'There are no guardrails’: Supreme Court empowers cities to take tougher steps to police homelessness

SAN FRANCISCO — The Supreme Court has granted mayors broad powers to combat the homelessness crisis, including by jailing people for sleeping outside. Now, leaders along the West Coast must decide how far they’re willing to go.

The Grants Pass v. Johnson ruling last month will have major ramifications everywhere from Northeast cities struggling with a deluge of migrants to Sun Belt boom towns facing huge shortages of affordable housing. But the effect is most dramatic along the West Coast, where lower court rulings had severely limited city officials’ authority to clear encampments even as the region became the epicenter of a national homelessness crisis.

San Francisco Mayor London Breed captured the frustration among many Democratic mayors when she praised the conservative-majority Supreme Court’s ruling.

“Those who refuse our help or those who already have shelter will not be allowed to camp on our streets,” Breed said.

For years, there was a shared frustration among West Coast mayors as they tried to clear camps without running afoul of the courts: Damned if you do, damned if you don’t.

The mayors griped that a patchwork of court rulings had created a legal minefield if they tried to remove homeless people from sidewalks, parks and freeway underpasses. Meanwhile, they faced voter backlash over the health and safety risks posed by growing encampments.

But the high court ruling effectively overturned those decisions, allowing cities to remove tents even when there aren’t enough shelter beds. The Supreme Court also ruled that arresting or citing people for camping in public spaces did not constitute "cruel and unusual punishment" prohibited by the Eighth Amendment.

Still, mayors face resistance from homelessness advocates and others who warn that more draconian approaches will exacerbate suffering and simply shuffle homeless people between cities.

“We are concerned that there will likely be this cruelty-arms race to the bottom, where jurisdictions try to outdo each other in being more punitive,” said John Do, a senior attorney with the ACLU of Northern California, which has advocated for homeless people in cases across the West. “There are no guardrails right now.”

POLITICO took a look at how six cities in the West are responding to the ruling and their expanded powers.

Sweeps unleashed

Mayor London Breed called the high court’s ruling in Grants Pass a godsend after the city spent years drowning in legal limbo. Breed faces a tough reelection fight in November, against four major challengers who have all accused her of failing to stop the proliferation of encampments.

Breed hasn’t decided whether to expand arrests and citations, though her administration is considering its options. Breed said the ruling “recognizes that cities must have more flexibility” to compel people to seek help, adding “This is about people who are refusing” shelter.

Prior to the Grants Pass decision, the city had faced an injunction on clearing encampments, even as its homelessness crisis drew national ridicule as conservative politicians and media outlets amplified images of grim street conditions in the Tenderloin neighborhood.

A judicial magistrate issued an injunction in late 2022 that barred the city from removing tents using anti-camping statutes unless it had enough shelter beds for every homeless person citywide. Much of the injunction is now defunct , though more technical aspects of the case are still being litigated.

“The lawsuit exacerbated our street conditions and put us in an impossible position,” said City Attorney David Chiu, a former state lawmaker, who fought the injunction. San Francisco estimates it would need close to $1.5 billion to create enough shelter beds for every person on the street — which Chiu called an impossible feat.

Chiu said the ruling provides relief in the sense that homeless people who refuse shelter can be removed. However, he doubts the city will prioritize arresting people for pitching tents on the sidewalk (though the ACLU and other advocacy groups allege the city is already citing homeless people on a regular basis).

“Our city's focus will be on providing services to unhoused people while keeping our streets healthy and safe, not on criminal prosecutions,” Chiu said.

Turning to police

Within two weeks of the Supreme Court’s ruling, the desert oasis of Palm Springs, California, passed one of the most aggressive anti-camping ordinances of any Democratic city.

The City Council voted 3-1 to give police the authority to arrest and jail homeless people for sleeping in public or building encampments — a move that leaders said was intended to deal with people who repeatedly refuse shelter.

Police Chief Andy Mills said the Grants Pass decision made it easier to craft the ordinance, though it had been in the works for months.

The policy generally allows police to make arrests only if enough shelter beds are available, and Palm Springs is about to double its bed capacity with an expanded shelter that is expected to open in August.

“There will be plenty of space for people to take if they want it. If all else fails, we will cite or arrest,” Mills said. “We can’t, as a society, continue to allow people to slowly kill themselves in a public place — and that’s exactly what’s happening.”

Councilmember Lisa Middleton, the city’s former mayor and a Democratic candidate for the state Senate, said the crisis has shown simply offering shelter isn’t enough to solve homelessness. The situation, she said, has forced leaders in both parties to leave their political comfort zones.

“The United States Supreme Court got it right on this one. Every court is entitled to get it right once,” Middleton quipped.

Resisting the ruling

No big-city mayor has been as outspoken in their criticism of the ruling as Karen Bass, who has likened it to the high court’s decision overturning the federal right to abortion.

At an event last week, Bass told the crowd that her first order of business is “resisting Grants Pass.” She said Los Angeles, which has one of the largest homeless populations in the country with more than 45,000 Angelenos lacking permanent shelter, must build additional shelter beds and interim housing projects as quickly as possible.

“People need to understand that our rights were also taken away with Grants Pass,” Bass told the crowd. “And so the right that people had to stay on the street until there was housing is gone.”

Even before the ruling, Bass warned that it could embolden people who want to criminalize homeless people.

Bass has refused to make aggressive police enforcement part of her response, even as LA’s infamous Skid Row grows. Her signature program , Inside Safe, focuses on moving people off of the streets into temporary housing such as motel rooms — a program she has sought to expand, despite its hefty price tag.

Los Angeles has a progressive City Council, so it’s unlikely Bass will face immediate pressure to crack down from within her own government. But she’s talked about the concern in the context of a possible second term for former President Donald Trump, as well as the worry that other cities and states could send their homeless residents to LA.

“We have to get ready to resist the potential wave of oppression,” she said.

New camping zones

A few days before the Supreme Court handed down its ruling, city leaders in Missoula, Montana, passed an ordinance that was designed to comply with the restrictions the court was about to overturn.

But Mayor Andrea Davis, a Democrat who also works as an affordable housing developer, said Missoula doesn’t plan to revisit its policy. That’s because local leaders feel like they found an unconventional approach that works.

The ordinance allows camping on city property, including parks, but only overnight, from 8 p.m. to 8 a.m. People must take their tents down and remove all belongings each morning.

It also creates buffer zones throughout most of the city to prohibit tents from popping up close to homes, schools or businesses. Missoula, a progressive college town in a deeply red state, receives relatively little state funding for homeless services, but it has enough park space to provide temporary camping sites.

“We more or less created a diffused camping opportunity,” Davis said in an interview. “We’re really trying to find a humane, balanced approach here.”

State law limits change

Almost nothing has changed in Portland due to the court’s ruling — but not because local leaders don’t want it to.

Mayor Ted Wheeler, a Democrat, has lamented that Grants Pas s will “have little or no impact” on Portland unless the state Legislature revises a 2021 law restricting its ability to remove camps. The city has one of the fastest growing homeless populations in the country, and conservative pundits have mocked the liberal city over its “dystopian” downtown center lined with empty office buildings and stores.

The 2021 Oregon law prevents cities from removing homeless camps unless they can prove their policies are “objectively reasonable” — a requirement shaped by a prior court ruling.

But what the state defines as reasonable restrictions on public camping is vague, creating a murky situation for cities. Wheeler’s office said he is lobbying state lawmakers to clarify the law in the wake of the Supreme Court ruling.

His office said in a statement that Portland is focused on dealing with camps that pose the most safety risks. Wheeler declined to discuss his plans in an interview.

Big shelter ambitions

San Diego Mayor Todd Gloria has cheered the Grants Pass ruling, saying it boosts the case for one of his top policy priorities: building a 1,000-person mega shelter.

Gloria, a Democrat and former state legislator, said the court eased the threat of litigation that made mayors nervous about clearing camps. He said the justices also made clear that cities have an obligation to deal with the health and safety risks posed by large encampments.

But, Gloria said, that expansive power to police homelessness comes with a moral obligation to provide beds, which he said illustrates the need for his proposal to build a massive shelter in a vacant warehouse near downtown — a plan that some neighbors and City Council members have fought for months.

“It would be a mistake for a city to suddenly feel as though they’re absolved of their obligation to provide shelter,” Gloria said in an interview. “You can’t just shuffle people around.”

He scoffed at cities pursuing ordinances that make it a crime to merely sleep outdoors, calling the approach inhumane. “Good luck to them when they get to the pearly gates,” Gloria said.