Western cities and states have more flexibility to address homelessness following
How they use that flexibility remains to be seen.
In a 6-3 opinion led by the conservative majority, the high court on June 28 ruled in favor of Grants Pass, Oregon, reversing a Ninth Circuit Court of Appeals decision that restricted the ability of states and cities to clear homeless encampments unless there are “adequate” shelter options available.
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The case originated after Grants Pass, a city of roughly 40,000 in southwest Oregon, began issuing fines of more than $200 to people sleeping on the streets. Unhoused people who racked up multiple violations could face jail time.
Grants Pass was accused of violating the 2018 Ninth Circuit Court of Appeals decision in Martin v. City of Boise that prohibited enforcement of public camping ordinances for those who are “involuntarily” homeless because they violate the Eighth Amendment’s ban on cruel and unusual punishment.
The Martin ruling, which had governed policy in the circuit’s nine states, was also overturned in the high court’s Grants Pass opinion.
“Grants Pass is an incredibly important case for local governments,” said Theane Evangelis, a partner in the Los Angeles office of Gibson, Dunn and Crutcher LLP who represented the Oregon city in the Supreme Court arguments.
The Ninth Circuit “decision really caused serious problems up and down the West Coast in nine states,” Evangelis said, noting that some cities saw public camping among homeless people rise by 50% over the last several years.
Homelessness has risen sharply over the last several years, particularly along the
Some consider homelessness the “defining public health and safety crisis in the western United States” today, wrote Justice Neil Gorsuch, who penned the majority opinion.
States and cities have approved and spent billions in bonds to address both homelessness and affordable housing.
The state of California in 2022
Some are returning to voters for additional funding.
A nine-county special district in the San Francisco Bay Area has proposed a
Los Angeles County supervisors voted on June 25 to put a measure before voters in November that would double the county’s homelessness sales tax to a half-cent to fund housing and homeless services. If approved by voters, it would replace Measure H, a quarter-cent sales tax approved by voters in 2017 that was set to sunset in 2027.
Others have had less success. Washington Gov. Jay Inslee failed to convince lawmakers to approve a
Cities and states under the jurisdiction of the Ninth Circuit have found themselves in a state of what Gorsuch’s majority opinion called “intolerable uncertainty” in the wake of the Martin decision, which prohibited enforcement of public camping ordinances if communities did not have adequate shelter accommodation for homeless people. That’s partly because some homeless people opt to turn down offers of shelter, Gorsuch wrote.
For many cities, like San Francisco and San Diego, the new ruling helps validate current city encampment ban laws.
San Francisco Mayor London Breed and San Diego Mayor Todd Gloria, whose cities have passed encampment laws and filed amicus briefs in the case, lauded the decision.
But Los Angeles Mayor Karen Bass was critical, pointing to the success of her Inside Safe program, which she characterized as voluntary.
“The ruling must not be used as an excuse for cities across the country to attempt to arrest their way out of this problem or hide the homelessness crisis in neighboring cities or in jail,” Bass said in a statement.
“The Supreme Court’s ruling is not going to solve homelessness,” said Clara Krager, Bass’ press secretary. “The only way to address this crisis is by bringing people indoors with housing and services as we’ve shown in L.A., where thousands more people came inside than the year prior and the first time in six years that the annual homeless count saw a drop.”
Homelessness in Los Angeles dropped by 2.2% to 45,252, according to the annual “point-in-time” count
More than 4,000 units are expected to come online this year through Proposition HHH and other programs with funding through federal and local sources, Krager said.
The city has $86 million in remaining Proposition HHH bond authorization, after it
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The social bond deal won by Wells Fargo Bank was well-timed and well received, because there has been a low supply of taxable California municipal bonds in 2024, To said.
She also said the use of the bonds to fund housing and other facilities for the homeless, and those in danger of becoming homeless, helped drive up interest for the transaction.
Though San Francisco has made significant investments in shelter and housing, “too often, these offers are rejected, and we need to be able to enforce our laws, especially to prevent long-term encampments,” Breed said.
“This decision recognizes that cities must have more flexibility to address challenges on our streets,” she said.
“Cities’ hands have been tied over the last nine years and the laws have made it impossible for cities to regulate public spaces and exposed them to 35 lawsuits against local governments,” Evangelis said, including the Grants Pass case.
Evangelis made her comments Monday during a webinar on high court decisions that affect local governments hosted by the Local Government Legal Center, a coalition of national local government organizations formed in 2023.
The LGLC, with the National League of Cities, National Association of Counties, and the International Municipal Lawyers Association, was among the hundreds of cities and states across the political spectrum, from California Gov. Gavin Newsom to the State of Texas, that filed amicus briefs urging the court to rule in favor of local governments.
The amicus brief San Francisco filed struck a balance “between preserving important Eighth Amendment protections for unhoused individuals, while recognizing that the Amendment does not strip local jurisdictions of their authority to regulate public property or the ability to address health, safety and welfare issues arising from encampments in public places,” Breed said.
“The cities spoke and the court listened,” Evangelis said, adding the Martin decision’s guidelines would have expanded to the entire country if the Supreme Court had sided against Grants Pass.
Listing all the cities and states who filed briefs in a lengthy footnote, Gorsuch said the “multitude of amicus briefs” proves that Americans have the “energy and skill” to “address the complexities of the homelessness challenge facing the most vulnerable among us.
Gloria, the San Diego mayor, said the ruling reinforced the legality of the city’s approach through its Unsafe Camping Ordinance. The combination of the ordinance and doubling the options for unhoused people in traditional shelters, individual housing and safe sleeping lots has reduced the number of people living on the street in downtown to 826 from 2,104, he said.
“Our approach has not resulted in widespread arrests,” Gloria said. “San Diego remains dedicated to tackling homelessness through compassionate measures.”
Moody’s Ratings has not published a commentary on Grants Pass, but the rating agency has “written on homelessness as a financial challenge that can then become a credit challenge,” said Eric Hoffmann, a Moody’s associate managing director.
“It just depends on how a local government approaches homelessness,” he said.
“We have written in the past that San Francisco’s approval of taxes to fight homelessness is a credit positive,” Hoffmann said. “We made a similar comment when the City of Seattle passed an annual head tax” of $275 per employee in 2017 to fund homeless services. “It was a credit positive.”
The rating agency has also noted that the affordable housing shortage, and how it contributes to homelessness, is a social challenge that poses financial risks, Hoffmann said.
As for the Supreme Court ruling, “the credit implications will depend on how these western local governments use their new flexibility,” Hoffman said. “Previously, they might have been required to provide additional shelter beds. That can be expensive. Perhaps, now they don’t need to.”
“The ruling provides benefits, but it doesn’t reduce the challenge of homelessness and it doesn’t fundamentally reduce the number of people who are homeless, which will remain a challenge in the West,” Hoffman said.
S&P Global Ratings said in a 2021 report that California’s social inequities
“Homelessness is an incredibly complex issue,” Amanda Karras, executive director and general counsel of the International Municipal Lawyers Association, said during the SCOTUS webinar. “There are not easy solutions but the solutions should be at the local level. We’re trying to solve these complex problems and we’re putting a lot of time, money, and resources into it.”
Procedurally, the ruling simply eliminates the Ninth Circuit’s Eighth Amendment test and drastically reduces the role of federal judges as arbiters.
Karras said the ruling means “the return of power to the local policy makers where it belongs and the SCOTUS recognizing that the judiciary shouldn’t usurp that power.”
Critics of the decision, including the American Civil Liberties Union, maintain that it is a constitutional violation to punish unhoused people for sleeping outside if they lack access to shelter. In her dissent, Justice Sonia Sotomayor, joined by Elena Kagan and Ketanji Brown Jackson, agreed that cities and states need “wide latitude” to be able to respond to homelessness.
“It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles,” they wrote. “Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.”