Are Homeless Encampments Legal?

Supreme Court to decide what cities and towns can limit in landmark case

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Photo by Randy Laybourne on Unsplash

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As the number of Americans experiencing homelessness has grown in recent years, so too has the prevalence of homeless encampments. In cities as large as Los Angeles to those as small (and smaller) than the one from where I write in Bangor, Maine, tents and mattresses, blankets and pillows, and all of the miscellaneous paraphernalia of a life lived with housing insecurity have become more visible.

This has led to tension. Residents who are upset to see public spaces like parks and trails become the domain of people whose presence is perceived to be a nuisance or who make them feel uncomfortable have butted heads with housing advocates, who say that the homeless often have nowhere else to go. Business owners who are upset by disconcerting behavior that alienates customers and makes their employees uneasy have clashed with progressives who say the community has a responsibility to care for those who struggle the most. Local officials on all points of the political spectrum seem to agree that tent encampments are not a long-term solution for homelessness, but it seems that actual solutions to address the core causes of homelessness are too complex, too costly, or too cumbersome to take on.

Stepping into this debate about the legality of the lowliest of low accommodations is the highest court in the land: the Supreme Court started deliberations this week in the nation’s capital on what is perhaps the most notable case about homelessness to ever appear before its bench: the case of Grants Pass v. Johnson.

Where is Grants Pass and What Does It Have to do With Homelessness?

Grants Pass is a former timber town of about 39,000 people in the southwestern corner of Oregon. Its case before the Supreme Court bubbled up after local officials in Grants Pass took various steps to prevent its homeless population from camping in parks and other spaces. But, in fact, the legal questions at play go back several decades to a case called Robinson v. California, in which a Court struck down a California law that made it a crime to be addicted to narcotics, saying that while people can, in fact, be punished for the sale and even the use of narcotics, they can not be penalized simply for being addicted.

Flash forward to 2018, when a federal appeals court used the basis of the Robinson case to determine that cities and towns could not penalize people for sleeping outside when they have nowhere else to go. In other words, much like a person could not arrested for being addicted to drugs, a person could not be arrested for being homeless. This 2018 case was called Martin v. Boise, and has provided much of the legal framework for policy around homelessness in the years since.

The Martin decision has been challenged numerous times, however, including by some surprising characters including the progressive governor of California and likely future presidential candidate, Gavin Newsom. Governor Newsom recently wrote in an amicus curiae brief to the Court on the Grants Pass case, “Our government officials are trapped, at risk of suit for taking action but also accountable for the consequences of inaction.” In other words, if municipal and state officials clear out a potentially dangerous homeless encampment, the Martin decision holds them legally liable; but if they don’t clear out an encampment in a public space and something tragic happens there, they are also liable. The governor said (correctly, in my opinion) that Martin prevents local officials from clearing encampments that “present often-intractable health, safety, and welfare challenges for both the City and the public at large.”

The city council of Grants Pass is decidedly more conservative than the California governor, but they too want the Martin decision to be overturned, albeit from a much different perspective. While Governor Newsom and his allies are quick to underscore that cities and towns have a responsibility to help transition homeless members of their communities into stable housing and to provide other resources and support, it seems that the leaders in Grants Pass simply want the homeless to move on down the road (like maybe to California).

Consider what Lily Morgan, the then-City Council president of Grants Pass, said at a public meeting in March 2013 when rules and ordinances for the regulation of homeless activity were under discussion. She said:

The point is to make it uncomfortable enough in our city so they will want to move on down the road.

The City of Grants Pass subsequently started to aggressively enforce a patchwork of local ordinances to prevent people from sleeping outdoors or to “use materials to make a temporary place to live.” In the limiting of sleeping outside in parks, Grants Pass broadly defined “parks” to include parking lots, community centers, traffic islands, and other areas owned by the City. Lily Morgan would go on to serve in the Oregon State Legislature representing Grants Pass. Her comments would end up in the current court case.

The fine for violating the Grants Pass ordinance prohibiting sleeping outside is $295 with repeat offenders facing jail time. One might reasonably ask if the homeless members of the Grants Pass community have anywhere else to go. As it turns out, in Grants Pass there is no active low-barrier homeless shelter. By one metric, there are approximately 600 homeless individuals in Grants Pass, but only 100 shelter beds at one single local non-profit, which has some specific barriers to use.

What the Supreme Court Could Decide

The question before the Court is essentially how far a city or town can go to police homelessness, with specific regard to the use of outdoor spaces. Will the result be more akin to the Martin decision, which says that someone cannot be penalized simply for being homeless, or will it be closer to what the officials in Grants Pass would like, which is to have full control of its public spaces and prohibit activities and behaviors it deems to be dangerous or antisocial, broadly defined.

It seems clear that the previous Martin decision and its implementation have lacked the nuance that even some progressive leaders say is necessary in order to ensure their public spaces are safe and equitable. At the same time, creating a new precedent by affirming the actions of Grants Pass would allow cities and towns broad leeway to restrict or limit the actions and activities of their homeless populations. While the California governor may have an eye on public safety but also a goal of getting the homeless into more stable situations with wraparound services, the intent of some more conservative communities may be to make it so hard to be homeless in their communities that those experiencing homeless have to find their way elsewhere (or perhaps end up in jail, or worse).

What Comes Next

Arguments in Grants Pass v. Johnson before the Supreme Court began this past week. The attorney for Grants Pass started the hearing by saying, “Like cities nationwide, Grants Pass relies on camping laws to protect its public spaces. These generally applicable laws prohibit specific conduct and are essential to public safety.”

Certain justices seemed inclined to agree. Others expressed skepticism, like Justice Sonia Sotomayor, who said to the attorney representing Grants Pass, “You don’t arrest babies who have blankets over them, you don’t arrest people who are sleeping on the beach, as I tend to do if I’ve been there a while. You only arrest people who don’t have a second home, is that correct?”

Some justices seemed to want to put the question back onto policymakers rather than it sitting with the Court. Justice Kavanaugh and Justice Coney Barrett both pondered whether the context of the city lacking enough shelter beds should be considered, as well as how people would be taken care of if the Grants Pass policies remained in place. Yet they and other conservative justices seemed incline to support the ability of municipal policymakers to make decisions for their own communities as they deemed fit, which in this case would lead the Court to uphold the Grants Pass ordinances and practices out of respect for local control and local decision-making.

The Supreme Court will likely issue its ruling on the Grants Pass case in late June. Hundreds of communities in all corners of the country will be waiting anxiously, not to mention housing advocates, social service agencies, and homeless individuals themselves such as they are able to monitor a case being deliberated upon in the lofty chambers of the Supreme Court amid their normal tribulations of daily life.

The Larger Context

Based on the way the federal government counts the homeless, there were approximately 653,000 homeless individuals in 2023 in a single-night estimated count. This was up 12% over 2022 and represented the largest number since the single-night count metric was established in 2007. Advocates and economists point to numerous drivers for the increase in homelessness, most notably the high cost of housing in terms of both homes and rents, the waning away of pandemic relief, and the lack of new construction (i.e. supply) of new homes and apartments.

Homeless is not happening in just one community. It is not just an urban problem, and it’s not just in big cities. There are likely thousands of cities and towns across the country that have homeless encampments and, as noted at the outset, there is a lot of tension around these questions.

I can see it in my own community. As the number of homeless people (and encampments) has grown, the city feels a little bit different. There are some local leaders who offer a full-throated defense of the encampments and legislation has even been proposed in the Maine Legislature to prohibit cities and towns from clearing them out, which is just about exactly a 180 from what is happening in Grants Pass.

Others come down on the opposite side of the coin, arguing that parks are meant to be public places, and the presence of homeless encampments precludes other people from being able to use the space. Moreover, the unsettling activity and messes that ares often associated with such camps including drug use and unsanitary behavior are understood to be dangerous to the community as a whole and give the city a bad look to visitors and guests or those considering whether to move here or start a business. I tend to come down in this category, with an added note that I’m not sure allowing people to sleep in parks, along trails, and on our city’s waterfront is actually good for those people; when does the city have a responsibility to step in and say “for your own good we are not going to allow you to sleep outside, especially in the colder weather.” There has to be available shelter beds in a community, though, not to mention sufficient housing options.

For many people, there is also compassion fatigue. There are questions of why there are so many homeless people, and concern about what level of resources will be needed to “solve” homelessness and questions about who will be responsible for paying for these elusive and complex solutions. Our own community has been grappling with these questions for more than a decade (and really much longer), and people have grown as weary of these conversations as they have with the sight of tents in parks and the various wooded areas of the community.

Even if the Supreme Court upholds the Grants Pass ordinances that place limits on its homeless residents, there will still be major questions for policymakers across the country. I think what is most likely to happen is that through Grants Pass v. Johnson, the Court overturns aspects of the Martin v. Boise decision that limited municipalities from clearing out encampments, but that the Court will not specifically say that such encampments are not permissible by cities and towns in certain cases. In other words, the Court will allow towns like Grants Pass that want to have limitations to enact them, but it will also allow communities to decide for themselves if there are circumstances where such encampments might still be allowed. I think that would actually be a fair decision, although it would remand further debate back to town halls from Maine to California about what the rules should be in hundreds of separate communities across the country. The tensions among and between residents and advocates that I discussed at the outset are not likely to be eliminated and may only become more acute following the decisions in Grants Pass v. Johnson.

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Ben Sprague lives and works in Bangor, Maine as a Senior V.P./Commercial Lending Officer for Damariscotta-based First National Bank. He previously worked as an investment advisor and graduated from Harvard University in 2006. Ben can be reached at ben.sprague@thefirst.com or bsprague1@gmail.com.

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Author’s Note: The Sunday Morning Post is three years old! It is now a kicking, crying toddler. Stay tuned either next week or the following week (TBD) for a special article about the future of The Sunday Morning Post.

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Weekly Round-Up

Here are a few things that caught my eye this week:

• 2024 has now seen its first bank failure, with word breaking late on Friday afternoon that regulators have closed Republic First Bank in Pennsylvania. Republic Bank with its $6 billion in assets and $4 billions in deposits is now in the hands of the FDIC. This makes it smaller than the major bank failures in 2023 including Silicon Valley Bank, but it is a notable failure nonetheless with 32 branches in the Philadelphia area. Read more here and here. The Republic Bank stock had been trading as high as $141/share as recently as January but had dropped to $14 in early April before closing the day on Friday at 4 cents/share.

• The Federal Trade Commission voted this past week to ban non-compete agreements. These agreements can prevent employees from switching companies. The vote passed 3-2 and is considered to be a pro-labor measure; it was opposed by the U.S. Chamber of Commerce. All new non-competes will be prohibited, while existing non-competes will be eliminated other than for senior executives making more than $151,164/year or who have a role in policymaking. The rules will go into effect sometime this fall, but they are expected to be challenged in court. Read more here.

• The New York Stock Exchange is thinking about staying open 24/7. Good idea or nah? I say decidedly….nah. Read more here.

• After getting into the mid-6’s, earlier this year, the average 30-year fixed rate is back above 7%.

• Several realtors reached out to me after reading last week’s article about the future of realtors to share various materials from the NAR including their myths and facts sheet. Although I don’t think anything I wrote last week was actually untrue, I am happy to share some talking points that readers shared with me. View them here or here. In my opinion the biggest sticking point is the NAR is really aggressively trying to now say commissions have always been negotiable when, in reality, I don’t think the consumer (i.e. home sellers and buyers) have actually fairly been aware of that. I do continue to believe, however, that the industry will find a way to fairly compensate agents. Life finds a way.

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  Have a great week, everybody!