Do Unhoused People Have Constitutional Rights?

The Supreme Court will deliberate this Spring

Today we’re talking laws! Courts! Civil Rights! Oh my!

We’ll keep it fairly jargon free, and I promise that it’s important. You know I wouldn’t bring it to you if it wasn’t.

Last week, the Supreme Court announced that they will hear Johnson v. Grants Pass, a case that has been tried up to the Ninth Circuit Court and filed for a final appeal. The city of Grants Pass, OR is appealing the verdict in this case, as they were initially sued for pursuing criminalization of homelessness without providing adequate shelter. Grants Pass didn’t get the verdict they wanted and is being restricted in their efforts to close encampments. But to understand this case, though, we have to go back a few years to a different one.

In 2009, six unhoused people in Boise, Idaho partnered with a legal team to sue the City over its anti-camping ordinance. This case, Martin v. Boise, also went to the Ninth Circuit Court, which made a ruling in 2018 that has since changed the dynamic between municipalities and their unhoused, unsheltered population. Similar to Johnson, the questions at the center were: Do municipalities have the right to criminalize homelessness? If so, in what forms, and to what extent.

The Ninth Circuit ruled in Martin that it is unconstitutional to punish people who are experiencing homelessness when they have nowhere else to go. The basis for this ruling was the 8th Amendment, which protects against “cruel and unusual punishment” and “excessive fines.” The court ruled that punishing homelessness when there were not available alternatives violated the 8th Amendment rights of unhoused people. When Boise tried to appeal to the Supreme Court, they were denied, and so the verdict stuck.

This ruling had an immediate impact in both positive and sly ways. Where the Ninth Circuit covers, (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington,) there was an early reduction in encampment closures, sweeps, and penalties for homelessness. Of course, these still took place because a court ruling is only as good as it is enforced, but it definitely felt on the ground (I was doing this work in LA at the time) like some power had shifted.

It didn’t take long though for municipalities to think through some loopholes, and that is where some of the vulnerabilities of the Martin decision were exposed. The ruling stated that homelessness could not be criminalized if there was not adequate shelter available. What it didn’t specify was what constituted “adequate” shelter in terms of quality, proximity, and type; nor did it specify how many new available beds could justify criminalization. Does there have to be a bed available for everyone, or can we get away with a more lenient ratio of needs to resources?

I would also personally add that a weakness of the ruling was its dependence on shelter availability rather than housing. You can read more about my feelings about shelter here, but suffice to say that I fundamentally disagree that anyone should be required to go to shelter, as shelters are not demonstrably safer or better for the people who live in them versus the streets, and they do not end homelessness.

In so many ways, the Martin decision made municipalities think twice about how they went about criminalizing—so they did think about it twice, and then a bunch more times, and then came up with ways to continue criminalizing by exploiting the weak language of the ruling.

Los Angeles notably launched A Bridge Home, an initiative to build lower cost, easily buildable and transportable structures to serve as shelters in high-density areas. It was touted as Mayor Eric Garcetti’s compassionate response to homelessness—that these shelters (they preferred the term “bridge housing” to sound better, but it’s the same thing) would be a way to mitigate unsheltered homelessness and speed up the process to permanent housing.

I know this first hand because I fell for it—I helped stand-up and was part of the first year of operations at A Bridge Home Hollywood. Despite my trepidation around shelter, I knew it was a need in Hollywood (we had zero shelters at the time) and could be a net positive.

What was downplayed in the beginning, though, was that once the shelter opened, a large zone around it would be designated as a no-camping zone and strictly enforced. You can see the influence of Martin here clearly: We’re not allowed to criminalize if there’s not shelter, so let’s make a big show of building a shelter and then designate a new no-camping zone around it. The problem was, and remains, that the shelter had about 70 beds, and the number of people who lived unsheltered in the new enforcement zone was close to 500. It obeyed the letter of the law while spitting in the face of its spirit.

These same tactics were used throughout the states covered by the Ninth Circuit, and beyond. The sudden renewed interest in mass-sheltering since 2018 is a direct response to Martin v Boise, and governments’ goal to intentionally subvert it. A Bridge Home was actually just a Bridge to Nowhere, a poor excuse to criminalize homelessness in Hollywood while the shelter residents remained stuck in the same broken system for years.

Fast-forward to now: The Supreme Court looks different than it did in 2018 when it declined to hear a challenge to Martin. This new case is the highest profile equivalent to Martin that we’ve seen, and now it’s going before the highest court in the land.

Here’s the good news:

Courts across the US have been consistently ruling in favor of unhoused people’s civil rights—citing the 8th Amendment as discussed above, as well as the 1st Amendment (right to property), the 4th Amendment (protection from unreasonable search and seizure), and even sometimes the 14th Amendment (right to privacy.) If the Supreme Court rules similarly to the way courts have been ruling, it could reinforce the rights of unhoused people across the US in a way we haven’t really seen. Additionally, in the last decade plus there have been groups like the National Homelessness Law Center that have ensured that these cases get the best representation.

Here’s the bad news:

We just don’t know what this Supreme Court will do. As we’ve seen the last couple years, we can’t take any of this for granted. It’s also important to recognize that we can’t depend on the legal system to save us—these same courts have fueled mass incarceration, allowed our social safety nets to be demolished, and persistently protected the rights of the rich to pilfer the poor. A “victory” in Johnson will not secure safety and care for the most vulnerable. Like with Martin, the forces that intend to do harm will rise to the new occasion, and we’ll need to be ready.

Here’s the Conclusion:

Unhoused people, whether mayors and governors like it or not, are constituents and residents of their cities, states, and of the United States, which affords them particular rights that are supposed to be inherent and inalienable even if it inconveniences us or makes us feel bad. We will see whether or not the Supreme Court will affirm this, but we must be committed to treating unhoused people as the fellow citizens and neighbors that they are regardless. For those of us who are Christians, the law of the land was never supposed to be our rubric anyway, even as we hope and work for the protections it may afford.

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