Roy F. McCampbell's Blog

Is there a right to sleep outside?

Five years ago, a federal court issued a crucial ruling. People experiencing homelessness, the Ninth Circuit Court of Appeals said, can’t be punished for sleeping outside on public property if there are no adequate alternatives available.

The 2018 decision in Martin v. Boise did not create the homelessness crisis, which researchers attribute primarily to the lack of affordable housing. The number of people experiencing unsheltered homelessness — meaning those sleeping on the streets, in parks, in abandoned buildings or train stations, or anywhere not meant for humans to live — was rising before the decision. 

But as the number of unsheltered homeless people continued to grow over the past half-decade, the Martin decision has become a pivotal factor in shaping how cities respond to the very visible problem of tent encampments, particularly on the West Coast. While the case never gained huge name recognition, it undergirds the policy and politics of homelessness in 2023. So much of the fight about how to address homelessness today is, at this point, a fight about Martin.

The case dates back to 2009, when Robert Martin and a group of fellow homeless residents in Boise, Idaho, sued, arguing that police citations they received for breaking local camping bans violated their constitutional rights. In 2018, the Ninth Circuit agreed that prosecuting people for sleeping or camping on public property when they have no home or shelter to go to violated the Eighth Amendment’s prohibition on cruel and unusual punishment. 

“The government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter,” the court declared.

States, cities, and counties urged the US Supreme Court to take up the case, arguing the Ninth Circuit had created “a de facto” right to live on sidewalks and in parks that would “cripple” local leaders’ ability to safely govern their communities. But in 2019, the court declined, baffling some experts, though others suspect it’s because there were no conflicting circuit decisions at the time. Since then, Martin has shaped cities’ response — or lack thereof — to the growing challenge of homeless tent encampments. 

While the decision only formally applies in areas under the Ninth Circuit’s jurisdiction, the ruling has reverberated nationally, as local governments consider how to address unsheltered homelessness in ways that could avoid costly constitutional legal battles. There have already been dozens of court casesciting Martin, including in the Fourth Circuit in Virginia, and federal lower courts in Ohio, Missouri, Florida, Texas, New York, and Hawaii. 

For now, though, Martin’s impact can be seen most clearly out West. Just before Christmas 2022, for example, a district judge cited Martin when she ruled that San Francisco can no longer enforce encampment sweeps — meaning clear out homeless individuals and their property from an outdoor area — since the city lacks enough shelter beds for those experiencing homelessness to move into. San Francisco appealed the decision, arguing it’s “unnecessarily broad and has put the City in an impossible situation.” 

In Phoenix, Arizona, residents and business owners filed a lawsuit last summer against the city for allowing a downtown homeless encampment to grow with nearly 1,000 people, but a federal judge — echoing Martin — barred Phoenix in December from conducting sweeps if there are more homeless people than shelter beds available. A competing decision issued in March by a state judge ordered Phoenix officials to clean up the “public nuisance” at the encampment by July 10, arguing the city has “erroneously” applied Martin to date.

In Portland, Oregon, meanwhile, officials have scrambled to revise their local camping ordinance to be a “daytime” camping ban from 8 am to 8 pm instead, in recognition that any total camping ban is likely illegal under Martin.

Supporters of a more “get tough” approach to encampments say the social and political costs of allowing tent cities to proliferate are too high, and that waiting for cities to buildenough new housing before acting is untenable, both morally and politically. Some think officials are getting complacent in relying on Martin as an excuse to maintain the status quo.

Advocates for those experiencing homelessness say politicians are squandering an important opportunity by fighting for the right to conduct encampment sweeps — which can be both cruel and counterproductive to the larger goal of ending homelessness. Instead of looking for legal loopholes to Martin like daytime camping bans and sanctioned encampment sites, advocates say leaders should be investing more in solutions like affordable housing and shelter options that afford people more privacy. 

“Our end goal is not to create a right for people to sleep on the streets. That’s the limited remedy we’ve been given under our Constitution,” said Eric Tars, the legal director for the National Homelessness Law Center. “They’re missing the point of Martin if they’re just trying to continue a criminalization approach in a more constitutional way.” 

Cities are scrambling to comply with — and find loopholes in — Martin v. Boise

Unsheltered homelessness has risen sharply over the last seven years, and at a faster rate than homelessness overall. Unsheltered homeless people now account for 40 percent of all homeless people in the country, up from 31 percent in 2015. 

Political pressure has mounted to respond to this growing problem of people sleeping in alleys, parks, and train stations. While it’s not clear this would be legal under Martin, a number of cities have turned to the idea of so-called sanctioned encampments, or legalized campsites. These are effectively designated areas where unhoused individuals can live outside, and some come with varying degrees of public services, like bathrooms, power outlets, medical care, and on-site case management.

In Portland, Oregon, lawmakers voted in November to create several large sanctioned campsites for homeless individuals, and ban the more than 700 other encampments spread across the city. Austin, Texas, has operated one sanctioned encampment of so-called “tiny homes” since 2019, on a seven-acre plot of asphalt near the airport. Denver, Colorado, is also moving to make its so-called “managed campsites” from the pandemic a permanent homelessness response tool.

The trade-off for legalized campsites, however, is that sleeping outside anywhere else in a city would then be illegal. This helps alleviate leaders’ political problem of having tents pitched all over a city, but activists worry it’s just a way to steer the sight of homelessness out of public view, and criminalize people who refuse to go. Some cities are considering sanctioned encampments with a six-month residency limit, even if there’s no permanent affordable housing option for those experiencing homelessness to go to after that point.

Some advocates have taken a firm stance against the idea; they see sanctioned encampments as a means to segregate and criminalize unhoused people and effectively kick the can down the road by not finding them permanent housing.

They’re not wrong that sanctioned encampments can require a great deal of money, staff time, and effort. In 2018, the United States Interagency Council on Homelessness warned that “creating these environments may make it look and feel like the community is taking action to end homelessness on the surface — but, by themselves, they have little impact on reducing homelessness.” 

For these reasons, some cities — like Houston — have rejected the idea. “We can do better as a society. We shouldn’t tolerate it and say that’s okay,” Marc Eichenbaum, the special assistant to Houston’s mayor on homeless initiatives, told NPR.

But other cities with fewer available housing options say sanctioned encampments represent a decent interim solution, and maybe even better for unhoused residents compared to scattered campsites if cities can more effectively target social services to those corralled together. 

Legalized campsites can also have a lower barrier to entry than many existing shelters, so supporters are framing them as a harm-reduction approach to homelessness. Groups like the National Homelessness Law Center, which used to firmly oppose sanctioned encampments, have recently softened their stance to say they should be considered on a case-by-case basis. 

“The only time that we would see a role for that approach is if you had an exit plan,” said Tars, who pointed to some models in Seattleand Gainesville, Florida, that he thought were more positive. “Otherwise you are just creating a permanent shanty town.”

Meanwhile, Republican-governed states are exploring more punitive models. In at least half a dozen states, lawmakers have pushed sanctioned encampment bills based on templates from the Cicero Institute, an Austin-based conservative think tank. The bills propose to penalize cities that permit tent encampments, to put time limits on sanctioned encampment sites, and to divert funding from permanent supportive housing into things like mandatory drug treatment. 

In 2022, Tennessee became the first state to pass a bill that would make camping on local public land a felony. Missouri’s version will allow the state’s attorney general to sue local governments that don’t enforce encampment bans. Activists say Cicero’s aggressive opposition to housing-first will lead invariably to more homeless people in jail.

Looming ultimately above all these various sanctioned encampment models is the Martin decision, which says a city-wide camping ban would be unconstitutional if the city lacks sufficient shelter options. Leaders recognize they probably can’t ban camping everywhere under Martin, but they want to see if they can ban it in most places instead. Yet whether any bans could exist if a city lacks enough shelter beds remains an open Eighth Amendment question. 

Tars, of the National Homelessness Law Center, thinks the answer is no. “Martin is very clear when it’s talking about ‘adequate’ [housing] alternatives it’s talking about indoor shelter beds, and legalized encampments are not shelter beds,” he said, pointing to a 2021 federal court decision that found a sanctioned encampment site in Chico, California, was inadequate “shelter” under Martin. A federal judge described Chico’s encampment as “open space with what amounts to a large umbrella for some shade” that “affords no real cover or protection to anyone.”

Tars acknowledged, though, there’s a “legal gray area” in the Martin decision, as one footnote suggests cities could create some “time/manner/place” restrictions for camping.

Earlier this year, when a Maricopa County Superior Court judge ordered Phoenix officials to clear its notoriously large downtown encampment, he urged the city to consider “the creation of controlled, outdoor camping spaces on vacant City property” if there were not enough shelter beds to move people into. 

As in Houston, Phoenix officials have rejected the sanctioned encampment approach to date, saying resources should be invested into housing solutions with air conditioning: Over 80 percent of Maricopa County’s 425 heat-related deaths in 2022 occurred outside. Local officials estimate unsheltered homeless people are at “200 to 300 times higher risk” of heat-related deaths than the rest of the population.

Still, even if Phoenix leaders embraced sanctioned encampments, it’s not clear the idea would hold up under Martin. Resolving some of these questions will realistically require the Supreme Court, but that’s unlikely to happen until there’s competing circuit court decisions to pressure it to take the issue up.

Homelessness policy is at a crossroads 

There are court rulings, and then there’s enforcement of those rulings. Homeless advocates say it seems as though too many cities are failing to comply with rulings that bar unconstitutional sweeps. 

For example, lawyers say little has changed in San Francisco since a federal judge ruled against sweeps six months ago, and that homeless residents continue to be displaced under the guise of street cleaning. 

“What we’ve seen has been a really aggressive media campaign led by the city to suggest we are pro-open-air drug markets and anti-accessibility for sidewalks,” said Zal Shroff, an attorney with Lawyer’s Committee For Civil Rights representing the homeless plaintiffs.

“You’re allowed to clear genuine public safety hazards, but when you do that and throw their laptops and cellphones into dumpsters, that’s not a cleaning — that’s a seizure of someone’s belongings without due process,” he added. In late May, Shroff’s team filed a court motion, calling for increased monitoring.

Jen Kwart, a spokesperson for San Francisco’s city attorney, told Vox they’re “complying with the preliminary injunction while simultaneously expending hundreds of millions of dollars annually to provide shelter and services to unhoused people.” 

In Phoenix, while the city is working to clear out its large homeless encampment by July 10, per the Maricopa County Superior Court, the ACLU has been arguing the city’s clearings have violated the rights of unhoused people. 

“Even if you’re unsheltered, you have due process rights to your belongings under the Fourth and 14th Amendments,” said Benjamin Rundall, an attorney with ACLU of Arizona. “You can’t violate someone’s constitutional rights in order to vindicate someone’s private property rights.” 

It’s not clear at all where the estimated 700 unhoused people living in the downtown Phoenix encampment are supposed to go. There are not enough available shelter bedsin the city; the four largest ones were at 97 percent capacity as of April. 

A spokesperson for Phoenix’s Mayor Kate Gallego did not return requests for comment, but an April city press release said they were exploring hotel options and expected 800 new shelter beds to come online before the end of 2024.

Some conservative legal advocates see the Maricopa County Superior Court ruling as offering a blueprint for other cities and states to clear out their tent encampments. “For too long, liberal leaders have used the Martin ruling as an excuse to allow rampant crime and homelessness to take over neighborhoods,” argued Austin Vanderheyden, a liaison at the Goldwater Institute, in the Orange County Register. “But no longer.”

“Our lawsuit was never about solving homelessness,” wrote Ilan Wurman, who represented the Phoenix business and property owners. “It was about solving the humanitarian crisis that these encampments create.”

Meanwhile, as pandemic eviction aid dries up, homeless advocates are bracing for more people to lose their housing in the coming months. Washington, DC, recently reported an 11.6 percent increase in homelessnessfrom 2022. While the nation has been increasing its shelter bed capacity over the last few years, fewer people are choosing to stay in them. Many have decided sleeping outdoors is preferable to the rules and conditions of congregate shelters.

Figuring out where cities go next will be shaped in no small part by how leaders and courts land on interpreting Martin.

“It really feels like we’re at a tipping point,” said Tars. “Things could either get much better or much worse.”