Crucial, not cruel and unusual: The Supreme Court weighs homelessness regulations

To address homelessness, cities around California and the US have tried to implement bans on camping on public property. But legal challenges have paused enforcement, and the Supreme Court is poised to rule in City of Grants Pass v. Johnson. At stake is the ability of public officials to craft nuanced policies that address homelessness.

The class action lawsuit challenges the constitutionality of anti-camping ordinances in a small Oregon town, but the impact of the Justices’ ruling will be especially strong here in California. More than 123,000 Californians don’t have shelter – nearly half of the total unsheltered population in the US.

While the challengers in Grants Pass argue that camping bans effectively criminalize homelessness, public officials contend that these ordinances are a critical tool to address public safety issues that arise from homeless encampments. About 30 California cities and counties, as well as the League of California Cities, have filed amicus briefs supporting Grants Pass.

San Francisco and Sacramento, like Grants Pass, have been under injunctions from federal courts that prevent or delay enforcement of anti-camping laws based on the 2018 Martin v. Boise decision. That ruling asserts that arresting or citing people for sleeping on public property violates the Eighth Amendment’s cruel and unusual punishment clause if the individuals have nowhere else to go.

The Martin decision has left municipalities with few options to address encampments if shelter availability can’t be confirmed on the spot. This, of course, is a nearly impossible task for public safety officers given that the number of open shelter beds is constantly in flux. But many public officials, including San Francisco Mayor London Breed and Governor Gavin Newsom, argue that prohibiting local governments from clearing encampments is neither a workable nor compassionate policy for addressing homelessness.

In our 2022 Hoover Institution report on the state of homelessness in California, we highlighted that law enforcement plays a crucial role in addressing the challenges faced by the unsheltered. Finding practical solutions has only become more relevant as the number of people experiencing unsheltered homelessness continues to grow.

Encampments can be serious safety and environmental hazards, as well as hotbeds for criminal activity like drug dealing and violence. San Francisco firefighters responded to over 680 encampment fires in the first 300 days of 2023 alone, and earlier this year a Los Angeles fire captain was injured by an explosion while battling an encampment fire.

Opponents of camping bans argue that they perpetuate a cycle of interactions with the justice system, but this ignores the reality that these ordinances are key tools used by law enforcement to motivate homeless individuals to accept social services. In fact, many camping ordinances require advance warnings and multiple citations before any arrests can be made.

The Supreme Court’s upcoming decision on Grants Pass will be a monumental one for California officials struggling to end homelessness. Californians know well that solving homelessness requires an expansive toolbox, and anti-camping ordinances are a key lever for encouraging people to get the help they need.

The court should give the power to address homelessness and maintain public safety back to the municipalities who deal with these issues firsthand, rather than constitutionalizing a right to vagrancy from the bench.

Joshua Rauh is the Ormond Family Professor of Finance at Stanford’s Graduate School of Business and a senior fellow at the Hoover Institution. Jillian Ludwig is the research program manager for the Hoover Institution’s State and Local Governance Initiative. They are authors of “Homelessness in California: Practical Solutions for a Complex Problem“