PHOENIX — A new U.S. Supreme Court ruling empowers states and cities to enact laws designed to keep the homeless from sleeping on the street.
In a split decision Friday, the justices concluded laws banning camping on public property do not violate the Eighth Amendment ban against “cruel and unusual punishment.” More to the point, the court said such laws do not make being homeless a crime.
All that overturns a decision by the 9th Circuit Court of Appeals that had blocked the city of Grants Pass, Oregon, from enforcing anti-camping laws in its community. That became precedent for all Western states, including Arizona.
What makes Friday’s ruling significant is some communities in Arizona had cited that 9th Circuit ruling as a reason they could not close down homeless encampments.
Now all that is gone, and it frees up state and local lawmakers to reconsider the issues.
In fact, Justice Neil Gorsuch, who wrote the majority 6-3 decision overturning the lower court ruling, actually invited such measures.
“A handful of federal judges cannot begin to match the collective wisdom the American people possess in deciding how to handle a pressing social question like homelessness,” he wrote. “The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this nation’s homelessness policy.”
“I’m definitely looking into it,” said Sen. Justine Wadsack.
The Tucson Republican sponsored legislation last year that would have required cities to tear down homeless encampments and charge those living there with criminal trespass. It was approved by the Republican-controlled Legislature on party-line votes, with Wadsack saying much of the opposition from Democrats was over that Eighth Amendment issue.
In vetoing the measure, Gov. Katie Hobbs did not cite the Grants Pass case. Instead, she said that people become “unsheltered’’ for a variety of reasons and “this legislation addresses no of those root causes, offers no pathways to assistance, and effectively criminalizes experiencing homelessness.”
Hobbs remains governor. But Wadsack told Capitol Media Services she will “try a different approach” to see if she can get some sort of measure enacted into law.
One factor that played a role in the 9th Circuit ruling was the question of whether it is wrong to make it a crime to sleep on the street when people have nowhere else to go. Wadsack said that’s not the case.
“There are shelters, there are beds,” she said. Wadsack said the issue is more political.
“The Tucson Police Department, at least in my area, has been instructed not to take people off the streets, whether they have SMI (serious mental illness) or just down on their luck,” she said. And Wadsack added they have been specifically told not to take people to a Gospel Rescue Mission “because of the — air quotes — Christian thing.”
“They have the best programs,” Wadsack said, and one that is funded entirely through donations.
“And all they ask is to give some time to reflect on a Christian value,” she said. “And the people that come out of there, they owe their lives to Gospel Rescue Mission.”
Wadsack, who has been at the forefront of legislation dealing with the homeless — and the issues she said they raise — said this isn’t a question of finding a balance between the rights of the neighborhood and the rights of the homeless.
“I think it’s one in the same,” she said.
“Everybody has a right to safety and be free from crime,” Wadsack said. “When you have a home and you walk out into your back alley to throw away your trash or to park your car, you shouldn’t have to step over tents and people’s human feces to get there.”
Still, she said she recognizes the other side.
“People who are in a situation that is dire and living on the street because they don’t have other options, they have a right to dignity and their humanity as well,” Wadsack said. “When there are options there, there’s nothing worse than government getting in the way.”
But it’s not just Wadsack who wants the greater flexibility that Friday’s ruling provides the state.
Senate President Warren Petersen and House Speaker Ben Toma spent $15,000 of taxpayer funds last year to file their own legal brief in the case, asking the justices to overturn the 9th Circuit ruling.
“Lawmakers must use a suite of state and local government policies, including camping ordinances, to adequately address the social and public health effects of homelessness,” wrote Beau Roysden, a former assistant state attorney general now in private practice. But he told the justices the ruling by the 9th Circuit Court of Appeals removes “a critical tool previously available to states, counties, and cities working to combat homelessness.”
What may be standing in the way of all that, at least at the state level, is the governor.
Not only did she reject Wadsack’s bill on creating the crime of trespass, she also killed legislation that would have made it illegal to erect or maintain any sort of housing structure on any public street, highway, alley, lane, parkway, sidewalk of other right of way. And the measure specifically was crafted by Sen. John Kavanagh, R-Fountain Hills, to include a tent, tarp, box or similar object.
“Rather than solving these issues in a meaningful way, this bill only makes them less visible,” the governor said.
And on Friday, Hobbs said nothing in the new decision will change any of that.
“Under my watch, we will not criminalize people sleeping on the street,” she told Capitol Media Services.
“It is unconscionable that we would do that when we don’t have enough resources to care for people who are being priced out of their homes because we have an affordable housing crisis,” the governor said. On top of that, she said, the state needs to provide services.
“A lot of people who are living on the street are dealing with serious mental illness, chronic substance abuse, so many other issues that prevent them from maintaining stable housing,” Hobbs said.
Sen. Priya Sundareshan said it won’t matter if GOP lawmakers see Friday’s ruling as a license to start proposing new laws criminalizing homelessness.
“That is our saving grace right now, having the governor as a backstop,’’ said the Tucson Democrat. And she blasted what the justices did.
“Simply making it a criminal activity to be on the street is not a solution to homelessness,” Sundareshan said. “I think it is kicking people when they are down.”
Even if Hobbs blocks some new laws, that won’t end the discussion about what can be done in Arizona.
A measure on the November ballot will allow voters to decide whether businesses or residents affected by homelessness should get a property tax break — a burden that would fall on everyone else in the community.
Proposition 312 would allow property owners to seek a refund of their city or county taxes if the community has a “policy, pattern or practice” of declining to enforce certain laws.
That is spelled out as everything from illegal camping, obstructing sidewalks, panhandling, public urination and public drinking. The affected property owners would have to document the expenses they incurred to offset those problems, though the total refund could not exceed taxes paid.
Petersen said it’s only fair to ensure businesses are not saddled with additional financial burdens because of the problem of homelessness.
Toma expressed similar sentiment during debate on his mirror version.
“This bill ... ensures that hardworking taxpayers will no longer be forced to bear the burden of the city’s refusal to do its duty to protect the public health and safety,” he said.
The measure is being pushed by the Goldwater Institute, which pushes for less government regulation.
Attorney Timothy Sandefur, said what the Supreme Court recognized is that “each case is different” and state and local governments need flexibility in dealing with the issue of homelessness.
The philosophy until now, he said, is that “people can’t possibly help it.”
“Well, some people can help it and some people can’t help it,” he told Capitol Media Services.
“Some people need treatment, some people need psychological care, drug care, whatever it might be,” Sandefur said. “And I think what today’s decision does is it allow for that to happen.”
But Pima County Attorney Laura Conover said the justices got it wrong — as do people who see living on the street as a voluntary activity. She said the justices are saying that “even with there’s no space available, we can just pretend that people are deliberately outside in 105-degree heat.”
That is in sync with what Justice Sonya Sotomayor wrote in the dissent for herself and two other justices.
“Sleep is a biological necessity, not a crime,” she wrote. “For some people, sleeping outside is their only option.”
What the law that the majority approved does, said Sotomayor, is punishes people for being homeless.
“That is unconscionable and unconstitutional,” she said.
Conover, in her prepared statement, said refusing to arrest homeless people does not give them a license to commit crimes. She said when laws are violated, her office will hold people accountable.
“But arresting people for sleeping is not the way,” she said, And Conover said she doesn’t foresee local authority using “precious resources in an attempt to arrest our way out of chronic illness.”
“While the Supreme Court may tolerate cruelty, our community does not,” she said.
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