After nearly a year in which city and state leaders in California began swinging to the right on the issue of homeless encampments and the civil rights of homeless people, advocates say the tide may be turning again.
The Supreme Court decision last summer allowing cities to penalize homeless camping appeared to settle a half-decade's worth of disagreements in the courts over the issue. Still, as city leaders try to use the decision to crack down on encampments, legal arguments persist about the fairness of these actions when cities remain low on shelter space.
San Jose Mayor Matt Mahan made a statement Thursday suggesting his support for criminal consequences for homeless individuals who refuse shelter, as ABC 7 reports.
"One out of three people in this area who are offered housing refuse to come indoors," Mahan said, per ABC 7, adding that the solution may be to arrest people who refuse multiple offers of shelter.
But UC Berkeley law professor Laura Riley tells the station that "it's not practical and it's completely inhumane" to suggest this, given that there around 6,000 unhoused people in San Jose and not nearly that many shelter beds — so even if you offered everyone a bed and everyone accepted, many people would still be left out in the cold and potentially penalized for it.
This same argument underpinned the 2018 decision by the Ninth Circuit in Martin v. Boise, which found that such criminal penalties amounted to cruel and unusual punishment when a city had no shelter to offer.
The Supreme Court's decision last year in Johnson v. Grants Pass, which centered on a similar case brought by homeless individuals in Grants Pass, Oregon, even used San Francisco as a prime example in the majority opinion. Justice Neil Gorsuch quoted former SF Mayor London Breed's amicus brief in his opinion, suggesting that the city's intention was "not to criminalize homelessness" with its anti-camping ordinances, but "to encourage individuals experiencing homelessness to accept services." That decision distinguished between the punishment of a person's "status" and the punishment of their actions when it comes to setting up camp on a public sidewalk, suggesting that cities have the right to enforce laws against this.
Justice Sonia Sotomayor argued in her dissent, "Sleep is a biological necessity, not a crime... It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles."
"Instead," she continued, "the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested."
As ABC 7 reports, at least one federal judge is posing a challenge to the SCOTUS ruling, siding with a disabled 64-year-old homeless woman who sued the City of Vallejo over its effort to dismantle her encampment.
In February, US District Court Judge Dena Coggins ruled in favor of the woman, Evelyn "Brown Sugar" Alfred, halting the city's effort to clear Alfred's makeshift home, and the city is now appealing the case to the Ninth Circuit — setting up the first potential challenge to the conservative Supreme Court's 2024 decision.
Judge Coggins had ruled previously in December, granting Alfred a temporary restraining order, writing, "Plaintiff has only demonstrated that there are sufficiently ‘serious questions’ regarding Defendant City’s liability under the ADA with respect to her request for a temporary restraining order. Defendant City has not been heard in response; it may well be that Defendant City has not violated any law."
Alfred's neighbors on Mare Island Way, where she has been living in a makeshift structure covered in tarps, had petitioned the court in Alfred's favor, as the Vallejo Sun reported, saying that she had been asset to the neighborhood, kept her area clean, and had even removed many overgrown weeds on the vacant property where she was camping.
Similarly, last month, we learned of a homeless woman camped in Fairfax's Peri Park who had successfully gotten a court stay to keep her encampment from being cleared by the city.
It's not entirely clear what impact the SCOTUS decision has had when it comes to the total number of people living on the streets of San Francisco — or how many of them may have faced some sort of criminal consequences. Ahead of last November's election, former Mayor London Breed touted the fact that there had been a 60% drop in the number of tents observed on city streets between July 2023 and October 2024. Still, though, the city acknowledged that only around 10% of its engagements with homeless individuals between August and October had resulted in the acceptance of offers of shelter.
