The headline on Danny Westneat’s column on homelessness in last Sunday’s Seattle Times, ends with the phrase, “the Limits of the Liberal Dream.” Its message is that the homelessness problem cannot be solved unless cities have the authority to sweep away homeless encampments.
The column hit a nerve. As I write, the Times has posted 1,347 reader responses. People here care about this. Most of them, it seems, are sick of the encampments.
The news “hook” of the column was the news that Seattle and other West Coast jurisdictions were asking the U.S. Supreme Court to overturn two appeals-court rulings that have effectively stopped the sweeps. This was an important local story, and it was almost a week old and hardly covered by the local paper. Seattle’s petition was announced Monday, September 25. The Times “covered” it in Wednesday’s paper with a story from the New York Times that listed Seattle once, in the fifth paragraph. Not until Westneat’s column of the following Sunday did our local paper treat this as a story of local importance.
In announcing the petition, Seattle City Attorney Ann Davison said that “among our top moral priorities” should be helping “the unhoused move into permanent housing.” But that to do this, she said, the Supreme Court needs to restore the authority that the Ninth Circuit stripped away in what’s known generically as the Boise decision.
The petition was not only in the name of Seattle, but also the International Municipal Lawyers Association, the National League of Cities, the National Association of Counties, and the cities of Albuquerque, Anchorage, Colorado Springs, Henderson, Las Vegas, Milwaukee, Providence, Redondo Beach, St. Paul, San Bernardino, San Diego, Spokane, and Tacoma. And the first name on that petition was Seattle City Attorney Ann Davison, who had approved the text.
Davison’s petition is one of 25 on the Supreme Court website urging the Court to overturn the Boise rulings of the Ninth Circuit Court of Appeals. The briefs describe the encampments’ messiness, unhealthiness, and risk. For example, the petition from the Washington State Association of Sheriffs and Police Chiefs says that during the first part of 2022, 42 percent of the shots-fired calls in Seattle were from homeless encampments. It also noted outbreaks of group A streptococcus and shigella infections in the camps.
From San Francisco comes a petition from business associations including the chamber of commerce: “In many parts of the [San Francisco], it is impossible to walk down the sidewalk or enter buildings because of homeless encampments—collections of tents and other personal belongings where homeless people congregate to live and sleep. Encampments are frequently sites of drug use and violence, endangering both passersby and homeless people themselves… Sidewalks, streets, and other public spaces in many parts of the City are littered with an array of tents, tarps, boxes, shopping carts, cooking gear, trash heaps, spoiled food, suitcases…”
The petition by the City of San Francisco and Mayor London Breed skips the graphic descriptions. It is properly progressive, saying the city wants to deal with homelessness in a compassionate way. But it says the city needs to enforce laws “against persons sitting, sleeping, or lying” in at least some public spaces, some of the time, and that under the 9th Circuit’s rulings, it can’t.
The first of the two rulings the high court is being asked to overrule is Martin v. City of Boise (2019). In Martin, the Ninth Circuit ruled that Boise police could not stop a person from sleeping or camping on public property unless the person had “access to adequate temporary shelter.” In the second ruling, Johnson v. Grants Pass (2022), the Ninth Circuit ruled that Grants Pass had to allow all homeless persons in the Oregon town to camp on public property unless it had adequate shelter beds for all 600 of them.
The Martin ruling applies only to the involuntarily homeless. How would a city employee decide who is voluntary and who isn’t? By offering a shelter bed? They did that, yet in Seattle offers of shelter were declined 52 percent of the time, according to a 2021 study cited in Ann Davison’s petition. Many homeless people didn’t want to be in a shelter — perhaps because of lack of privacy, fear of theft, or because they didn’t like the rules. In Portland, between May 2022 and July 2023, officials said homeless persons were offered shelter beds 3,399 times and refused the offers 2,560 times — 75 percent of the time.
These numbers sound precise but are not. San Francisco explains: “Some unhoused people work with outreach workers to complete housing assessments, some refuse to engage at all, and some do not even provide their names. Others sometimes may be under the influence of substances and unable to interact with workers.”
Under Martin, if you are homeless voluntarily, the city can eject you from the park. But if the reason you are homeless is that you don’t have a job, and you don’t have a job because you’re too stoned to be of value to an employer, then maybe the city has to offer you a shelter bed or let you set up housekeeping on the sidewalk.
Martin implied that local authorities would judge whether each individual was voluntary or involuntary. That didn’t work too well. Johnson simplified it. Under Johnson, all campers are assumed to be engaging in an “activity they cannot avoid,” and are therefore involuntary. Under Johnson, the authorities must be able to accommodate all the homeless with adequate shelter beds (whatever “adequate” means) before it can clear any of them out.
The city doesn’t have to own the shelters, but if the shelter has a “mandatory religious focus,” it doesn’t count. (So much for you, Christians!)
In their petitions to the Court, the cities complain loudly of how much money they are having to spend. Over the past several years, one petition says, Seattle has spent nearly a billion dollars. San Francisco says it spent $672 million in the past fiscal year alone. Says the petition of that city’s mayor: “San Francisco would need an additional $1.45 billion to shelter everyone… This expenditure would total more than a third of San Francisco’s general fund budget.” That doesn’t count the spending on mental health, substance abuse and permanent shelter.
The Ninth Circuit based its two decisions on the Eighth Amendment to the Constitution, which prohibits “cruel and unusual punishments.” The phrase goes back to the law of England in the late 1600s, when it was used to ban the practice of disemboweling, a punishment shown (sort of) at the end of the movie Braveheart.
What’s considered “cruel and unusual” changes over the centuries, and many legal authorities have argued that the Supreme Court ought to throw out the death penalty as cruel and unusual. It hasn’t done that, but the more progressive Ninth Circuit now protects urban campers from the “cruel and unusual punishment” of a police sweep. In effect, campers have been granted a constitutional right to build cardboard-and-tarp shacks on public property, though banning that practice is arguably neither cruel nor unusual nor a punishment.
Of course the “liberal dream” was never really that the down-and-out should live in tents, shacks, and rickety motorhomes. The dream is of permanent housing. Many of the petitioning organizations at the Supreme Court share that dream, including the City of Seattle. The platform of the Washington State Democratic Party declares, “Housing is a human right.” It goes on to say, “It is the right and proper role of the government to provide permanent stable housing to people experiencing housing insecurity or are under-housed.”
If “housing as a human right” means free housing for everyone who can’t pay, for whatever reason they can’t pay, local governments have a steep fiscal mountain to climb. And further, if the unhoused are free to decline the offer of free shelter and continue camping on the sidewalks and in the parks, that implies that any “permanent stable housing” will have to be provided to them on their terms.