The U.S. Supreme Court today took the first step toward a rational approach to the problem of homelessness by overturning a Ninth Circuit ruling that prohibited cities from enforcing their laws against camping in public parks and on sidewalks.
That decision, called Johnson v. Grants Pass, declared that it violates the Eighth Amendment’s “cruel and unusual punishment” clause to arrest people for sleeping on public property, unless the government had sufficient space in its own homeless shelters to house them. This across-the-board numerical formula effectively barred—or was at least interpreted to bar—cities from taking steps to help the homeless, and many cities, including Phoenix, saw the decision as a convenient excuse to refuse to do their jobs. The result was a massive spike in homelessness, particularly in the western states subject to the Ninth Circuit’s authority.
The decision made no sense, however—and the Supreme Court overturned it in a 6-3 ruling that rightly holds that nothing in the Constitution creates a right to live in public parks or on sidewalks, or ties the hands of local officials to deal with the problems of homelessness in local communities. The Ninth Circuit’s “experiment,” writes Justice Neil Gorsuch, “exemplifies much of what can go wrong when courts try to resolve matters like those unmoored from any secure guidance in the Constitution…. How are city officials and law enforcement officers to know what it means to be ‘involuntarily’ homeless, or whether any particular person meets that standard? Posing the questions may be easy; answering them is not. Is it enough that a homeless person has turned down an offer of shelter? Or does it matter why? Cities routinely confront individuals who decline offers of shelter for any number of reasons, ranging from safety concerns to individual preferences. How are cities and their law enforcement officers on the ground to know which of these reasons are sufficiently weighty to qualify a person as ‘involuntarily’ homeless?”
The unanswerability of such questions shows why even city officials acting in good faith found the Ninth Circuit’s one-size-fits-all rule unworkable—and why city officials not acting in good faith found that rule a handy rationale for simply leaving the homeless on the streets, as Phoenix officials did when they created the infamous “Zone.”
Today’s decision also makes clear why local communities must take responsibility for enforcing the law to protect taxpayers and property owners, rather than engage in massive, ideologically-driven dereliction of duty. Arizona voters will have a chance to do just that this fall, when they consider Proposition 312, an initiative that provides that when city officials purposely create homeless encampments and lawless zones, as Phoenix leaders did in recent years, citizens who take steps to protect themselves—by installing security bars or cameras or hiring a security guard—will at least be entitled to deduct the costs of doing so from their taxes, and that cities that refuse to shoulder their responsibilities have their funding reduced proportionately. If cities won’t do their jobs—as Phoenix refused to do—taxpayers should at least get their money back.
The reality is that there are as many causes of homelessness as there are homeless people. Overturning the Ninth Circuit’s absurd and unworkable Grants Pass rule won’t cure the homelessness problem, by any means. But it does open the door to working toward cures—cures that can only work on a case-by-case basis, addressing each situation in light of that individual’s needs and capacities, rather than regarding them as incapable of making decisions or being held responsible, as the Ninth Circuit’s ruling did.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.
