In Rare Alliance, Democrats and Republicans Seek Kanunî Power to Clear Homeless Camps

Garbage, feces and needles run through the rivers in Missoula, Mont. On the streets of San Francisco, tents are so thick that sidewalks in the Tenderloin neighborhood have become “unofficial open-air public housing.” In Portland, Ore., a blaze shut down an on-ramp to the Steel Bridge for several days in March after campers tunneled through a cinder block wall and lit a campfire to stay warm.

In a surge of legal briefs this week, frustrated leaders from across the political spectrum, including the liberal governor of California and right-wing state legislators in Arizona, charged that homeless encampments were turning their public spaces into pits of squalor,and asked the Supreme Court to revisit lower court decisions that they say have hobbled their ability to bring these camps under control.

The urgent pleas come as leaders across the country, and particularly in the West, have sought to rebound from the coronavirus pandemic and restore normalcy in cities. In more than two dozen briefs filed in an appeal of a decision on homeless policies in a southern Oregon town, officials from nearly every Western state and beyond described desolate scenes related to a proliferation of tent encampments in recent years.

They begged the justices to let them remove people from their streets without running afoul of court rulings that have protected the civil rights of homeless individuals.

“The friction in many communities affected by homelessness is at a breaking point,” the attorneys for Las Vegas, Seattle and more than a dozen other cities, as well as national municipal organizations, wrote in one brief. “Despite massive infusions of public resources, businesses and residents are suffering the increasingly negative effects of long-term urban camping.”

Homeless rights advocates agreed that tent encampments were unsafe both for their vulnerable occupants and the communities around them. But they said the gathering legal campaign was merely an attempt to fall back on timeworn government crackdowns rather than pursue the obvious solutions: more help and more housing.

“They’re seeking to blame and penalize and marginalize the victims rather than take the steps they haven’t found the political will to take,” said Eric Tars, the senior policy director at the National Homelessness Law Center.

Homelessness has increasingly overwhelmed state and local governments across the country. In California alone, more than 170,000 people are homeless, accounting for about one-third of the nation’s homeless population. More than 115,000 of those homeless Californians sleep on the streets, in cars or outdoors in places not intended for habitation, according to a federal tally of homelessness conducted last year.

Five years ago, the U.S. Court of Appeals for the Ninth Circuit ruled in case from Boise, Idaho, that it was unconstitutional for cities to clear homeless camps and criminally charge campers unless they could offer adequate housing. In the nine Western states covered by the circuit, that ruling has since prompted billions of dollars of public spending on homelessness.

Even so, very few cities in the West have enough shelter beds to serve everyone who is homeless in their jurisdictions, and that gap has made officials wary of enforcing local laws that prohibit individuals from setting up tents anywhere in public. All told, more than 50 governments and organizations asked the high court this month to overturn the Ninth Circuit’s recent decisions.

Gov. Gavin Newsom of California wrote in his brief that lower court interpretations were making it difficult for cities and states to address the “humanitarian crisis” of homelessness.Credit…Jim Wilson/The New York Times

The recent filings stem from a case that focuses on whether the small city of Grants Pass, Ore., can write citations when people camp in public spaces such as sidewalks, playgrounds and parks. Unlike Boise, Grants Pass had issued civil citations rather than pursue criminal charges until the Ninth Circuit determined that municipal tickets were also forbidden, absent sufficient shelter beds.

Gov. Gavin Newsom of California said in his brief that he initially supported the Boise decision, but that it had been so broadened and “distorted” that it now was enabling a “humanitarian crisis,” a view that echoed recent public statements.

“It’s just gone too far,” Mr. Newsom said in a Sacramento forum held by Politico this month, in which he vowed to seek clarity from the Supreme Court and recognized that he was asking for help from the same conservative jurists whom he had sharply rebuked for decisions on abortion and gun regulations.

Tents in downtown Portland, Ore., in 2021.Credit…Amanda Lucier for The New York Times

“People’s lives are at risk,” he said. “It’s unacceptable, what’s happening on streets and sidewalks.”

Homeless encampments grew dramatically in some West Coast cities during the pandemic, which the public initially seemed to tolerate as another consequence of life being upended. As much of society has returned to normal, however, patience has worn thin and voters regularly have named homelessness as one of their top concerns.

More than 40 percent of the nation’s homeless population now reside in the nine Western states within the Ninth Circuit, according to federal statistics. Besides Governor Newsom, some of the most liberal jurisdictions in the circuit, including San Francisco, Los Angeles and Honolulu, have joined with some of the most conservative in calling for Supreme Court intervention, a rarity in an age of extreme political polarization.

“The more the merrier,” said Timothy Sandefur, vice president for legal affairs at the Goldwater Institute, a conservative think tank in Arizona, who expressed amusement at the situation. “When somebody comes to see the light, you don’t berate them for spending all this time in the darkness — you praise them for seeing the truth.”

Some of the most notable Democrats in the nation now find themselves fighting against liberal groups that have been their allies on other matters.

Mr. Tars, of the National Homelessness Law Center, said that Mr. Newsom and other progressive leaders who had asked the Supreme Court to intervene “should be ashamed” for furthering a false conservative narrative about the crisis.

“They’re essentially aligning themselves with former President Donald Trump and others on the right who want to criminalize homelessness,” he said. “Communities are free to address homelessness through any of the many evidence-based approaches that can solve and end it. The only thing they can’t do is arrest or cite homeless people without bothering to give them any alternative.”

City and state officials said they had invested billions of dollars in social services and shelters, with the City of Los Angeles alone spending more than $1.3 billion in the current fiscal year on homelessness programs.

But many homeless people refuse help, the cities said — the Portland brief reported that about 75 percent of some 3,400 offers of shelter were turned down from last May to this July — and the courts over the past five years have seriously hobbled their ability to force recalcitrant people out of tent camps and into supportive housing.

Mr. Tars and other advocates for homeless people said governments routinely overstated the amount of indoor space they had to offer, the extent of their outreach and the number of people who refused to accept shelter.

Lawyers in the Grants Pass case expect the Supreme Court to determine by January whether it will review the case.

“I don’t see how they can possibly ignore this problem,” Mr. Sandefur said. “It’s just too big.”

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