U.S. Supreme Court could take up encampment case, with repercussions for Minnesota

The U.S. Supreme Court may decide as soon as this week whether to take up a case that could have major repercussions for how cities in Minnesota and across the country respond to homeless encampments.

At issue: a challenge to a 2018 Ninth Circuit Court of Appeals ruling that homeless people could not be punished for breaking anti-camping ordinances if not enough shelter beds are available.

Since the decision in Martin v. Boise, leaders of some Western cities covered by the Ninth Circuit say encampments have overwhelmed their public space. Closer to home, officials such as Hennepin County Housing Stability Director David Hewitt grimly refer to the "West Coast scenario" when invoking the nightmare cycle of overcrowded shelters driving up the unsheltered population.

Now, more than 10 California cities, along with Phoenix and the League of Oregon Cities have asked the Supreme Court to review another encampment case from Grants Pass, Ore., and to reverse course, allowing them to enforce anti-camping laws with criminal and civil penalties.

The possibility of the justices taking up the Grants Pass case is already having ripple effects across the country, including in the Midwest's Eighth Circuit, said William Knight, a lawyer with the National Homelessness Law Center in Washington, D.C.

Cities looking to settle lawsuits related to encampments have instead dug in their heels in recent months, delaying proceedings until the Supreme Court reveals its intent, Knight said. If the justices take up Grants Pass v. Johnson, other encampment suits in lower courts would be paused.

"That's going to have a huge impact on people's lives, people who are being arrested and swept, people who are living in the winter without shelter," Knight said.

The Eighth Circuit Court of Appeals, which has jurisdiction over Minnesota, hasn't weighed in on the issue, but there have been local challenges to how cities deal with encampments.

In Minneapolis, the American Civil Liberties Union filed a federal lawsuit against the city, the Park Board and Hennepin County related to those agencies' destruction of homeless people's property in 2020.

Teresa Nelson, legal director of the ACLU of Minnesota, said she believes the case, which has not yet been decided, won't be directly affected because it asks a different legal question than those before the Supreme Court, which are based on the Eighth Amendment's prohibition of cruel and unusual punishment.

Instead, the Minnesota case focuses on Fourth and 14th Amendment claims that the government agencies not only confiscated homeless people's property, but destroyed it without due process — like impounding an illegally parked car and immediately scrapping it without giving the owner a chance to get it back.

Nelson said that in some Minnesota jurisdictions, people could face a misdemeanor charge for camping on public land without a permit.

For example, Rochester proposed a camping ban after Police Chief Jim Franklin asked for a tool that "would help law enforcement officials encourage people experiencing homelessness toward greater utilization of shelter/other social services." Opponents argue there isn't enough space in shelters.

"And so if the Supreme Court says, 'Yes indeed, it is cruel and unusual punishment to punish and criminalize somebody for sleeping outside when they have no other options,' then that could trickle down and be a way to restrain police in Minnesota from enforcing those kinds of ordinances," Nelson said.

Minneapolis has anti-trespassing and anti-camping ordinances but doesn't always enforce them against encampments, Assistant City Attorney Sharda Enslin said last week during a court hearing for another encampment lawsuit. This time, residents of south Minneapolis' Camp Nenookaasi sought to block the city's closure of their encampment.

U.S. District Judge Eric Tostrud denied that request, referencing the uncertainty surrounding the Supreme Court's potential consideration of the Oregon encampment case. The Minneapolis encampment was cleared Thursday, but moved just three blocks away.

In their briefs to the Supreme Court, the Western cities focused on headaches produced by encampments — trash, fires and stolen property, damage to levees designed to prevent flooding and illegal trapping of protected fish.

They're less specific about what kind of enforcement power they hope to secure. But in a legal brief in support of the cities' case, the Phoenix-based Goldwater Institute clarified: "A compassionate response would consist of providing people with the care they need — including taking them into custody against their will if they are incapable of managing themselves."

The League of Oregon Cities, in its brief, does not contend that there is adequate space in shelters that homeless people are simply choosing not to use. Rather, it argued that cities do not have the money to comply with current law.

"Local governments face an impossible choice. They can, on one hand, spend more and more to build housing for growing homeless populations," the League wrote. "On the other hand, local governments can forgo enormous spending on building shelters, but, if so, they can no longer enforce ordinances designed to protect public spaces for all communities."