Column: The Supreme Court could soon decide how the American West deals with homelessness

Boise, Idaho – a bit shy of a quarter-million people – would rank as only the third most populous city in Los Angeles County. But it’s big enough to take up a federal court case that could radically change how Los Angeles and virtually every other city and county in nine Western states – including Hawaii and Alaska – deal with the homeless people in their midst.

A year ago, the 9th U.S. Circuit Court of Appeals told Boise that it’s unconstitutional to stop the homeless from sleeping in public spaces if there’s not enough shelter available for them. Now Boise wants the U.S. Supreme Court to have a look at that decision. Two constitutional lawyers with the Los Angeles office of the influential law firm Gibson, Dunn & Crutcher -- it’s a big foot in a white shoe – are working to persuade the top court to take on the Boise ruling. Theane Evangelis is partnering with renowned lawyer Theodore B. Olson on this, a case that, whether the Supreme Court takes it up or not this fall, already has a profound influence on the homeless in American cities, whether it’s the several hundred in Boise or the 36,000 in the city of Los Angeles.

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What do Boise, and its homeless problem, have in common with L.A.’s homeless problem?

There is a huge public health and safety crisis that we’re facing on our streets in all of our major cities. And it has reached emergency proportions. Boise is no different from the rest of the more than 1,600 municipalities in the 9th Circuit. It, too, is grappling with these issues and trying to figure out solutions as we all are here in Los Angeles as well.

What are the regulations, the rules that the 9th Circuit decision put in place that cities are operating under now?

The 9th Circuit’s decision effectively grants constitutional protection to encampments, to living in our streets and public places.

It holds that a jurisdiction cannot enforce ordinances limiting public camping until it has enough shelter, acceptable shelter, for every homeless person in the entire jurisdiction.

What that means is, until cities solve the entire problem, they’re unable to address the immediate consequences of growing encampments and what we’re seeing on our streets even piecemeal.

It really ties the hands of states and cities and counties as they’re trying to address these issues by taking ordinances that every city has in some form or another historically off the table and creating a constitutional bar to enforcement of those ordinances.

What are the constitutional issues here?

The 9th Circuit held that the 8th Amendment, which prohibits cruel and unusual punishment, prevents cities from enforcing these ordinances.

The Supreme Court’s decisions in this area go back to a pair of cases in the 1960s, where the Supreme Court held in one case -- and only ever in one case -- that the state of California couldn’t criminalize the status of being addicted to narcotics.

That case was the Robinson case in 1962, and that was understandably a status crime of simply being addicted. It was an unusual law and I don’t think we have many laws like that.

And the Supreme Court later, in another case called Powell vs. Texas in 1968, in a decision by Justice Thurgood Marshall, made very clear that states and governments can prohibit conduct. In that case, Texas had a law that made it a crime to be publicly drunk.... Because of the health and safety consequences that that [crime] posed, cities could regulate that and states could regulate conduct like that.

The Supreme Court set up a distinction between status and conduct.

And so now, the 9th Circuit’s decision really creates a new 8th Amendment violation for ordinances that limit public camping that’s never been adopted by a court before.

In fact, the California Supreme Court in 1995 held that under the 8th Amendment, those exact laws, public camping restrictions, were constitutional.

We have a split now between the 9th Circuit and the California Supreme Court. And other federal courts have also upheld those laws.

If, under that Robinson ruling, addiction is a status that is protected, why isn’t homelessness a status that’s also protected?

What we’re talking about here is conduct, and that conduct is public camping and the growth of encampments, which are distinct from homelessness.

And I think it’s very important that we not conflate those issues. We are seeing in dealing with the challenge of homelessness that people fall into homelessness for a variety of reasons.

Some are suffering from mental illness, others severe substance use issues, others have economic reasons. And there are still others who are living on the streets among all of those groups and preying upon them and taking advantage of growing encampments to harm and assault those who are most vulnerable, who are living on the streets.

So I think it’s very important for cities to have the tools to address all of those issues.

The 9th Circuit’s decision, by taking all of these laws off the table, really ties the hands of state and local governments as they’re trying to address the different aspects of this issue.

These laws are an important part of the big picture. There are certain places where we’re seeing a public health crisis, where medieval diseases like typhus and hepatitis A are spreading. There’s a rare form of tuberculosis found only on skid row in Los Angeles now, for example.

In San Diego there was a hepatitis A outbreak.

If there is an outbreak of disease like that in an area, and we’re seeing an increase in rodents and trash and needles and all sorts of very troubling consequences, cities need to be able to address that particular issue.

If the Supreme Court rules in your favor, and the 9th Circuit decision is overturned, what are the guarantees that cities aren’t going to revert to old tactics that in some cases have been regarded as draconian: sweeping through a homeless encampment -- and there go, for example, medicines or identification or personal records?

There are all sorts of constitutional protections that individuals enjoy and already are entitled to.

It has always been the case that if an individual is cited for a misdemeanor or other criminal citation, there are other defenses available. There’s always the defense of impossibility, for example, under California law. There are other protections, due process protections. There are a host of other individualized protections which might apply on a particular case-by-case basis.

What is not the solution is taking these ordinances off the table completely through a categorical bar under the 8th Amendment in the way that the 9th Circuit has done here, that removes all consideration of those precise and only individual circumstances that you just mentioned.

There is no one-size-fits-all solution to the issue of public camping. The problem with the 9th Circuit’s decision is that it takes these ordinances off the table. It’s a categorical bar to these common-sense ordinances.

I think we are seeing a growing public consensus in favor of solving this problem. We need to be compassionate, and we need to put all of our attention and our expertise to solving this issue.

In Los Angeles, for example, we’ve raised billions of dollars through Proposition HHH and Measure H through tax increases over the next 10 years. It’s a huge commitment of resources, but yet in the last year, we’ve seen our homeless numbers increase by more than 12% in Los Angeles, which coincides with the 9th Circuit decision in the Boise case.

We need to be providing shelter and services, and we need to help people transition off the streets into those shelters. Because in the last year, even though we’ve seen these measures passed and we’ve put so much attention and public funds to this issue, over 900 people on the streets of Los Angeles alone died. Right now it is at an emergency level when we look at the public health and safety threat that these growing encampments pose.

As bad as conditions are, why are they not joining the city of Boise in this – the homeless people themselves, who sound like the ones you describe, who are the ones whose lives and health are at risk here?

Actually there are shelters in Boise that are working with the city. They work very closely with law enforcement, and police are a resource to them to help people get shelter that’s available, to identify people who need services.

We need a partnership -- that’s exactly what we’re hearing from people who are on the front lines. They need more help from cities, they need help from public officials and from law enforcement to be part of the solution.

And right now, cities are afraid to do anything. They’re taking a hands-off approach and they’re suspending all ordinances that limit public camping because they’re afraid of lawsuits and of huge potential exposure.

I think we need to get past that and we really need to come together and we need to debate these issues in the democratic process.

But simply taking a hands-off approach and creating a constitutional right to live on the street is not going to improve things at all; in fact, we’re seeing that it’s making things much worse.

There was a wonderful column by the mayor of Sacramento in the L.A. Times talking about this issue and how the constitutional right to live on the streets is not the answer.

Are you concerned that this could open the door to effectively or de facto re-criminalizing homelessness?

I don’t think so at all. I don’t think anyone wants to simply arrest people who are on the street but rather I think we need to have ordinances that say you can’t camp and block public rights-of-way.

We need some way to limit the growing encampments. It’s not surprising that we’re seeing a huge environmental impact from these growing encampments, which involve growing debris and human excrement and are affecting water quality and other environmental impacts.

There needs to be some limits and we need to protect everyone’s safety and the health of everyone, especially those who are living in encampments. And we need to have tools available as we’re building shelters as we’re coming up with solutions to address this crisis.

You worked for a time with the Central City Assn., which is merchants, nonprofits and business interests downtown. The Central City Assn. is an organization that’s been ardent about cleaning up skid row. How did it prepare you for this case?

My work with the Central City Assn. has really been informative. I’ve been able to meet a number of very important policymakers both at the city level as well as service providers on skid row, and other mental health and public health experts.

And from what I have learned in talking to these folks, we need a solution that brings everyone together. And the 9th Circuit decision is disastrous as a practical matter.

In the Boise decision, Judge Marsha Berzon wrote essentially that even if there are enough shelter beds, the government can’t necessarily force people to sleep in them. So you wonder where that leaves us, if you provide something that people say, ‘No, we don’t want that’?

I think that’s exactly right. These are important questions and I don’t think that as a society we are better off if we recognize a constitutional right to camp on the street and to refuse available shelter and services.

Are you concerned that we would go from the permissive to the draconian?

I am not. I am talking to policymakers and public officials almost every day. And what I’m hearing is people are desperate to solve this problem. I think we have reached a critical point in the public debate and we’re not going to go back.

Just in L.A. alone, we have enacted measures that are raising billions of dollars and yet we have paralysis. And much of that is because of the legal constraints that have been placed on policymakers as a result of these court decisions.