California Gov. Gavin Newsom wants the Supreme Court to make it easier to clear homeless encampments. Advocates say that will make the crisis worse.

Members of the US National Park Service clear a homeless encampment from McPherson Square, two blocks from the White House, on February 15, 2023 in Washington, DC.

BRENDAN SMIALOWSKI/Getty Images

• The Supreme Court will review a Ninth Circuit decision protecting unsheltered homelessness. 
• It bars cities and states from clearing homeless encampments if there's not enough space in shelters.
• Some Democrats, including CA Gov. Gavin Newsom, are siding with conservatives on the issue. 

The Supreme Court earlier this month announced it would take up the most consequential case dealing with homelessness in decades.

The case comes out of Grants Pass, Oregon, where local officials were prevented from clearing a homeless encampment by a Ninth Circuit Court of Appeals rulings in Martin v. Boise and Johnson v. Grants Pass requiring local governments to have sufficient shelter beds available before forcing unhoused people off the streets. The appeals court decided in both cases that removing people living on the street without providing alternative shelter violates the Eighth Amendment's protections against cruel and unusual punishment.

State and federal court cases on the legality of clearing homeless encampments reflect a debate between some governments who say they need more authority to protect public safety and address homelessness, and advocates who argue authorities are exacerbating the problem by criminalizing homelessness.

While conservatives have led the charge in pushing to overturn the Ninth Circuit's decision, some Democrats, including California Gov. Gavin Newsom, have also asked the Supreme Court to overturn the ruling, arguing that it makes it difficult or impossible to address the homelessness crisis.

"California's elected officials who seek in good faith to improve what often appears to be an intractable crisis have found themselves without options, forced to abandon efforts to make the spaces occupied by unhoused people safer for those within and near them," the Newsom administration told the Supreme Court in an amicus brief last year.

Phoenix, Arizona, has attracted national attention for a contentious legal battle over a downtown homeless encampment of 1,000 people called "The Zone." Local residents and business owners alleged that the city allowed the encampment to become a public nuisance and even a danger.

Last year, a Maricopa County judge ordered Phoenix officials to clear the Zone. The city responded by threatening citation or arrest for those who refused to leave the street. It also built hundreds of new temporary shelter beds, some longer-term housing, and an authorized outdoor camping area. But the crisis is far from over. As home prices have risen in Phoenix, the county's homeless population has grown by 70 percent since 2017.

The city of Phoenix filed an amicus brief supporting Grants Pass' effort to overturn the appeals court ruling, arguing that the Ninth Circuit "strayed far from the historical origins of the Eighth Amendment."

"Like so many other cities confronting the homelessness crisis, conflicting court decisions have hampered Phoenix's ability to tread forward confidently on a clear approach—and solution—to this growing challenge," Phoenix Mayor Kate Gallego said in a statement to Business Insider. "I hope that the Supreme Court can deliver clarity to cities so that we can focus completely on ending people's homelessness rather than on navigating a web of disparate legal arguments."

The dangers of criminalizing homelessness

Advocates for the homeless argue that the Ninth Circuit decision doesn't prevent local governments from enforcing all kinds of laws protecting public safety when it comes to homeless encampments. It simply prevents them from criminalizing those who have nowhere else to go.

Jeffrey Selbin, a law professor at UC Berkeley and director of the Policy Advocacy Clinic, said public officials' complaints that their hands are tied are overblown.

"In spite of politicians' claims to the contrary, the vast array of public health and safety laws are untouched by the rulings," Selbin said. "Local officials can still cite, arrest, and prosecute people for any other violation of the law, including for all crimes against people and property."

Homeless advocates say that criminalizing homelessness promotes a vicious cycle that only makes it harder for people to find homes.

"If you are living outside and are impoverished, a ticket or a fee is probably something you can't afford, and then you have unpaid tickets, which impacts your credit rating, which makes it harder to find a place to live," said Jesse Rabinowitz, a campaign and communications director at the National Homelessness Law Center. "Or you get arrested and then you have a criminal record, which both makes it harder to get a job and harder to get an apartment."

The most effective way to solve the homelessness crisis is to build more housing of all kinds, from market-rate homes to shelter beds and transitional housing, many advocates say.

But many of the cities that want more power to remove unhoused people from public spaces have a severe shortage of shelter beds, or don't have any at all. Most also have a severe shortage of affordable housing. "In cities like San Diego and San Francisco, they typically have fewer than one bed for every 2-3 homeless people," Selbin said.

The Western states governed by the Ninth Circuit built more than three times as many shelter beds and transitional housing between 2020 and 2023 than states in other parts of the country. Selbin says appeals court's ruling deserves much of the credit for that progress.

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