Supreme Court Will Not Hear Case On Unhoused Homeless

Today, the US Supreme Court turned down the opportunity to review a 9th Circuit case in which the 9th Circuit court found that it was unconstitutional under the 8th Amendment to criminalize sleeping outdoors. The court wrote “[a]s long as there is no option of sleeping indoors the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

Many commentators highly anticipated that this case arising out of a situation involving campers in Boise, Idaho would be considered by the Highest Court, and possibly overturned. As it stands, however, the decision will remain applicable to the unhoused in California when the state of being homeless is an unavoidable consequence of their being. Thus, California cities cannot criminalize homelessness unless they provide sufficient housing, such that the unhoused could be housed. It remains to be seen what “unavoidable” circumstances are, and whether reasonable restrictions on the time and place of homelessness will be permissible under this decision. Many cities have attempted to craft such reasonable restrictions, with varying degrees of success facing court challenges. One thing seems clear, however; that cities cannot export their problem to other municipalities.

As Southern California seeks to end the homelessness crisis, this decision will become increasingly important. It is also important for providers of affordable housing to understand their position relative to this decision. Communities that may not want to provide homeless housing may nonetheless prefer housed homeless to unhoused homeless.