By Erica C. Barnett
City attorney Ann Davison announced Monday that the city has filed an amicus brief asking the US Supreme Court to overturn a Ninth Circuit District Court ruling that restricted the ability of Grants Pass, a city in southwestern Oregon, to criminalize sleeping in public places. In a statement, Davison said Johnson v. Grants Pass “strips local authority from a complex problem” and denies “local autonomy” to cities like Seattle.
Under a separate Ninth Circuit ruling called Martin v. Boise, cities are not allowed to remove homeless people from public places in most circumstances unless there is shelter available. In the Grants Pass ruling, a panel of three Ninth Circuit judges agreed with lower courts that the city’s anti-camping ordinance, which imposed fines and criminal penalties for sleeping in public and banned homeless people from using items like blankets, cardboard boxes, and pillows, is unconstitutional.
The brief—which was also joined by the National League of Cities, the North Dakota League of Cities, Colorado Springs, San Diego, and about a dozen other cities across the country—argues that by restricting cities’ authority to ban sleeping in public, Martin and Johnson “compel local governments to choose between providing shelter or surrendering public lands to encampments that harm local communities.”
The city of Seattle, in other words, is arguing that Seattle should be able to sweep homeless people without the city having to “choose” to provide them places to go.
Additionally, they are arguing that calling unsheltered people “involuntarily homeless” grants a special status on people who are, in reality, engaging in a voluntary behavior by sleeping outdoors, much as an alcoholic who is caught being drunk in public has chosen to drink of his own volition. (This is from a real Supreme Court case from 1968, whose conclusions many modern addiction experts would probably dispute).
Seattle has its own ban on sleeping in public that allows sweeps in two general situations. In some cases, the city gives people living in an encampment 72 hours’ notice that they have to leave the area, then offers shelter to the people who remain. This, in theory, meets the requirements of Martin—even though, as many advocates for unsheltered people have pointed out, the city’s “offer” may be for shelter that is across town, requires a person to abandon their spouse or partner, or is inappropriate for a person’s behavioral or physical health conditions.*
Many people decline to “accept” these untenable shelter offers, which has caused city to suggest the real problem is people “refusing” shelter, rather than a lack of appropriate shelter and housing. “A 2021 study in Seattle found that offers of shelter were declined 52% of the time,” the brief notes, echoing these perennial claims. “Undoubtedly, sleeping outdoors can afford more freedom and autonomy than congregate sleeping arrangements. But this also shows that, at least for some people sometimes, personal decisions and preferences can play a role in whether someone continues to be unsheltered.”
The brief even suggests that rules banning encampments are like city zoning laws that prohibit certain uses in residential areas, citing a 1974 Supreme Court ruling (on frat houses, of all things) that allowed to establish “zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” Unsheltered people, according to the brief, “directly undermine these legitimate aims and turn zoning schemes into hollow promises.”
In recent years, it’s become common for the city to exploit a loophole in the rules governing encampment sweeps to remove people and throw away belongings, such as tents and survival gear, without notice. In these case, the justification is that any person or object occupying a public space, including remote areas of public parks, constitutes an “obstruction” to the public’s use or potential use of that space. Earlier this year, a King County Superior Court judge ruled this interpretation of the city’s rules unconstitutional on privacy grounds; Davison immediately appealed that case, and the sweeps continue.
The city’s argument, as expressed in the brief, is a muddle of conflicting perspectives. The brief argues that requiring cities to choose between sweeps and shelter for every homeless person is an unconstitutional imposition; cities already spend hundreds of millions of dollars on homelessness, but the problem is only getting worse, which shows that spending money isn’t going to fix the problem. Since that’s the case, the brief continues, cities should be allowed to sweep encampments using whatever criteria they deem necessary, because encampments “monopolize common spaces like parks and sidewalks” and create “enormous volumes of garbage, human waste, and other health hazards like used needles.”
“A town that is not allowed to keep its sidewalks clear and parks open is not really a town at all. It is just a cluster of people living close together,” the brief concludes.
The brief even suggests that rules banning encampments are like city zoning laws that prohibit certain uses in residential areas, citing a 1974 Supreme Court ruling (on frat houses, of all things) that said cities could establish “zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” Unsheltered people, according to the brief, “directly undermine these legitimate aims and turn zoning schemes into hollow promises.”
“A town that is not allowed to keep its sidewalks clear and parks open is not really a town at all. It is just a cluster of people living close together,” the brief concludes.
If the Supreme Court takes up the case, it could overturn rules specific to the Ninth District that make it harder for cities to simply sweep homeless people from public places. But even if Seattle wins the right to sweep people with impunity, it won’t change a basic reality: Homeless people don’t stop existing—and needing to sleep, eat, discard trash, and use the restroom— just because cities pass bans on sleeping and deny them access to resources, like trash cans and indoor plumbing, that the rest of us take for granted.
*Other programs exist that do route people to appropriate shelter, services, and housing, but these involve extensive outreach and engagement, and are generally separate from the city’s encampment removals.
About damn time. Grow up, get off the smack, or move along. Portland is calling you.
Yes! Lack of affordable housing is the problem and affordable housing will solve the homeless crisis. Read: HOMELESSNESS IS A HOUSING PROBLEM by Colburn and Aldern, local guys. I want folks off the street too. So for now, until we have enough affordable housing, let’s force King Co to provide enough safe parking zones and sanctioned permanent tent cities.
Thanks for that clarification. I can’t say that I agree with your take on this; I am against the upzones. I believe the new construction is inferior in quality and is not priced at a rate that many of the folks now on the streets could pay. It’s unrealistic to expect that any developer is going to build below-market rate dwellings of whatever sort without massive taxpayer subsidies, which may be difficult or impossible given how many and how high taxes are already. Meanwhile, we see what developers ARE building as they tear down more modest homes that likely would command lower rents if available–they are building things that even full-time tech workers can have trouble affording. IMO, we are not going to resolve this with upzoning. And we are already beginning to experience the tax increases that are coming with increased population as that increase strains our vital infrastructure like water, etc.
Partly true, partly that’s because there’s been only a small upzone so they’re starting with the most expensive market segment of the huge backlog.
The world population is still growing for another few decades and millions of climate refugees will come here in that time as well. We just need to build the infrastructure.
But I agree, capitalism can’t really solve housing, that’s why scaling up I-135 is so important.
Now you just need to recognize that people evicted due to that housing shortage are not “choosing” to camp
You bring up a point, maybe tangentially, that I’ve been thinking about: How can there be such a huge demand for housing when since the late 60’s we’ve had birth control and people are not still having enormous families (I’m the oldest of 12 and am old now)? Are all the people in the middle of the country moving to the edges like here? There certainly seem to be many fewer families the size of the one I grew up in, and my huge Boomer generation are dying now, freeing up dwellings, and we’re doing our best as a country to exclude high fertility people from other countries, so what supports the whole population pressure reasoning? I don’t buy it; I think it’s one of many excuses made to hide the giveaways to the developers. As you can see, I’m not a fan.
Thankfully this won’t even be taken up by SCOTUS. It violates Martin v. Boise. The brief is fighting the wrong case, immediately invalidating it.
Martin v. Boise is also a Ninth Circuit case. They are challenging both cases through this petition (“The Ninth Circuit’s decisions in Martin and Johnson tie the hands of local policymakers and make solving
this crisis harder.”). The Supreme Court doesn’t have to follow the Ninth Circuit.
A single brief can only challenge a single ruling. Regardless of one’s view on the matter in general, this is just misfiled, which is why it will fail.
A single brief can challenge a rule that the Ninth Circuit initially adopted in Martin and then reaffirmed in Johnson, as long as the cert petition is timely filed after the later case. You may recall that in the single case Dobbs, the Supreme Court recently overturned its own decisions in both Roe v. Wade and Planned Parenthood v. Casey and about a thousand lower court cases. Same idea. My personal view on this matter is that SCOTUS should deny the petition and let Martin and Johnson stand, so don’t fear that my personal views are clouding my opinion here.
SCOTUS may or may not decide to take this up. If it doesn’t, it won’t be because it would be overruling a 9th Circuit case because SCOTUS is the superior court to Courts of Appeal. Maybe brush up on your civics? And as I’ve said several times, including here, I don’t believe Martin stands for what it’s being cited for; it is factually dissimilar and a very narrow opinion.
Have to say I support Ann on the community autonomy angle.
How about autonomy for camps from the police rather than autonomy of police from
checks and balances in the courts?
Seattle needs to recall Ann Davison.
It’s the 9th CIRCUIT, not the 9th “District” for starters. Second, you appear to have fallen prey to the prevailing story about Martin, but if you read the decision, it is much narrower and the facts quite different from how it’s being used in political talk here in Seattle, no doubt because it’s true holding doesn’t support all it’s being used for here.
I am delighted Ms. Davison is finally taking the side of the majority of us out here who have been paying and paying and paying and getting very little for our money besides talk as the actual problem festers and deepens. I hope she succeeds. It’s time for the tyranny of the minority to end.
The minority is the landlords and you’re playing right into their hands
I don’t understand your statement or what it has to do with my post. The minority I meant was the street campers as v. all the rest of us. I am in sympathy with landlords and believe the City has gone too far in making their lives difficult.
Pat, it seems like you understood me after all. The landlords are the reason there is any street camping at all. They’re the ones who stopped the upzones and monopolized the remaining housing and make more and more people homeless by eviction and lobby for making homeless peoples lives ever more difficult. Landlords aren’t dying in record numbers, homeless people are. I wish it were otherwise