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Civil Rights

Oct. 16, 2023

California abdicating duties on housing people who are unhoused

The state has enough tools to address our homelessness crisis without seeking the Supreme Court's intervention to allow for citing and arresting unhoused people, which ultimately makes it harder for these individuals to permanently exit homelessness.

Brandon L. Greene

Director of policy advocacy , Western Center on Law & Poverty, Inc.

With more than 170,000 people experiencing homelessness in California, most of whom are Black and Brown, many government actors are seeking clarification on their ability to sweep unhoused people out of public view. More pointedly, these government actors, after several losses in lower courts, are asking for a blessing from the highest court to remove unhoused people from the street without any guarantees of building or investing in either enough shelter or enough housing for those who need it.

The epidemic of houselessness is ever present - touching every area of our state, and now every area of our legislative and legal systems. The historic reach of the problem is now forcing our big blue state to stretch. How we choose to do so is the question. At present, our cities and counties are reaching past the courts, perceiving them not as arbiters of facts or interpreters of the legal boundaries of enforcement, but rather as obstacles. Treating the lower courts as a scapegoat in their lackluster efforts to address this crisis, several counties and cities have asked for Supreme Court intervention. The goal is to overturn a series of decisions that protect the civil rights of the unhoused in Johnson v. Grants Pass.

In 2018, the U.S. Court of Appeals for the Ninth Circuit ruled in Martin v. Boise that cities cannot enforce anti-camping ordinances against unhoused people without shelter beds available for them. The Boise decision rests on the undisputed fact that human beings need sleep in order to sustain life, and a City's failure to provide a sheltered place to rest or sleep, paired with the active criminalization of sleeping outdoors, is inhumane under the 8th Amendment.

Johnson v. Grants Pass is the Ninth Circuit's recent ruling that modestly expands Boise to include administrative enforcement of anti-camping ordinances and prohibitions on using blankets and pillows to sleep. And the Coalition on Homelessness and several unhoused individuals sued the City of San Francisco over their violation of Boise and other policies on the books for destroying encampments without offering shelter to residents.

The current litigation in San Francisco led by the Lawyers' Committee for Civil Rights of the San Francisco Bay Area and the ACLU of Northern California has resulted in amplified political rhetoric from City officials and opponents. Sacramento District Attorney Thien Ho has sued his own city council over the issue of enforcement. Advocates and people who work with those experiencing homelessness are rightly concerned as criminalization and stigmatization of the unhoused will provide neither long nor short-term relief from the housing affordability crisis gripping our state.

The core issue driving the homelessness crisis in California is the chronic lack of investment in housing and a shortage of available shelter beds. Because none of these cities, including San Francisco, Sacramento, and San Diego, have adequately built the necessary affordable housing and shelter infrastructure, nor have they invested in the wrap-around services necessary to support people exiting homelessness, they have placed themselves at odds with the central part of the Boise decision in their attempts to criminalize homelessness. In short, it is unlawful to punish people with the threat of incarceration just because they are too poor to afford a home amidst skyrocketing rents.

Governor Newsom and many Democratic mayors are attempting to circumvent the lack of available beds and housing by challenging these decisions through the legal system, without doing the necessary work of simply creating beds and housing. This after a shameful history of intentionally refusing to make housing affordable as a way to exclude low-income communities of color. Ironically, this is happening as the state is discussing next steps in the wake of its first in the nation reparations task force which highlighted the detrimental impact of homelessness on Black Californians.

The state has enough tools to address our homelessness crisis without seeking the Supreme Court's intervention to allow for citing and arresting unhoused people, which ultimately makes it harder for these individuals to permanently exit homelessness. A ruling from SCOTUS would bind every state, city, and county nationwide to their decision and take flexibility and accountability away from local governments. The worst outcome would allow the government to criminalize people stuck without reasonable options for affordable housing. In the short term and long term, a bad US Supreme Court decision could lead to more deaths of unhoused people, especially during extreme weather events and public health crises. It would also make blatant poverty discrimination legal.

Every major California city already has ordinances banning camping, many in front of "sensitive" areas like schools, day-care centers, and parks. In Sacramento, camping in front of City Hall is limited to certain hours. With or without these court decisions, nothing prevents cities from providing basic sanitation services to those living on the streets, such as regular trash pick-up, toilets, and shower facilities, which would address many of the public health concerns raised by housed and unhoused residents alike.

Once a tactic embraced by conservatives, the criminalization of homelessness has now been embraced by leaders from the left as a means of addressing the problem, in stark contrast to what housing advocates and social science researchers know to be effective.

The Supreme Court does not hold the answers to our crisis. Governor Newsom is essentially asking the court to absolve the government of its failures, and to use state power to perpetually disrupt and disrespect the constituents it would rather not see or deal with by allowing indiscriminate sweeps of homeless encampments. Sweeps involve more than physically moving people, they often include the removal, towing, and trashing of people's belongings, and uprooting residents and moving them out of sight and still without adequate resources like restrooms and running water. Even if the high Court takes up the case, no holding or dicta will stop the growth of the population of unhoused Californians. Building more housing and shelter will.

The only way to address homelessness is to ensure that everyone has access to a healthy and safe home that they can afford. And that must be combined with access to free or low-cost health care appropriate to an individual's needs, access to good wages girded by a strong safety net, and more access to affordable housing in all communities.


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