By: Saatvik Amravathi
Volume IX – Issue II – Spring 2024
I. Introduction
It is unusual to find the Governor of California and the Mayor of San Francisco agreeing with their counterparts in conservative bastions like Arizona and Idaho. However, the issue of homelessness has created a rare and confusing bipartisan alliance. [1] While it is understandable that local governments would desire more power and lee-way when it comes to enforcement, it is strange that local electorates have bought into this concern, not only rallying around ballot measures and cases that seek to expand “police powers” but also voting in critical reversals of progressive policing, encampment, and drug laws. In response, news outlets such as the Seattle Times and San Francisco Chronicle ran their own versions of a “Progressivism is dead” headline, characterizing changing headwinds as voters rejecting progressivism writ large. [2,3] However, the story is more complex and should be understood through a combined legal and political lens. Changing headwinds are a result of an age-old conflict between the idealism of courts and the constraints of cities, the push for civil liberties and the need for crisis management, and the reliance on perception versus data in informing public policy.
West Coast mayors are in trouble. From small towns like Grants Pass, Oregon, to major cities like Portland and San Francisco, mayors are desperately scrambling to solve the dual crisis of homelessness and addiction playing out on city streets. According to point-and-time counts of the nation’s homeless population aggregated in 2022, there are 582,000 unhoused individuals, with around 40% residing within the nine states making up the 9th circuit. [4] Homelessness can take many forms, with the most visible and salient being “unsheltered” homelessness, which can range from occupying abandoned buildings to sleeping on sidewalks. About 40% of the homeless population is unsheltered, exposing them to the dangers of the streets and the elements. In San Francisco, for example, 72% of unsheltered homeless people faced sexual violence while 60% of them face chronic disease. [5] Homelessness is more than a visible representation of government failure on our city streets, having profoundly tragic impacts on the people most affected by the crisis: unhoused people.
While homelessness, if ever defined, is on a local level, the Department of Housing and Urban Development (HUD) divides homelessness into two categories, with the most severe being “chronic homelessness.” To be classified as chronically homeless, according to HUD, an individual must be living in a place unsuitable for habitation for at least 12 months or four separate occasions in the last three years that combine to 12 months. [6] Local jurisdictions use HUD’s standard to inform outreach efforts and prioritize the distribution of grant money. On the West Coast, chronic homelessness makes up a bulk of the homelessness crisis, such as in San Francisco, where 36% of the city’s unhoused population met this standard, with the median period of homelessness being 22 months. [7] Even though distinguishing the type and severity of homelessness is standard in statute and public policy debates, courts look at the issue differently – taking a civil liberties approach. Courts instead take a binary approach to homelessness, distinguishing individual cases as either “involuntary” or “voluntary” homelessness. [8] Unlike the public policy approach with a well-defined standard, this approach is both murky and controversial. In Martin v. Boise, the court makes a feeble attempt at defining involuntary homelessness, writing: “a person is not involuntarily homeless if they have declined a specific offer of available shelter or otherwise have access to such shelter or the means to obtain it.” [9]
Currently, the Supreme Court is hearing oral arguments for Grants Pass v. Johnson, marking a significant foray into the debate around homelessness and anti-camping ordinances. This pending decision comes at a time when cities are largely citing Martin v. Boise – a canonical case governing homelessness law and the case that Grants Pass v. Johnson challenges – as the root of their inability to address the homelessness and addiction crises. Cities and counties, mainly on the West Coast, share a belief that the court is hamstringing their police powers, limiting the enforcement actions they feel are vital to solving the homelessness crisis. However, this paper disagrees, arguing that the limits placed by Martin are both appropriate in substance and in following the role that courts have in public policy issues. Furthermore, this paper takes issue with cities’ contentions for stricter guidance and more lee-way, both non-issues and potentially detrimental when it comes to solving the homelessness crisis.
II. Relevant Cases
i. Robinson v. California
Courts have usually read two components into the 8th amendment: a categorical component and a proportional component. Categorical cases reject a certain type of punishment for being intrinsically cruel and unusual, while proportional reasoning has been applied by courts to reject punishment mechanisms for not “fitting the crime.” [10] However, Robinson v. California created a new genre of 8th Amendment claims which argued that punishing an individual solely for their status or condition is a violation of the 8th Amendment's prohibition against cruel and unusual punishment. This prohibition on status-based punishment has been subjected to three interpretations: (1) that punishments of status and not acts are unconstitutional, (2) punishment of involuntary conditions is unconstitutional, and (3) punishing someone for an illness is unconstitutional. [11]
Robinson was pulled over and charged with drug use based on a police officer’s observation that he had scab wounds associated with illegal drug use. While a trial court deemed him guilty and a California Superior Court upheld the decision to charge Robinson, the Supreme Court reversed the decision, reasoning that one could not be punished for a “status” that they held involuntarily. The majority opinion painted Robinson as having a “chronic illness,” one that punishing him for would constitute cruel and unusual. [12] This reasoning represents a substantial deviation from traditional 8th Amendment litigation, creating a novel distinction between status and action, with only the latter being punishable. This distinction becomes applicable in both Grants Pass v. Johnson and Martin v. Boise where plaintiffs successfully argue that involuntary homelessness is a condition, making punishment unacceptable.
i. Martin v. Boise
Martin v. Boise was the first substantial foray federal courts made on the issue of anti-camping and homelessness ordinances. Martin centered around a group of homeless individuals challenging Boise’s anti-camping statute, which prohibited lying down on public property, punishable by both civil and criminal punishments. The lead plaintiff in the case, Robert Martin, had a home in Idaho but frequently resorted to public camping when visiting family in Boise. [13] It was during one of these instances that he was arrested and cited for resisting being moved to a shelter. Another plaintiff, Pamela Hawkes, was cited over 11 times by Boise Police for camping on public property. [14] Together, a dozen unhoused plaintiffs challenged Boise’s anti-camping argument, making a novel application of the 8th Amendment. They argued that threatening unhoused residents with criminal prosecution when the city had no available shelter space was a violation of their 8th Amendment rights. More specifically, the plaintiffs successfully contended that the city by punishing them under a circumstance where they had no other provided option was a punishment of status, a violation of the 8th amendment. [15] Even though the City of Boise attempted to argue that it was punishing the unhoused individuals for the act of camping, the court rejected such arguments by framing Boise’s ordinances as punishing residents for their status of being unable to afford shelter and seeking the vital need of sleep through the only way possible. [16] The lasting impact of Martin was the test outlined by the court which deemed that when the number of available shelter beds was lower than the number of homeless residents, cities could not punish residents for using public spaces for camping.
ii. Grants Pass v. Johnson
Initially, local governments had a muted reaction to Martin since the ruling kept many of their powers intact, placing reasonable but amorphous constitutional limits. [17] However, when the Supreme Court denied certiorari, local governments began to change their tune, dramatizing the decision as a mistake by the high court. In recent years, a strong test case Grants Pass v. Johnson emerged, one that local governments hoped would allow the Supreme Court to make a ruling that they hypothesized would be more favorable and bind to all states, not just the 9th Circuit.
Gloria Johnson was a homeless resident of Grants Pass, Oregon - a small, isolated town with a tiny homeless population and no formal shelter. The only shelter available to Johnson was a Christian-affiliated shelter that mandated work and worship in exchange for shelter. The 9th circuit in Inouye v. Kemna ruled that forcing an individual—in this case, Johnson—to enroll in a religiously affiliated program for services is a violation of the 1st amendment’s Establishment Clause. [18] In effect, it is clear that Johnson fell right into the definition of involuntary homelessness set by the Court in Martin since she had no possible alternative than to sleep in a public space. Even though it lacked a shelter, Grants Pass had an anti-camping ordinance that established a $235 fine. [19] In debating this ordinance, city councilors made it clear that the goal of the ordinance was to “[drive] repeat offenders out of town and leave them there.” [20] Less than six weeks after the decision in Martin, Johnson successfully sued Grants Pass, seeking an injunction against the town’s homelessness ordinance.
In upholding the Superior Court’s decision to grant an injunction, the 9th district ruled that the plaintiffs were punished for an involuntary status and that the punishment, even though civil, should be viewed as comparable to criminal punishments deemed unconstitutional in Martin. [21] The city made the argument that the trial court improperly concluded that Johnson’s homelessness was an involuntary status. The city argued under Rule 23 of the Federal Rules of Civil Procedure that the court must take a more individualized approach in assigning an individual as “involuntary homeless,” considering more factors than just shelter availability. However, the court rejected this argument, opting to extend deference to homeless individuals in determining if someone was involuntarily homeless. The court went further, upholding the numerosity, commonality, and typicality standard applied by the trial court. It argued that considering the surrounding environment is critical in evaluating a status claim, especially involuntary status which is characterized by the absence of individual action. [22] The court addressed the second contention that criminal and civil punishments should be treated differently by invoking Manning v. Cadwell, a 4th Circuit decision that lays out that civil punishments that “set up” criminal punishments should be treated as what the court refers to as criminal punishments with a “few extra steps.” [23]
Even though Grants Pass was a mundane application of Martin, this time, the public response was significantly louder, with leaders in government, public policy, and law enforcement collectively and oddly blaming the court for inhibiting their response to the homelessness crisis. The lone dissent provides an insight into the reasoning used by opponents. The dissent paints Grants Pass as affirming a “right to camp,” stretching the scope of the 8th Amendment to protect anyone whose actions are a result of external environments. [24] The dissent hammers the majority for loosely defining “involuntary” and shouldering the burden of proof on local jurisdictions which it contends puts an unrealistic task for local jurisdictions merely seeking to enforce local laws. [25] Opponents of all political affiliations across the West Coast grasped on these assertions, asking the Supreme Court to grant certiorari, something it agreed to. This decision put the Supreme Court front and center in the perceived debate between civil liberties and jurisdictional enforcement power.
III. In Defense of Martin v. Boise
i. Reasonably Protecting the Status of Involuntariness
In the countless Amicus briefs submitted to the court as part of Grants Pass v. Johnson, opponents of Martin levy two different arguments against the involuntariness standard applied by the court. The more extreme argument made by opponents of Martin is that the 8th Amendment does not prohibit punishment based on status. Proponents of this argument take issue with the foundations of Martin: Robinson v. California and Powell v. Texas, which they claim are deviations from traditional 8th Amendment interpretation. [26] However, not all opponents of Martin challenge the doctrine of applying the 8th Amendment to status-based punishment. Some opponents merely take issue with the process the court in Martin but more expansively in Grants Pass used to establish class certification. [27]
Those who deride prior courts for holding status-based punishments as unconstitutional are both deeply misguided and advocate for a dangerous and reckless expansion of police power. Opponents who espouse this theory have an unsubstantiated reverence to the long-held binary of 8th amendment claims, falsely suggesting that both Robinson v. California and Powell v. Texas are poorly made judicial decisions. However, the majority in both decisions was cautious in making this expansion, especially in Powell, where the court made a clear distinction between status and status-motivated actions, the latter being punishable. [28] In Powell, the majority makes a poignant case against punishing status, claiming that such use of the criminal justice system would place affected people in a bind between their status and the weight of the law. [29] Opponents of deeming status-based punishments unconstitutional also rest their claim on the textual basis of the 8th Amendment, arguing the text of the amendment is only relevant to the type of punishment. However, this is deeply inaccurate. It is no secret that the founders sought the 8th Amendment as a protection against government-sponsored humiliation, making punishing status clearly an 8th Amendment violation. [30] While it is unlikely the court will buy this argument and overturn substantial precedent, these arguments highlight not only the clear presence of protections against status-based punishment in the Constitution but also the vitality of Martin and Grants Pass in protecting individuals from being punished for their status of facing addiction, a disability, and much more.
While overturning the status-based protection provided by Martin would be a devastating and drastic misstep, a more realistic and reasonable critique of Martin centers around how it constructs status. The court in Martin constructs status by employing the legal procedure of class certification. To determine if someone is involuntarily homeless - the legal threshold that the court determined protects individuals from punishment, the court created an absurdly simple tool, coming to a conclusion by measuring if “there is a greater number of homeless individuals in [a jurisdiction] than beds available [in shelters].” [31] The 9th Circuit doubled down on this test in Grants Pass, rejecting the defendant’s argument that jurisdictions should be able to make individualized jurisdictions about whether a particular unhoused resident is homeless for voluntary or involuntary reasons. [32] Beyond the questionable need to identify the “voluntariness” of an individual’s homelessness, the court is overall correct about generally deferring to individuals rather than allowing jurisdiction to selectively choose evidence that portrays unhoused people as choosing homelessness. While this general deference makes Martin a vital protection for unhoused people, the test employed in Martin has serious shortcomings. The test is a hasty attempt by the court to create an objective standard. Instead, the court should maintain its overall emphasis on deferring to homeless individuals about their conditions but create a multi-prong test to achieve its goal of determining if homelessness is a “natural” result of a certain municipal environment.
ii. Limited yet Effective Judicialization
Both the pitfalls and protections of Martin reveal the vital role it plays in maintaining the limited role the judiciary has in homelessness policy. Martin is important since it limits the judiciary’s involvement in homelessness policy to protecting the civil liberties of unhoused residents. Only worse than completely pulling out of the issue would be judicializing the issue, which would hurt jurisdictions by limiting their flexibility and would hurt homeless individuals through the creation of new hurdles they have to jump through just to access basic necessities of life. Judicialization of the issue would vacate jurisdictional flexibility, a reality that is already apparent due to the court’s overly simplistic approach to determining voluntary homelessness. The court in Grants Pass extended reliance on the court-suggested test in Martin which simply calculates the amount of shelter beds and homeless residents to inform if homelessness is a voluntary or involuntary choice. [33] Besides the ludicrous assumption that a significant chunk of homelessness is voluntary, the construction of the test is largely a product of court rulings pertaining to small jurisdictions such as Grants Pass and Boise which have far fewer homeless individuals than San Francisco, Portland, and Los Angeles. This top-down approach to deciding if a city is doing enough to make homelessness not a voluntary choice shows the limits of courts in public policy issues. The court, even under good faith, cannot make determinations over a jurisdiction’s response since it is limited in skill set, time, and facts available. These environmental differences were a reality that the court in Martin generally understood, providing substantial leeway for cities to enforce laws prohibiting edge-cases of public camping, such as restrictions on sleeping near power facilities. [34]
Even though the test reflects one of the shortcomings of Martin, the overall decision in Martin limits judicial interference in protecting the civil liberties of unhoused individuals. The fundamental premise of Martin is that jurisdictions cannot “sweep” homeless individuals through fines or criminal punishment when they provide individuals with no place to go. This decision fundamentally altered the responsibility of local governments, pressuring them to provide the same treatment and carry out the same responsibilities towards homeless individuals as they do to housed residents. The blanket protection that Martin provided to people experiencing homelessness both inside the judicial system and outside when it came to interactions with law enforcement helped reduce the number of interactions that homeless individuals had with the criminal justice system, easing an already traumatic experience. [35] Furthermore, the tools that Martin provided have proven vital. For example, the initial injunction secured in the Grants Pass case was made possible under the framework of Martin.
IV. Conclusion: Grants Pass is not the Silver Bullet to Ending Homelessness
Circuit court decisions relating to the 8th Amendment usually do not get much attention. However, the growing salience of homelessness on the West Coast has made Martin v. Boise a frequently mentioned fact. In fact, San Francisco Mayor London Breed routinely blamed the injunction granted based on Martin in the Coalition on Homelessness v. City and County of San Francisco as the reason her office could not do anything about the issue. Despite being the most prolific use of Martin as a rationalization for the issue of homelessness, it reveals a common truth shared by municipal leaders across the West Coast: only the Supreme Court can give the tools to solve this crisis by erasing the limits set by Martin. While the reliance on an unpredictable court itself is troubling, what is more troubling is the acceptance of the myth that rolling back Martin will unlock the key to solving homelessness.
In many ways, Martin has been used as a scapegoat, tossed out by leaders when they lack other resources, such as funding or personnel to do homelessness outreach. The court in Martin was exceptionally careful in carving out a range of exceptions under which cities could move people with the threat of punishment. However, cities seem increasingly comfortable painting dangerous encampment environments as a result of the court's decision – a fact that even the justices in Grants Pass point out. [36] Furthermore, cities can completely sidestep Martin by actually solving the homelessness crisis and building a range of new shelters and single-room occupancy units (SROs). New York City, for example, has taken this approach due to a court order in the 1970s guaranteeing a right to shelter for all of its homeless residents. Martin does not inhibit local response to homelessness in fact one can even suggest that Martin applies “gentle pressure” on jurisdictions to build the facilities needed to solve the crisis. Faced with the ruling, Boise opened up new homeless shelters and was able to drastically reduce the number of homeless residents, all while facing a surge in the housing market. [37] The solution to solve the homelessness crisis is in the hands of the cities, not the courts, even though opponents of Martin believe otherwise.
Endnotes
[1] Rachel M. Cohen, Cities Are Asking the Supreme Court for More Power to Clear Homeless Encampments, Vox, October 10, 2023, https://www.vox.com/2023/10/10/23905951/homeless-tent-encampments-grants-pass-martin-boise-unsheltered-housing.
[2] Danny Westneat, West Coast Cities Start to Confront the Limits of the Liberal Dream, The Seattle Times, October 1, 2023, https://www.seattletimes.com/seattle-news/west-coast-cities-start-to-confront-the-limits-of-the-liberal-dream/.
[3] Ben Kelly, “San Francisco Declared No Longer Progressive,” Newsweek, March 8, 2024, https://www.newsweek.com/san-francisco-progressive-votes-chronicle-1876785.
[4] Department of Housing and Urban Development, AHAR reports - HUD Exchange, 2022, https://www.hudexchange.info/homelessness-assistance/ahar/.
[5] Margot Kushel and Tiana Moore, Toward a New Understanding, UCSF Benioff Homelessness and Housing Initiative. 5,6. (June 2023), https://homelessness.ucsf.edu/sites/default/files/2023-06/CASPEH_Report_62023.pdf.
[6] Definition of Chronic Homelessness, HUD Exchange. https://www.hudexchange.info/homelessness-assistance/coc-esg-virtual-binders/coc-esg-homeless-eligibility/definition-of-chronic-homelessness/
[7] Margot Kushel and Tiana Moore, Toward a New Understanding, UCSF Benioff Homelessness and Housing Initiative. 5. (June 2023), https://homelessness.ucsf.edu/sites/default/files/2023-06/CASPEH_Report_62023.pdf
[8] Sara Libby, Do those who reject shelter choose homelessness? In S.F. and beyond, the answer means everything, San Francisco Chronicle, October 10, 2023. https://www.sfchronicle.com/politics/article/homeless-voluntary-reject-shelter-18552789.php
[9] Coal. on Homelessness v. San Francisco, No. 22-15768, Dkt. No. 88 (9th Cir. Sept. 23, 2023) (order denying motion to modify preliminary injunction).
[10] EIGHTH AMENDMENT CRUEL AND UNUSUAL PUNISHMENT, Government Publishing Office. 5. https://www.govinfo.gov/content/pkg/GPO-CONAN-2022/pdf/GPO-CONAN-2022-22.pdf.
[11] Elyn R. Saks, The Status of Status Of enses: Helping Reverse the Criminalization of Mental Illness. 23 Southern California Review of Law & Social Justice 367. 372. (Spring 2014).
[12] Martin v. City of Boise, 920 F.3d 584, 615-16 (9th Cir. 2019)
[13] Martin v. City of Boise, 920 F.3d 584, 606 (9th Cir. 2019)
[14] Maria L. La Ganga, Boise, Idaho is why L.A. can't clear homeless encampments, Los Angeles Time, October 15, 2019. https://www.latimes.com/california/story/2019-10-15/homeless-boise-martin-supreme-court
[15] Martin v. City of Boise, 920 F.3d 584, 606 (9th Cir. 2019)
[16] Ibid.
[17] Johnson v Grants Pass Webinar 2 15 2024 [Audio], National Homelessness Law Center, https://www.youtube.com/watch?v=-u4xQphv7B8/. (last updated February 16, 2024).
[18] Inouye v. Kemna, 504 F.3d 705, 712-13 (9th Cir. 2007)
[19] Boise City Code § 9-10-02
[20] City of Grants Pass, City Council Community Roundtable (Mar. 28, 2013), https://www.grantspassoregon.gov/AgendaCenter/ViewFile/Minutes/181?MOBILE=ON
[21] Martin v. City of Boise, 920 F.3d 584, 604 (9th Cir. 2019)
[22] Johnson v. City of Grants Pass, 50 F.4th 787, 792 (9th Cir. 2022)
[23] Ibid.
[24] Johnson v. City of Grants Pass, 50 F.4th 787, 792 (9th Cir. 2022)
[25] Ibid.
[26] Brief for Prof. Michael J.Z. Mannheimer as Amicus Curiae, p. 4,5, Grants Pass v. Johnson, No. 23-175 (2022)
[27] Brief for Governor Gavin Newsom as Amicus Curiae, p. 4, Grants Pass v. Johnson, No. 23-175 (2022)
[28] Powell v. Texas, 392 U.S. 514, 542, 88 S. Ct. 2145, 2159 (1968)
[29] Ibid.
[30] Bryan A. Stevenson & John F. Stinneford, The Eighth Amendment, National Constitutional Center. https://constitutioncenter.org/the-constitution/amendments/amendment-viii/clauses/103#:~:text=The%20Eighth%20Amendment%20to%20the,as%20the%20price%20for%20obtaining
[31] Martin v. City of Boise, 920 F.3d 584, 617 (9th Cir. 2019)
[32] Johnson v. City of Grants Pass, 50 F.4th 787, 792 (9th Cir. 2022)
[33] Ibid.
[34] Johnson v Grants Pass Webinar 2 15 2024 [Audio], National Homelessness Law Center, https://www.youtube.com/watch?v=-u4xQphv7B8/. (last updated February 16, 2024).
[35] Ibid.
[36] Sara Libby, Do those who reject shelter choose homelessness? In S.F. and beyond, the answer means everything, San Francisco Chronicle, October 10, 2023.
[37] Johnson v Grants Pass Webinar 2 15 2024 [Audio], National Homelessness Law Center, https://www.youtube.com/watch?v=-u4xQphv7B8/. (last updated February 16, 2024).