The U.S. Supreme Court’s decision not to hear an appeal of a 9th U.S. Circuit Court of Appeal ruling limiting when homeless people can be arrested in California and eight other Western states has left lawmakers who want a crackdown over the homeless’ negative effects on quality of life not even sure what that might look like.

In 2018, the San Francisco-based appellate court threw out a broadly written Boise, Idaho, law allowing arrests for sleeping in public, holding that if there were no shelter beds available, this was a cruel and unusual punishment. But dozens of local governments submitted or co-signed amicus briefs to the Supreme Court arguing that the decision was murky at best. One oft-cited example: If a city has fewer shelter beds than its homeless population, is the city automatically blocked from arresting those sleeping in public? 

Some Los Angeles officials fear that’s a likely interpretation.

“The [Boise case] language, rather than citing clear principles where constitutional questions are at stake, makes local jurisdictions vulnerable to lawsuits as they struggle to achieve a balance between the legitimate rights and interests of homeless people and the legitimate rights and interests of other residents and businesses,” City Attorney Mike Feuer told The New York Times.

Los Angeles County Supervisor Mark Ridley-Thomas called the ruling “ambiguous and confusing” and said in a statement released by his office that the Supreme Court’s refusal to hear the appeal “handicaps cities and counties from acting nimbly to aid those perishing on the streets, exacerbating unsafe and unhealthy conditions that negatively affect our most vulnerable residents.”

Large homeless camps called ‘untenable’

It was Ridley-Thomas in September who signaled the arrival of a backlash on homelessness by breaking dramatically with Los Angeles Mayor Eric Garcetti, who has called for a compassion-first approach to what he calls “the moral and humanitarian crisis of our time.”

After persuading L.A. County supervisors to vote 3-2 to support filing an amicus brief backing Boise’s appeal, Ridley-Thomas issued a statement saying the status quo in which the city and county accept massive homeless encampments is “untenable. … We need to call this what it is — a state of emergency — and refuse to resign ourselves to a reality where people are allowed to live in places not fit for human habitation.”

Until then, Ridley-Thomas had been seen as a supporter of the view touted by Democrats like Garcetti and Gov. Gavin Newsom, who argue that homelessness can be sharply reduced with the patient, smart use of public resources. Earlier this year, Newsom had named Ridley-Thomas to be part of his state commission on homelessness.

The fear that the Boise ruling would destroy the quality of life in cities with substantial homeless populations was a focus of Boise’s appeal, which was prepared by the Los Angeles-based Gibson Dunn law firm. “Nothing in the Constitution … requires cities to surrender their streets, sidewalks, parks, riverbeds and other public areas to vast encampments,” the appeal asserted.

San Francisco official downplays impact of ruling

While they were outnumbered by lawmakers who feared the worst, some local officials in San Francisco and Oakland were less alarmed with the implications of the U.S. Supreme Court’s decision to pass on the Boise case.

In interpreting the appellate court’s 2018 ruling, these officials concluded they had the open-ended right to clear encampments that posed clear health and safety risks — so long as they notified those in encampments ahead of time that the camps are going to be cleared and offered the homeless storage for their belongings.

Jeff Kositsky, chief of San Francisco’s Department of Homelessness and Supportive Housing, told the San Francisco Chronicle that he considered the Supreme Court’s action to be a “nonissue.”

Seventy-five miles to the east, Sacramento officials were far more concerned. They fear the upholding of the Boise ruling will interfere with local governments’ efforts to remove the homeless camps that have frequently sprung up in flood-prone areas, especially by the American River in Sacramento.

Rushing to meet last week’s deadline for filing amicus briefs, dozens of local governments and other groups in California have jointly and separately beseeched the high court to uphold laws targeting sleeping in public. Such laws are seen as a key way to crack down homelessness.

The flood of legal filings came in support of an appeal to the U.S. Supreme Court filed by the city of Boise, Idaho. The city opposes a September 2018 ruling by a three-judge panel of the 9th U.S Circuit Court of Appeals that held that just as governments “may not criminalize the state of being ‘homeless in public places,’ [the city of Boise] may not criminalize conduct that is an unavoidable consequence of being homeless — namely sitting, lying or sleeping on the streets.”

In July, Boise hired attorneys Ted Olson and Theane Evangelis of the Los Angeles-based law firm Gibson, Dunn & Crutcher for its appeal. The attorneys sought amicus briefs from affected local governments and stakeholders in the states bound by the 9th U.S. Circuit’s ruling: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Lawyers for Boise say court overreached

Olson’s and Evangelis’ argued that the Boise ruling could create never-ending legal fighting by taking away a tool communities need to deal with homelessness, as well as create massive new fiscal obligations.

As CalWatchdog reported last week, the L.A. County Board of Supervisors backed joining an amicus brief prepared by the California State Association of Counties. Among the other government bodies that decided to back Boise:

• The city of Los Angeles. City Attorney Mike Feuer said last week that the ruling “could place the city at risk of litigation as leaders strive to fashion the humane, practical solutions this crisis urgently demands.” Mayor Eric Garcetti, an outspoken advocate of what he sees as a humane approach to homelessness, did not support Feuer’s decision.

• Riverside, Orange and Fresno Counties.

• The cities of Sacramento, Fullerton, Torrance and Newport Beach.

The decisions reflect a rift between high-profile politicians like Garcetti, Gov. Gavin Newsom and Sacramento Mayor Darrell Steinberg who call for a compassion-first approach on homelessness and politicians who are responding to frustration and anger from their constituents over homeless encampments disrupting neighborhoods. Homelessness has gotten steadily worse in most California cities over the last dozen years, fueled initially by the Great Recession and then by the high cost of housing.

But the Boise ruling also is unpopular across the West. The Idaho Statesman reported that 20 amicus briefs supported by 81 different groups from a range of states had been filed with the U.S. Supreme Court.

Plaintiffs’ lawyers doubt high court will take case

The newspaper noted that one was filed by MaryRose Courtney, whose brother is homeless and mentally ill, and the Ketchum-Downtown YMCA in Los Angeles. Unlike many of the briefs, it didn’t focus on the fiscal and quality-of-life headaches that could result from the Boise ruling. Instead, Courtney challenged the notion that tolerating sleeping in public was humane.

This approach is “leading to more aggressive policing, as police prohibited from enforcing anti-camping laws turn to arresting homeless people for more serious offenses like public urination, public defecation and public nudity,” she wrote. “Court rulings like the 9th Circuit’s in this case do far more harm than good because they lead to deregulation and generate apathy and inaction, as well as a sense of frustration that discourages further efforts to help the homeless.”

But plaintiffs’ lawyers from Idaho Legal Aid Services and the National Law Center on Homelessness & Poverty told the Statesman that they were skeptical the Supreme Court would take up the case because the ruling by the panel of 9th Circuit judges was based on earlier court rulings on homeless ordinances that had not been overturned. 

Plaintiffs have four weeks to prepare a response to the amicus briefs.

If the high court decides to take up the case, a hearing is expected in the spring with a ruling by the end of the court’s term in June, the Statesman reported.