest or ticket homeless people who congregate in public without having to have emergency shelter set aside for them all.
While this may give local officials and police significantly more freedom, it will also make them more directly answerable to citizens who are navigating homeless encampments in their neighborhoods.
“One way to think about what this ruling would mean is that politicians can no longer say their hands are tied, and they cannot deal with all the tents, which is what many of them have been saying in recent years,” Mr. Eide stated.
“Some communities, like Portland, Oregon, and Phoenix, Arizona, have tried to work within the existing legal framework, but what you’ve heard a lot is that we’re totally constrained, we would like to do more, we hear the public wants us to do more, but we can’t do anything. So, in a way, the Supreme Court will be calling these politicians’ bluff,” he said.
But Mr. Eide stressed the importance of having some historical perspective on the homelessness issue, and noted that it has been around long before the current court cases.
“When you’re very slow to act, the problem tends to build, and then you’re left with very bad options. If you don’t prevent the numbers from growing, then at a certain point it becomes a question of harm minimization,” said Mr. Eide.
“So, one hopes, this ruling will motivate more state and local leaders to be more proactive about not letting the tents get so completely out of control.”
As complex as the situation may be, Mr. Eide sees little value in the stance that the Ninth Circuit Court has taken, and its ramifications for cities and towns with limited budgets. To ask them to refrain from taking action against encampments unless they can provide shelter for all unhoused persons is not only unrealistic, but can sometimes fuel resentment on the part of one city or town towards another.
“What the Ninth Circuit has said is, I think, just kind of extreme—the idea that you need to ‘house your way’ out of this even if you’re a small community, even if people living on your streets are not even from your community. It’s very awkward, and the results on the streets speak for themselves,” he said.
Public officials in some cities, even those who profess their progressive views, are sometimes leery of providing for other municipalities’ homeless overflows, Mr. Eide observed.
“This often comes up, and I’ve actually heard officials in San Francisco say, ‘Our tax base can’t provide for everyone in California who lives in a tent,’” he said.
Given the likelihood that the Supreme Court ruling will supersede local injunctions and decrees, San Francisco has taken the right course in seeking to pause the legal battle over Judge Ryu’s injunction, believes Zac Clark, executive director of the HomeMore Project, a San Francisco nonprofit devoted to finding solutions to homelessness.
“I agree with San Francisco filing for a Motion for Stay, as the outcome of the Grants Pass case with the Supreme Court could make the matter irrelevant,” Mr. Clark told The Epoch Times.
“Cases like these speak to the irony of trying to address homelessness through multiple layers of bureaucracy, where our dollars and intellect are spent in a courtroom instead of on the streets trying to address the root of the situation.”
San Francisco Mayor London Breed’s office didn’t immediately respond to a request for comment.
