The New Homelessness

For the over half-million people currently homeless in the United States, the U.S. Constitution has historically provided little help. In 2018, this changed. A series of Ninth Circuit Court of Appeals decisions gave homeless individuals a right to occupy public spaces with some of their belongings. The surprising source of the right was the Eighth Amendment. The courts held that for people with no way of complying with laws banning public sleeping, punishing them for doing so constituted cruel and unusual punishment.

This line of cases has changed the face of homelessness in America, giving rise to a sociopolitical phenomenon that we call “The New Homelessness.” Specifically, it has catalyzed the erection of sanctioned encampments throughout America’s urban landscapes. As this new jurisprudence first emerged, many politically progressive, legally risk-averse local officials gave these cases an implausibly broad interpretation, effectively nullifying local anti-camping ordinances altogether. But after a public backlash, officials adopted a far narrower interpretation, giving rise to designated encampments coupled with new city-wide camping bans. The outgrowth of these developments has been profound: Homeless people in America increasingly began to live in public encampments.

In 2024, a six-justice majority of the U.S. Supreme Court in City of Grants Pass v. Johnson overturned the Ninth Circuit’s right-to-camp doctrine and, with it, the possibility of a nationwide right to camp on public land based in the Eighth Amendment. But we argue that the New Homelessness will nonetheless remain a fixture of American law and politics. As a legal matter, it has generated state and local legislation that has supplanted federal constitutional doctrine. Just as important, the New Homelessness has offered political lessons, prompted evolving social norms, and created an encampment infrastructure, which together will ensure the sociopolitical institution’s survival regardless of federal doctrine. Absent radical measures to address the root causes of homelessness, the New Homelessness will form part of the American legal, political, and urban landscape for the foreseeable future.

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Introduction

“…the law, in its majestic equality, forbids rich and poor alike to sleep under the bridges, [and] to beg in the streets . . . .”

– Anatole France (1894)[1]

“Squalor in tents is not the way, despite this [law] of naïveté. Quit enabling, if you will, our children’s desire for the fentanyl pill, which drives them to steal and turn tricks in tents, and break the windows of those who pay rent.”

– Jeffrey S. Merrick (2023)[2]

Almost two in every thousand Americans are currently homeless.[3] This is a tragic social and political reality, but it is not traditionally a constitutional issue. As the French poet Anatole France once observed: “the law[],” “in its majestic equality . . . forbids rich and poor alike to sleep under the bridges.”[4] The U.S. Constitution is certainly majestic in this way: It is committed strongly to formal equality, but it lacks any commitment to social welfare rights.[5] Indeed, time and again, the Supreme Court has reaffirmed this insight, holding that there is no federal constitutional right to a minimal subsistence,[6] education,[7] or healthcare.[8] The Court has made equally clear that there is no constitutional right to housing.[9]

But in late 2018, that became less obvious. In a series of decisions, the Ninth Circuit, the court with federal appellate jurisdiction over nearly 20 percent of Americans and 42 percent of the nation’s total homeless population (that is, 275,000 people),[10] inadvertently created a right unique in American constitutional law: essentially, a legal license to sleep on public land. The surprising basis for this new right was the Eighth Amendment: for people with no residence—and therefore no way of complying with laws banning sleeping in public places—punishing them for doing so amounted to “cruel and unusual punishment[].”[11] In a 2018 decision, Martin v. City of Boise, the Ninth Circuit held that so long as the city of Boise lacked enough adequate available shelter beds for the city’s homeless individuals, it could not enforce its city-wide anti-camping or related ordinances.[12] The city was thus forced to accommodate the homeless population on some public spaces unless and until it made more shelter available. In a 2022 decision, City of Grants Pass v. Johnson, the Ninth Circuit expanded Martin to give homeless people the right to stay on public land with their bedding and some other belongings.[13] Following Martin, homeless individuals and their advocates filed over one hundred lawsuits against cities seeking to enforce these decisions, including Grants Pass, in state and federal court and other circuits likewise engaged with this jurisprudence.[14]

These decisions are the basis of a phenomenon we call The New Homelessness[15]: a trend of America’s homeless increasingly residing in long-term encampments in urban centers with legal impunity.[16] Across the country, people erected encampments in public parks, under bridges, and on sidewalks and could remain largely undisturbed by law enforcement.[17] This phenomenon unfolded in three stages. First, many local jurisdictions interpreted Martin to prohibit anti-camping ordinances. Second, cities permitting camping saw the establishment and growth of homeless encampments. Third, after public backlash, city officials restricted these encampments to certain designated areas, which, in turn, brought about the final stage of the New Homelessness: legally sanctioned encampments.

In the first stage of the New Homelessness, many local jurisdictions interpreted the Martin decision considerably more broadly than the court apparently intended or than the decision’s language supported. In fact, the Ninth Circuit itself described its holding as “narrow,” giving substantial discretion to local officials to regulate the time, location, and structure of urban camps.[18] Nonetheless, many local officials acted as though they were enjoined from enforcing any anti-camping or related ordinances so long as there were not enough available shelter beds in their jurisdiction.

Why such a broad interpretation of Martin? One key reason was the substantial uncertainty over the precise parameters of the decision, which made many local officials especially risk averse regarding potential lawsuits and legal liability. Indeed, many cities were sued, and district courts enforcing Martin created further legal uncertainty by adopting conflicting interpretations. For example, a district judge in San Francisco enjoined the city from enforcing its anti-camping ordinances altogether, implicitly adopting the same broad interpretation as some other city officials had.[19] Martin also seemed to give some officials political cover to enact measures they already preferred but were legally prevented from implementing at scale.[20] Many homeless-rights advocates view a right to urban camping as complementary to Housing First strategies, which prioritize securing supportive housing before addressing other needs.[21] Many also portray “self-sheltering” in community camps as more humane than shelters: Tent encampments, unlike most shelters, offer privacy, impose no strict rules or curfews, and allow residents to stay with their pets and romantic partners.[22] And during the COVID-19 pandemic, allowing encampments was consistent with guidance from public health officials such as the Centers for Disease Control, which warned of the spread of COVID-19 from people’s moving in and out of housing shelters.[23] The New Homelessness jurisprudence had such a profound impact, then, in part because it aligned with the policy preferences of many local decision-makers.

In the second stage of the New Homelessness, permissive urban camping policies meant not only that tent camps sprang up across cities, but also that homeless individuals were legally free to abandon shelters for camps. And many did so.[24] Predictably, many homeless people also chose to migrate to jurisdictions with more permissive urban camping policies.[25] Jurisdictions with permissive camping policies saw not only an explosion of encampments but also an increase in their unsheltered populations. For example, many view city officials’ implausibly broad interpretation of Martin—which led to lax enforcement and, in some cases, complete non-enforcement of existing anti-camping laws—as responsible for “the Zone” in Phoenix, a camp with some thousand residents.[26] And in Los Angeles, commentators observed that Skid Row-style tent cities had sprung up all over the city.[27]

In the third stage of the New Homelessness, public backlash to indiscriminate public camping led officials to confine encampments to designated areas. As homeless individuals were erecting camps, public opinion was turning against them.[28] The public seemed increasingly unwilling to criminalize homelessness. But, as reflected by Oregon attorney Jeffrey Merrick’s “[s]qualor in tents is not the way” comments on Oregon’s pending right-to-rest legislation,[29] the public also did not support indiscriminate urban camping. In response to public backlash, many local officials reconsidered their positions, narrowed their interpretation of Martin, and started imposing time, location, and condition restrictions on urban camping.[30] Thus arose the phenomenon of legally sanctioned and designated encampments along with the reintroduction of camping bans in the rest of the cities.[31] Such sanctioned encampments represent a kind of bipartisan consensus: They are promoted by conservative activists,[32] yet they have been adopted by some of the nation’s most progressive cities. For local officials, sanctioned encampments have become the quick-and-cheap fix to a seemingly unsolvable problem. The encampments constitute a balancing act involving the rights of the homeless, for whom permanent housing remains unavailable, and the growing public demand to reclaim public spaces. Indeed, a flurry of state-level legislation has focused on sanctioned encampments.[33] Instead of being arrested or issued move-along orders at the threat of arrest, the nation’s homeless increasingly live in sanctioned tent cities.[34]

This five-year build-up of socio-legal infrastructure at state and local levels has guaranteed that the New Homelessness is here to stay. In early 2024, the Supreme Court overturned Grants Pass.[35] It held that the Eighth Amendment may prevent criminalizing a person’s mere status (e.g., “drug addiction” or “homelessness”), but it does not protect acts that are linked to that status—even involuntary ones—such as sleeping in public spaces.[36]

Even though the federal doctrine changed, the New Homelessness is unlikely to. Despite its power to interpret the federal Constitution nationwide, the Supreme Court cannot easily reverse the effects of a newly recognized right. That recognition has spurred a flurry of state-level legislation that will remain despite the Court’s holding. Some progressive states and cities have enacted legislation that codifies core parts of the Ninth Circuit’s Martin and Grants Pass holdings into state law. And conservative state legislatures have tended to enact legislation allowing cities to create sanctioned encampments while requiring camping bans in the rest of the city.

Even though the Supreme Court returned federal doctrine to the pre-Martin status quo, the socio-legal reality of legally sanctioned encampments is likely to persist. After all, these encampments are favored by a coalition of odd bedfellows: conservative lawmakers, homeless encampment residents who prefer sanctioned encampments over shelters, and progressive city officials forced to balance homeless rights with demands from the general public. Local jurisdictions have also made substantial investments in the encampments’ infrastructure, such as public-health resources, facilities, and welfare services. And the encampments align better with changing values on homelessness than a return to the pre-Martin status quo of criminalizing homelessness. Even the city of Grants Pass itself created a series of designated encampment venues in the summer of 2024, in which its homeless community can stay indefinitely, although they must periodically rotate between camps.

In the decades to come, homeless-rights advocates might succeed in creating a sea change in U.S. housing law and policy or in otherwise enacting measures addressing the root causes of homelessness. But until then, the New Homelessness phenomenon will remain part of the American legal and urban landscape for the foreseeable future.

Before proceeding, we acknowledge that homelessness is complex and multicausal. Constitutional rules can help to alleviate or exacerbate it, but, collectively, other forces and institutions are surely just as or more important. Labor and housing markets; local welfare, drug, and housing policies; the availability of mental health services; and a broad set of sociocultural factors all play a role.[37] Countless articles and books in economics, history, sociology, public health, law, and other disciplines have explored these relationships. Our claim here is that recent constitutional developments are a significant cause, though certainly not the only such cause, of the qualitative developments that we call the New Homelessness.

The remainder of this Article proceeds as follows. Part I sketches out the precursor to the New Homelessness doctrine, beginning with the 1960s constitutional response to anti-vagrancy laws and culminating in Martin and Grants Pass, and notes the many questions the Ninth Circuit has left open. Part II then describes the emergence of the New Homelessness as a sociopolitical institution, documenting how it has accelerated the growth of tent cities across the nation, first through the non-enforcement of camping ordinances and later through the rise of sanctioned encampments. Part III shows why the institution is likely to survive the Supreme Court’s 2024 decision and the fall of the federal constitutional legal institution. Finally, the Article concludes by discussing the potential future of homelessness in America.

I. The Evolving Legal Status of Homelessness

For over a century, the rights of Americans who lack a home or domicile have been expanding, albeit in fits and starts. To be sure, the last century has seen political backlashes to homelessness[38]—often producing local, state, or federal legislation intended to protect property owners and the general public and restrict, conceal, or otherwise marginalize the homeless.[39] And the expanded de jure rights have certainly not addressed the root economic, sociological, or public-health causes of homelessness. Indeed, the fraction of the population without reliable residence has actually increased in recent decades.[40] Yet under the auspices of due process, property-seizure protection, and free expression, a trend emerged of courts recognizing more formal constitutional rights of the homeless. The rights giving rise to the New Homelessness were the latest developments in that trend.

A.      Evolution of Homeless Rights

To understand this transformation, consider where we started. At the Founding, non-property owners were barred from voting in most states. The rationales for limiting the franchise to property owners ranged from protectionist to merely elitist: The property ownership requirement may have simply represented a cynical effort by state legislators to protect the property interests of landed gentry (like themselves) from divestment or heavy taxation.[41] Only slightly less cynically, lawmakers may have distrusted non-landowners (who, on average, had less formal education) to make prudent policy decisions, or perhaps lawmakers believed non-landowners were not sufficiently attached to the society they would help govern; i.e., without fee simple, maybe they were just “passing through.”[42] Whatever the initial rationale, in 1856, North Carolina became the last state to abolish the voting requirement of land-ownership, giving the franchise to nearly all White men twenty-one and over—with or without a domicile.[43]

Throughout much of U.S. history, having no domicile was not only disenfranchising, but it could also subject one to criminal punishment. The colonies inherited laws from Great Britain prohibiting “vagrancy,” meaning the status of having no means of financial support or permanent residence.[44] Authorities applied such laws for much of the nineteenth and early twentieth centuries to effectively criminalize poverty and homelessness, permitting selective detention and incarceration of “undesirables.”[45] Following the Civil War, existing and new state laws were applied selectively to freed Black people with the goal of temporarily sending them back into forced labor and incentivizing them to stay away from certain communities.[46]

Many vagrancy laws were repealed or declared unconstitutional on due process vagueness grounds in the second half of the twentieth century.[47] But more narrowly tailored laws criminalizing acts like loitering, public drunkenness, and aggressive panhandling, and—most relevant here—“anti-camping,” “anti-sleeping,” “sit/lie,” and unattended-property seizure-and-destruction laws remained valid and enforced throughout much of the country into the twenty-first century.[48]

Until very recently, having no place to store one’s personal property in many cities made it especially vulnerable to unilateral government seizure—especially from sidewalks and public parks—and summary destruction. Many municipal governments made a practice of confiscating personal property left unattended.[49] Some cities argued that, given the property’s location in public spaces, the homeless had no cognizable constitutional interest in their property.[50] In Lavan v. City of Los Angeles, the Ninth Circuit had a different view: A divided panel held that the homeless plaintiffs’ interest in their chattels was a recognized property interest, triggering due process rights before its destruction.[51] The court, therefore, “reject[ed] the City’s suggestion that we create an exception to the requirements of due process for the belongings of homeless persons.”[52]

B.      The Anti-Anti-Sleeping Legal Movement

The prevalence of U.S. homelessness has ebbed and flowed over the last several decades. Homelessness prevalence, however, is not the same thing as homelessness visibility. Even as the population of people classified as homeless, i.e., those without regular shelter access, decreased slightly between 2007 and 2020, the (smaller) number of people unsheltered on any given night increased by approximately fifty thousand between 2014 and 2020.[53] In other words, at any given time, there are more people “who lack[] a fixed, regular, and adequate nighttime residence,”[54] often residing outside, in a car, abandoned building, or another “place not meant for human habitation,” as opposed to, say, a shelter or transitional housing.[55]

As U.S. homelessness visibility began to increase, cities increasingly enacted measures prohibiting camping (anti-camping ordinances) and sleeping or lying down (sit-lie ordinances) on some or all public property.[56] Between 2006 and 2019, the number of local laws throughout the country banning sitting or lying in public ways increased by 78 percent, laws banning living in vehicles increased by 213 percent, and laws banning camping city-wide increased by 92 percent.[57] These laws jointly produced thousands of arrests, citations, and incarcerations of homeless people in the 2010s and early 2020s.

Homeless people and their advocates, most notably the National Homelessness Law Center (NHLC),[58] have developed several legal tactics to fight these laws. The tactics include First Amendment challenges to anti-panhandling measures, Fourth Amendment challenges to property seizures, as reviewed above, and substantive due process attacks on anti-sleeping laws for those with no other place to sleep.[59] But perhaps the most successful tactic has come from an unexpected, though not entirely illogical, source: the prohibition of cruel and unusual punishment under the Eighth Amendment.[60]

1.       Anti-Sleeping Laws as Cruel and Unusual Punishment

The Eighth Amendment as a basis for a right to sleep is a bit of a surprising doctrinal development: How can imposing a small fine or short jail stint be cruel and unusual? But since the early 1960s, the Eighth Amendment has not only categorically prohibited certain punishments (like torture)[61] and disproportional punishments (e.g., the death penalty for rape),[62] but it has also restricted the offenses that the government may punish at all.[63] The origin of this restriction on what may be punished is the Supreme Court’s 1962 decision in Robinson v. California. There, the Court held that the government may not criminalize the simple status of “narcotic addiction,” unless some act or behavior (such as drug use or possession) is also a requisite element.[64]

Six years later, in Powell v. Texas, the Court had the opportunity to clarify the scope of Robinson when it considered the Eighth Amendment constitutionality of a Texas statute criminalizing “public drunkenness.”[65] The Court upheld the law, with four justices, led by Justice Thurgood Marshall, reasoning that appearing drunk in public is distinguishable from having a chronic condition: The former is a behavior, not a condition, even if the condition may compel the behavior. Justice Marshall believed that Robinson did not prohibit the government’s criminalization of “involuntary” conduct and that Mr. Powell’s public-drunkenness conviction should be upheld.

A group of four other justices, led by Justice Abe Fortas, disagreed, reasoning that criminalizing the behavior that a condition (here, alcoholism) compels is not materially different from criminalizing the condition itself: “[C]riminal penalties may not be inflicted upon a person for being in a condition he is powerless to change,” wrote Justice Fortas.[66]

With the Court evenly split 4–4, that left Justice Byron White, who joined the four justices led by Justice Marshall to uphold the conviction, but only because the defendant, Mr. Powell, had not shown that alcoholism compelled both his intoxication and his public intoxication.[67] Justice White implied he would have voted differently had Mr. Powell been homeless or otherwise forced to be in public.[68] Thus, it seems that a majority of the Court (the four-justice dissent plus Justice White) would have held the law unconstitutional as applied to Mr. Powell had he shown that his behavior was involuntary or, in other words, completely compelled by his status.

Twenty-four years later, in Pottinger v. City of Miami, a Southern District of Florida district judge built on Justice White’s Powell concurrence to hold that Miami’s practice of arresting homeless people for sleeping on public property violated the Eighth Amendment.[69] The court reasoned that Michael Pottinger and his co-plaintiffs, unlike the plaintiff in Powell, had “no realistic choice but to live in public places.”[70] The Eleventh Circuit Court of Appeals never reviewed the Eighth Amendment issue because the parties eventually agreed to a court-supervised program that regulated several aspects of how the city treated homeless individuals (the “Pottinger Agreement”), which continued until its court-approved dissolution in 2019.[71]

Fourteen years after Pottinger, in 2006, a divided Ninth Circuit panel in Jones v. City of Los Angeles also drew on Justice White’s Powell concurrence. White had written that “[t]he proper subject of inquiry is whether volitional acts brought about the ‘condition’ and whether those acts are sufficiently proximate to the ‘condition’” to permit penal sanctions on such condition.[72] Faced with claims by homeless plaintiffs that the city had criminalized their sleeping on the sidewalks of Skid Row, the Jones majority reasoned that “sitting, lying, and sleeping”[73] are ancillary to being human, and that, for those with the condition of homelessness, they must be done in public.[74] As such, as long as there were not enough shelter beds for the city’s homeless, the city could not constitutionally criminalize homeless people’s “involuntarily sitting, lying, and sleeping in public.”[75]

2.       A Constitutional Shift: Martin v. City of Boise & Johnson v. City of Grants Pass

Jones was vacated following a settlement. But in 2019, another Ninth Circuit panel adopted the “reasoning and central conclusion” of Jones, importing much of its logic into the panel’s binding decision in Martin v. City of Boise.[76] In Martin, six current or former homeless people had challenged two ordinances of Boise, Idaho.[77] One ordinance, the “Camping Ordinance,” prohibited using “any of the streets, sidewalks, parks, or public places as a camping place at any time,”[78] with “camping” defined as “the use of public property as a temporary or permanent place of dwelling, lodging, or residence.”[79] Another, the “Disorderly Conduct Ordinance,” prohibited “[o]ccupying, lodging, or sleeping in any building, structure, or public place, whether public or private . . . without the permission of the owner or person entitled to possession or in control thereof.”[80] The unanimous Martin panel first determined that homelessness is a status immune from criminal punishment.[81] The panel then used the reasoning of the patched-together Fortas–White opinions in holding that, for the involuntarily homeless with no other place to sleep, the status of homelessness compels the behavior of sleeping in a public place, and is therefore also involuntary and may not be criminalized.[82] An ordinance violates the Eighth Amendment, the panel held, where “it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them.”[83]

The city unsuccessfully petitioned for rehearing en banc, and several judges filed opinions dissenting from that denial. On the Eighth Amendment issue, Judge Milan Smith took issue with the panel’s interpretation of Powell as prohibiting the criminalization of involuntary activity.[84] He argued that, under Supreme Court precedent, a dissent (here, Justice Fortas’s dissent) cannot be considered in determining the Court’s holding.[85] Instead, he argued, the Circuit was bound to follow Justice Marshall’s Powell opinion, which reasoned that even behavior compelled by status could be criminalized under the Eighth Amendment.[86] During these proceedings, the original panel also emphasized that its holding was a narrow one. As Judge Marsha Berzon clarified in her concurrence in the denial of rehearing en banc, only “municipal ordinances that criminalize sleeping, sitting or lying in all public spaces, when no alternative sleeping space is available, violate the Eighth Amendment.”[87] The Supreme Court denied cert without comment.[88] And so, the Martin panel decision remained binding precedent in the Ninth Circuit.

Three years later, a divided Ninth Circuit panel expanded Martin’s holding in Johnson v. City of Grants Pass.[89] In Grants Pass, a group of homeless individuals in Grants Pass, Oregon, challenged a set of local ordinances that, in relevant essence, prohibited sleeping on sidewalks at any time; prohibited “campsites” (including any bedding, blankets, or pillows) at any time on public property, including parks and benches; and banned cars from public parks overnight.[90] Other ordinances provided for civil fines and, for those who receive two citations within a year, a thirty-day exclusion order from city parks, with order-violators subject to criminal trespass charges.[91] Like the city of Boise, Grants Pass did not have enough shelter beds for its homeless population.[92]

Collectively, then, the Grants Pass laws were marginally less restrictive than the Boise laws challenged in Martin: They would seem to allow a person to sleep overnight on a bench or the ground in a public park, just without any bedding. Moreover, violating the laws did not necessarily or immediately trigger criminal liability. Martin did not, therefore, dictate the outcome in Grants Pass; that panel could have limited Martin to criminal laws prohibiting all overnight presence in public spaces.

The court nonetheless expanded the Martin rule in two ways. First, it extended Martin’s notion of compulsory behavior resulting from the condition of homelessness. Whereas Martin considered only the act of sleeping, the Grants Pass court was presented with laws banning items that, while not always strictly essential for sleep, are certainly considered integral to sleep for people without homes: “rudimentary forms of protection from the elements,” e.g., blankets, sleeping bags, and pillows.[93] The court reasoned that for the involuntarily homeless, putting down one’s bedding on public property at night was nearly as compulsory as sleeping in public.[94] Second, the court broadened the constitutional prohibition on “cruel and unusual punishment” in this context to include civil fines, so long as those fines increase the violator’s vulnerability to criminal punishment and the “civil and criminal punishments are closely intertwined.”[95]

Judge Daniel Collins dissented.[96] He concluded that the holding “effectively requires the City of Grants Pass to allow all but one of its public parks to be used as homeless encampments.”[97] In other words, he characterized the court’s holding as requiring the city to provide residents with a license to its property for the purpose of sleeping—along with one’s bedding and perhaps, other sleeping accessories.

What should we make of Judge Collins’s characterization? There appeared to be nothing in the majority opinion that required a city to allow “all but one of its public parks” to be used as encampments. What the opinion probably did require was the inverse: for the city to allow one of its public spaces to be used for sleeping, including with bedding. But whether it is one park or all-but-one park is not particularly material to the nature of the right. All seemed to agree that a government must provide the involuntarily homeless with a license to use at least one of its public spaces in a way that allows them to sleep in relatively humane conditions. Yet local officials and courts may have seized on this characterization in deciding that cities are prohibited from removing encampments, wherever they may lie.[98]

Grants Pass filed a petition for rehearing en banc (already having had its petition for initial hearing en banc denied). The Ninth Circuit narrowly denied the petition, issuing a slew of dueling opinions for and against the en banc vote and an additional statement from the panel.[99]

C.      Martin’s Legal Legacy

As the above discussion implies, Martin and its predecessors left open several questions for district courts to hash out. Indeed, Grants Pass’s cert petition cited cities’ complaints about the many open questions and the legal uncertainty created thereby. It was these questions and other uncertainties that brought about the New Homelessness as a legal institution, as many risk-averse local officials adopted implausibly broad interpretations to minimize risk of liability.[100] We explore some of these questions in the subsections that follow.

1.       Who May Invoke the Right?

In Martin, the Ninth Circuit stated that the right to stay on public property applied only to those who are “sitting, lying, and sleeping in public” “involuntarily,” that is, those who have “no option of sleeping indoors.”[101] “We . . . hold that an ordinance violates the Eighth Amendment,” the court stated, “insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them.”[102] The court elaborated: “[O]nly that ‘so long as there is a greater number of homeless individuals in [a jurisdiction] than the number of available beds [in shelters],’ the jurisdiction cannot prosecute homeless individuals for ‘involuntarily sitting, lying, and sleeping in public.’”[103] By making the right to remain on public property expressly conditional on “no alternative shelter [being] available to [the person,]” and conditional on the person sitting, lying, or sleeping in public “involuntarily,” the court made clear that only those with no access to any residence or shelter may invoke the right.[104] It further clarified that “individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it,” may not invoke the right.[105]

The rule appeared to create a form of objective test, requiring inquiry into whether an available shelter was “adequate” and whether it was “realistically available.” But this test “prove[d] all but impossible to administer in practice,” as Justice Neil Gorsuch would later observe.[106] Under Martin, it would apparently not have been sufficient to invoke the right that a person had a reasonable temporary shelter available, but subjectively and unreasonably chose not to take advantage of it. This fact required courts—and more directly, city officials and police officers—to make a reasonableness determination on a case-by-case basis. If someone had an uncle nearby with an extra bed, but she had not spoken with him in years, did she have “realistically available” shelter such that she could have been arrested for sleeping in public? What if there were an adequate shelter, but it was across town, and the person had no means of transportation? What if those who had been homeless for years, and, despite having the capacity to do so, had stopped making efforts to obtain access to permanent shelter? Other issues were raised by those who declined to accept shelter because of a lack of accommodation for pets or couples, or for fear of theft or violence. Yet another unresolved issue was the case of the 25–40 percent of the homeless population who suffer from severe mental illness, which may prevent them from taking steps to obtain shelter.

As Judge Milan Smith noted in his dissent from denial of rehearing en banc in Grants Pass,[107] cities struggled with the task of determining who is involuntarily homeless on any given night.[108] Police officers, who determine whether to cite a given individual, are ill-suited to make this determination; they have neither the time nor the information-gathering resources.[109] Indeed, cities and states argued in their Supreme Court amicus briefs supporting Grants Pass’s cert petition that they lacked guidance on how they must carry out censuses of the nightly homeless population in order to determine whether shelter is available, or “how often . . . such counts [must] be performed—nightly, monthly, annually, or at some other interval.”[110]

2.       What Shelter is “Adequate”?

As stated, Martin stressed that its urban camping right did not apply to those who have access to “adequate temporary shelter.”[111] What then, constituted an “adequate” temporary shelter? In Martin, a church-run shelter had space each night in question, but the court held that it was insufficient to relieve the city of the obligation, because it coerced residents into participating in religious-themed activities. [112] The court noted that, in light of its 2007 holding that “coerc[ing]” people into a “religion-based treatment program[]” violates the Establishment Clause,[113] coercing homeless people into a religious-themed shelter was likewise unconstitutional.[114]

Other than having a secular theme, what other characteristics must a shelter possess to be adequate under Martin?[115] The Ninth Circuit stated that a shelter must be indoors, and a subsequent California district court interpreted the holding as such, holding that an airport tarmac “with no roof and no walls, no water and no electricity” was insufficient.[116] But if it had the features of a traditional residence, was there a location requirement? That is, must the shelter be reasonably proximate to the core of the homeless population? Indeed, consistent with past practices, city officials often wish to move homeless people as out of sight as possible. Lastly, under Martin, was the ability to stay in a shelter indefinitely required for the law to pass muster?

Lower courts took responsibility for deciding whether available shelters were “adequate.” A Los Angeles district court held that shelters were adequate only if they met several requirements, including having nursing staff, on-site security, and testing for communicable diseases.[117] The court further held that, without enough such adequate shelters, a city may not enforce its anti-camping laws at all. In light of such strict interpretations, the Supreme Court later noted an amicus brief’s claim that “Martin and its progeny have ‘paralyzed’ communities and prevented them from implementing even policies designed to help the homeless while remaining sensitive to the limits of their resources and the needs of other citizens.”[118]

3.       Does the Right Apply to Other Actions Incidental to Homelessness and Beyond?

Martin’s reasoning might extend to other acts that flow involuntarily from homelessness status, and in at least one case, it did. The Supreme Court majority noted that “[t]here is uncertainty . . . over whether Martin requires cities to tolerate other acts no less ‘attendant [to] survival’ than sleeping, such as starting fires to cook food and ‘public urination [and] defecation.’”[119] Indeed, in denying a motion for a temporary restraining order after public toilets were removed from a public space, one district court relied on Martin in prohibiting the city of Sacramento from citing homeless individuals for public urination or defecation.[120]

One district court similarly applied the Ninth Circuit’s logic to invalidate, as applied to the indigent homeless registered sex-offenders, a statutory scheme requiring sex offenders incarcerated in Illinois to secure a “qualifying host site” before being released from prison.[121] Judge Virginia Kendall held that the scheme, which forced sex offenders to remain incarcerated until they located housing, effectively punished that class of people for their status of being indigent and, ultimately, homeless.[122]

4.       To What Extent Can the Government Create “Designated Spaces”?

Assuming there is no available shelter, to what extent could a government have limited the set of public spaces in which people may sleep or occupy? That is, could a government have prohibited the occupation of all public spaces except for a certain designated space? If so, were there requirements for this space, such as safety or proximity to the core of the homeless population?

As already noted, Martin’s holding appeared limited to cases where a city ordinance barred use of all public spaces. If this were not clear from the decision, recall that panel member Judge Berzon attempted to clarify the court’s intent in her concurrence to the denial of rehearing en banc. She said the only municipal ordinances that are unconstitutional are those “that criminalize sleeping, sitting or lying in all public spaces, when no alternative sleeping space is available.”[123] Thus, it seemed clear that cities could designate some areas as off limits—“an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible,” the court noted[124]—so long as at least one area was available. That is, cities could generally create designated camping areas, as many had done.[125]

Consistent with this language, courts interpreting Martin and Grants Pass generally allowed ordinances to stand so long as they did not prohibit sitting or lying everywhere in the jurisdiction.[126] But one district court considering a Santa Barbara sit-lie ordinance allowed the Eighth Amendment challenge to survive a motion to dismiss, even though the ordinance allowed sleeping everywhere but “downtown areas.”[127] And the city of Phoenix was enjoined from enforcing camping and sleeping ordinances, although it was allowing people to camp in a mass encampment (“the Zone”).[128] Moreover, where plaintiffs challenged city-wide sit-lie ordinances, rather than judicially carving out a designated location in the city for sleeping, courts often enjoined the entire ordinance, thus allowing sleeping everywhere.[129]

And so, the Ninth Circuit’s New Homelessness jurisprudence left several strategies to operationalize its central holding difficult to implement and left important questions unanswered. We show in Part II that this vagueness, combined with logistical enforcement challenges, often caused officials to err on the side of laxity, suspending enforcement of anti-sleeping and anti-camping ordinances entirely, even when not required to do so.

II. The Rise of the New Homelessness

A.      Tracing the Ninth Circuit’s Impact

Law can bring about social change under certain circumstances. In addition to the coercive power of court-imposed mandates, law can be impactful in indirect and non-coercive ways, such as by signaling a moral commitment or coordinating voluntary behavior.[130] But in most cases, a legal rule is most significant when it directly forces behavioral change. Legal historians, political scientists, and law-and-society scholars have offered different insights into the circumstances under which law is most impactful. One insight is that legal change will produce policy and social change when it aligns with political incentives and is supported by a significant fraction of relevant policymakers and empowered stakeholders.[131]

This is how Martin became a primary cause of the late-2010s surge in mass urban camping. Instead of staying in shelters or sleeping on isolated benches and sidewalks, the chronically homeless population increasingly began living in clusters of camps scattered throughout urban areas. As we made clear above, Martin’s and Grants Pass’s urban camping rights are highly qualified. So, how and why did the Ninth Circuit’s cases cause this mass urban camping phenomenon?

We outline a three-step process by which the Martin-Grants Pass jurisprudence led to the shift in the nature of American homelessness. First, after the Martin mandate in 2019, city officials and courts struggled to interpret the decision, and many officials and some trial courts misinterpreted it, giving it an implausibly broad reading. In some cases, this misreading may have been motivated in part by officials’ normative views about criminalizing homelessness. Second, in response to this new permissive regime toward camping in public spaces, large numbers of homeless individuals increasingly shifted to openly camping in parks, sidewalks, and other public spaces. Homeless individuals have long been forced to sleep in parks and other public spaces, but under this new regime, they were now able to do so with legal impunity. Without risk of disruption from law enforcement, a large fraction of the homeless population shifted away from resting in less visible venues like shelters and other more surreptitious private or public spaces. Crucially, the homeless population’s new visibility in public spaces triggered a public backlash. Third, in response to this public backlash, officials restricted camping to designated locations, which, in turn, spawned a new social-political infrastructure around these encampments.

In making the case for this causal chain of events, we use process tracing. This means that we “form multiple hypotheses about what caused an outcome,” the “what” here being either Martin-Grants Pass, or else some other socio-legal-political phenomenon, and the “outcome” here being the surge in urban encampments.[132] We then “identify implications of each hypothesis” and determine which best matches the observable phenomena.[133]

Our primary hypothesis is that it was the Martin decision that largely caused the explosion in urban encampments during the late 2010s and early 2020s. An alternative explanation for this trend is that nonlegal forces were primarily responsible and that it would have occurred even if the Martin decision had never happened. Hinting at this possibility two years prior to Martin, the Seattle University School of Law Homeless Rights Advocacy Project authored a policy brief stating that “due to an acute shortage of affordable housing and even a lack of emergency shelters, homeless encampments not only exist but are also increasing in many cities.”[134] If true, Martin contributed nothing to the rise of urban encampments. We can view this as the “null-hypothesis” against which we evaluate our findings.

Process tracing also involves evaluating evidence implying that one phenomenon of interest (the effect) would not have happened without some other phenomenon (the cause). In our case, urban camping is the effect, while Martin is the cause we investigate. Such evidence can take several forms.

First, one piece of evidence of a law’s impact is that the policymakers cite the legal rule in enacting policy and legal subjects reference the rule in explaining their changed behavior. Of course, citation is neither necessary nor sufficient for causation: A policymaker or subject might act pursuant to a legal rule without mentioning it, or she may make a legal rule the scapegoat for an unpopular policy or action, even if she would have done the same thing regardless. Yet even though citing a law is not dispositive that the law is causing the policy or behavior, it constitutes some evidence of such a causal effect. In our case, we look for statements of local officials citing Martin when announcing encampment-promoting policy changes and for statements of homeless individuals and their advocates who shifted away from shelters and toward public camping.

A second piece of evidence of a law’s policy impact is that policy changes follow shortly in time after the legal change. We look for newly adopted laws, changes in how existing laws are enforced, and whether they are pre- or post-Martin.

Taken together, this means we examine jurisdictions’ policy changes and analyze the statements of public officials and their critics, including homeless-rights advocates and disgruntled constituents. An important source of information for our analysis is the twenty-nine amicus briefs filed as part of Grants Pass’s Supreme Court cert petition and the forty-one briefs filed in the actual case (both for affirmance and reversal), which offer a comprehensive analysis by governments themselves of how the New Homelessness jurisprudence has affected their policies and by nonprofits of how it has affected the homeless community. We also rely on other sources, such as press releases, academic writing, and the advocacy of homelessness-rights organizations.

B.      City Officials and Some Trial Courts Misinterpret Martin

There is substantial evidence that, because of Martin, many cities simply stopped enforcing anti-camping and sit-lie ordinances shortly after the decision. To start, most cities did not (and still do not) have enough shelter beds for their homeless populations, meaning they could have complied with Martin by facilitating more overnight shelter arrangements. For example, in 2024, Los Angeles County reported approximately 75,312 homeless individuals, with only about 22,947 shelter beds available, indicating a significant shortfall in shelter capacity.[135] And Phoenix reported in its Supreme Court cert petition amicus brief that in 2023, there were over thirty-three hundred homeless individuals in the city but “not enough shelter beds to accommodate all the unsheltered downtown, let alone the entire City.”[136] And while San Francisco has dedicated substantial resources to building shelters, it has a reported shortage of almost twenty-seven hundred shelter beds on any given night.[137]

Many cities opted to comply in a different way. In the aftermath of the decision, cities including Portland, Phoenix, Thousand Oaks, Sacramento, Santa Cruz, Aberdeen, Fillmore, Garden Grove, Glendora, Chino, and Murrieta, among others, stopped enforcing their anti-camping ordinances.[138] Los Angeles was already refraining from overnight enforcement of its anti-camping and public dwelling ordinances pursuant to the settlement vacating the prior Ninth Circuit decision in Jones v. City of Los Angeles,[139] in which the Circuit first set out its reasoning.[140] Specifically, the city had agreed to halt enforcement of its ordinances until it had made 1,250 additional units of permanent affordable housing available. Half of these units needed to be near Skid Row, which has long been notorious for visible homelessness. Observers noted that the settlement caused “Skid Row conditions” to emerge “everywhere in the city,” while Skid Row itself also grew.[141] And although the city met its settlement obligations in 2018, that same year, the Martin panel decision resulted in the ordinance’s non-enforcement becoming permanent.[142]

Though not binding outside the Ninth Circuit, the decision appears to have reverberated in cities around the country. The National League of Cities (NLC) represents nineteen thousand cities and local jurisdictions in the United States and often advises local leaders on legal and policy matters.[143] In the months after Martin, it made a simple recommendation to local governments nationwide: stop enforcing camping bans altogether.[144] As the NLC memo puts it, Martin “doesn’t require cities to do anything; instead it requires cities in the Ninth Circuit not do something—arrest people experiencing homelessness for sleeping outside in public spaces when they have nowhere else to go.”[145] Indeed, when Austin, Texas, decided to stop enforcing its anti-camping ordinances in 2019, it cited Martin as a reason, even though the decision obviously did not bind cities within the Fifth Circuit Court of Appeals.[146] And in July 2023, a twenty-four-hour tent encampment spontaneously emerged in Charlottesville, Virginia’s Market Street Park (ground zero for the deadly 2017 “Unite the Right” demonstrations), in violation of park closing hours.[147] The city had no blanket sleeping ban, so park occupants could presumably have slept legally in public spaces nearby, such as around the Main Street pedestrian strip. No binding or on-point authority existed in the Fourth Circuit Court of Appeals (in which Virginia sits) holding that cities may not enforce camping bans.[148] Even so, the rhetoric surrounding the decision was based on Martin’s logic: The city could not send people away if they had nowhere to go.

Local officials’ decisions to stop enforcing anti-camping and related ordinances and to permit encampments were not necessarily foreseeable, and they certainly expanded Martin’s holding. What, then, explains them? One common explanation by local officials is that Martin and Grants Pass caused them significant uncertainty about the law’s requirements, which, in turn, created litigation risks for cities, pushing them to the most risk-averse course. As Boise’s 2019 certiorari petition in Martin put it, the Ninth Circuit’s “novel scheme” would be “resolved through endless litigation in federal courts instead of through local democratic deliberation,” which would leave municipalities “paralyzed, unable or unwilling to act out of fear of substantial liability.”[149] This is not entirely unreasonable: As described in Part I.C. above, the Ninth Circuit jurisprudence left crucial questions unanswered, such as what it meant to be involuntarily homeless, or when shelter is “adequate” or “practically available.”[150] For example, in its amicus brief, Phoenix notes the confusion over whether Martin and Grants Pass merely required “application of a mathematical formula—if the number of homeless individuals exceeds the available shelter beds, public sleeping bans are entirely unenforceable” or whether “the dispositive issue” is “the immediate availability of shelter space for a specific individual on a particular day?”[151] This is not a small matter: It was the difference between having enough shelter beds or not and, thus, enforcing or not enforcing anti-camping ordinances. Other briefs describe similar challenges.[152]

Such legal uncertainty shapes the actions of local officials only if there is a genuine risk of litigation. Even though one may not view the homeless community as a generally legally or politically powerful constituency, a network of nonprofit organizations has adopted strategic litigation as a central strategy to pressure jurisdictions into respecting homeless rights and interests.[153] Key players in this network include the National Homelessness Law Center,[154] the Oregon Law Center,[155] the National Alliance to End Homelessness,[156] Coalition for the Homeless,[157] and the Institute for Constitutional Advocacy and Protection (ICAP).[158] These organizations have long coordinated legal strategies amongst themselves and have played a role in bringing both cases and arguments to state and federal courts.[159] ICAP and the Oregon Law Center were central to the Grants Pass litigation,[160] while the NHLC teamed up with Idaho Legal Aid Services to litigate Martin.[161] Jones and Martin might not have existed without these organizations’ strategies. And in the wake of Martin, these groups were responsible for a wave of litigation seeking to enforce the decision. About thirty suits were filed against municipalities since Martin,[162] while numerous other jurisdictions were threatened with litigation.[163] As with the role of strategic litigation in bringing about “rights revolutions” in other social movements,[164] the role of strategic litigation is a critical element in the rise of the New Homelessness.

The legal uncertainty and litigation risks caused many jurisdictions to simply stop enforcing any camping bans as long as there was a shelter-bed shortfall. As the amicus brief by the municipalities of Southern California explains, out of a fear of litigation, cities settled on a “conservative interpretation”: that they may not enforce “any anti-camping type ordinance against a” homeless individual unless “there are enough realistically available and adequate shelter beds within their jurisdictions for every person experiencing homelessness.”[165] This interpretation seems to have pervaded municipal governments. As an amicus brief by the International Municipal Lawyers Association and others puts it: “As a practical matter, these decisions compel local governments to choose between providing shelter or surrendering public lands to encampments that harm local communities.”[166] One lawyer for the L.A. Alliance for Human Rights summarizes the local response as cities giving up: “They said, ‘[w]e don’t know what we’re allowed to do constitutionally,’” and since “[w]e’re going to get sued no matter what we do . . . we’re just not going to do anything.”[167]

Though Martin did not require ultra-cautious policy responses, some district courts also interpreted Martin similarly broadly, thus reinforcing cities’ risk aversion. For instance, in 2022, a district court enjoined Phoenix from “[e]nforcing [its] [c]amping and [s]leeping [b]ans against individuals who practically c[ould] not obtain shelter as long as there [we]re more unsheltered individuals in Phoenix than there [we]re shelter beds available,” thereby disregarding the restrictions that the Ninth Circuit explicitly allowed.[168] A district court also declined to dismiss an Eighth Amendment challenge to Santa Barbara’s anti-camping ordinance, which applied only to the downtown area and was unenforced between two and seven a.m.[169] Likewise, in 2022, a Northern District of California judge enjoined San Francisco from enforcing its public camping ordinance “as long as there are more homeless individuals in San Francisco than there are shelter beds available,” even though the city claimed to be offering shelter beds to those against whom the ordinances were enforced.[170] Although the court determined that the city had provided insufficient evidence that it had indeed offered shelter to everyone against whom it enforced its ordinances, the court opined in dicta that it is “beyond dispute that homeless San Franciscans have no voluntary ‘option of sleeping indoors,’ and as a practical matter ‘cannot obtain shelter.’”[171] The amicus brief by the Bay Area Council et al. in Grants Pass describes the decision against San Francisco: “Essentially, the district court found an implied requirement that cities maintain and provide sufficient shelter to every homeless individual or allow them to take up permanent residence in public spaces.”[172] Thus, rational concerns about court injunctions partly guided cities’ encampment policies.

But risk averseness is not the only explanation for why local officials misread Martin; a broad reading of Martin also aligned with the progressive values of many city officials and homelessness advocates, who have long argued against criminalizing urban camping.[173] The claim that localities were “criminalizing poverty” did not sit well with many local officials. Much of homelessness rights advocacy has focused on Housing First policies, which prioritize (as the name implies) securing long-term housing before addressing other underlying causes of homelessness, like mental illness and poverty.[174] And although camping ban non-enforcement does little to directly promote long-term housing, many Housing First advocates came to see it as a complementary effort. Consider the NLC’s response to Martin. In a September 2018 publication, the NLC observed that “the spirit of the decision falls in line with a Housing First strategy” since, it argued, criminalizing homelessness hampers efforts to provide permanent housing.[175] Many understood that providing stable, long-term housing on the necessary scale takes time.[176] Moreover, advocates for the homeless population have long noted that many homeless individuals in fact prefer urban camping over shelters, as shelters are widely viewed as unsafe.[177] Additionally, encampments often provide more privacy, allowing residents to be with their romantic partners and pets, and encampments have neither curfews nor most of the other rules that shelters do.[178] For these reasons, many homeless encampment residents like the fact that encampments enable “self-determination” and can more “effectively and equitably respond to the physical, mental, and emotional needs of residents.”[179] Thus, like Housing First policies, unrestricted urban camping policies are primarily concerned with the autonomy and dignity of homeless individuals. Indeed, homeless rights advocates’ initial response to Martin was overwhelmingly positive.[180]

The quick pace at which local officials stopped enforcing local ordinances also revealed that a change in values was already underway. While advocates for the homeless had been arguing that city criminalization ordinances constituted cruel and unusual punishment within the meaning of the Eighth Amendment since at least the 1990s,[181] this argument gained judicial recognition and greater traction with the Ninth Circuit’s 2006 decision in Jones v. City of Los Angeles.[182] Although Jones was vacated pursuant to a settlement agreement,[183] its basic insight continued to resonate, affecting homelessness policy in Los Angeles, the Ninth Circuit’s largest city. Los Angeles stopped enforcing its anti-camping ordinances and inspired some other cities to follow suit.[184] Indeed, some reports suggest that urban camping started to emerge in some cities around this time, albeit not nearly as rapidly as post-Martin.[185] But importantly, by 2018, values had already begun to shift in the wake of the Jones settlement.[186]

But even if values and discourse had already started to shift, it seems unlikely that cities would have voluntarily halted anti-camping ordinance enforcement without Martin. It was easy for political officials to imagine that unrestricted urban camping would encounter some backlash. Then, Martin gave officials political cover to implement the change. The growth of the Zone in Phoenix, Arizona, illustrates this phenomenon. The Zone was a sprawling encampment in downtown Phoenix, which, at its height, included one thousand homeless residents. City officials directly attributed the Zone to Martin, and, indeed, it emerged as city officials stopped enforcing camping bans after the decision.[187] A 2022 public nuisance lawsuit brought against the city by business owners shows how officials pinned the Zone’s emergence on Martin.[188]

The City has never made it a point to allow people to come into an area of town and set up shop and camp. . . [S]ome of the most recent legal decisions that have come down out of the federal courts . . . are . . . definitely giving us some guidance as to what we. . . can and cannot do. . . [T]his is not the City . . . having some choice . . . to allow people to do this. We are constitutionally required based on at least the majority decision in the 9th Circuit . . . .[189]

Others argued that officials in Phoenix used the case to justify what they wanted to do anyway. In its brief to the Supreme Court, the libertarian Goldwater Institute claimed, “the City—like many municipal governments in the Ninth Circuit—actually welcomes the confusion Martin has caused” since “enforcing the law against homeless individuals is hard work, and often politically unpalatable, which creates a strong incentive for local politicians to disclaim their responsibility for such matters.”[190] Martin and Grants Pass, Goldwater claims, “offer them an exceptionally convenient device for doing so.”[191] The brief further notes that the city actively contributed to the growth of the Zone, as it brought resources and services to it and then directed homeless throughout the city to this area.[192] Although when the city began restricting urban camping in 2022, a district court enjoined it from doing so by adopting the broad interpretation of Martin.[193] More generally, as the Johnson et al. respondents’ brief opposing certiorari in Grants Pass put it, “in jurisdictions where encampments exist without interference, that is a policy choice, not a judicial mandate . . . . [C]laims to the contrary are nothing more than an exercise in political expediency.”[194]

The COVID-19 pandemic provided another justification for sustaining the encampments. In early 2020, public health officials generally advised governments against breaking up camps for fear of further spreading the virus,[195] and, with little incentive to disregard it, most officials followed the advice.[196]

*          *          *

These other contributing phenomena, local policymakers sympathetic to the plight of the homeless and the pandemic restrictions from 2020 to 2022, raise the possibility that mass encampments may have emerged in the 2020s even without the Ninth Circuit’s decisions. The evidence reviewed above suggests otherwise or at least suggests that the holdings served as a substantial accelerant. For most jurisdictions, the political costs of halting anti-camping enforcement en masse would have been too high, at least without a legal scapegoat. But by blaming constitutional rules for a city’s inability to prevent the surge of urban camping (even if sometimes without justification), officials have been able to shift responsibility to the courts.

Moreover, the pandemic did not instigate the phenomenon: It merely accentuated it. After all, one of the first public-health responses to COVID-19 was to urge distancing and discourage or prohibit mass gatherings. Had encampments not existed in the spring of 2020, when COVID-19 first struck the U.S. West Coast in earnest, it is hard to imagine that officials would have cited public health as the basis for allowing them for the first time.

C.      Homeless Populations Shift to Camping

These broad interpretations of Martin led more of America’s homeless to reside in public-space encampments throughout the country.[197] Not enforcing anti-camping ordinances in practice meant that localities allowed the homeless to create encampments. This, in turn, made homelessness more visible. That is, even if the unsheltered population had stayed constant (which it did not), the fact that the homeless were no longer moving from bench-to-bench and town-to-town but instead were residing in urban camps made homelessness much more visible to the general public.

Several expert reports suggest an explosion in camps. One report by the National Law Center on Homelessness and Poverty documents nineteen camps in 2007 and 274 in 2016, only 4 percent of which were formally legal under local law.[198] While precise and comparable post-2019 figures have not yet been published, experts have observed an “unprecedented” growth of encampments since 2019, with the size and numbers having multiplied several times.[199]

Total unsheltered homelessness also increased post-Martin, partly due to a preference for encampments. The causes of this increase are many, but one possible reason is that some of the homeless people moved out of shelters and into newly permitted encampments. According to a brief for property owners near Phoenix’s Zone, estimates show “77 percent of homeless individuals would prefer living unsheltered rather than occupying temporary emergency shelters provided by the state.”[200] With officials relaxing or eliminating anti-camping ordinances, this preference apparently translated to people shifting away from shelters and into such newly permitted camps. As one expert report notes: “[F]ewer and fewer people were staying in shelters” in 2020, and “[this] trend . . . continued into 2021.”[201] In Grants Pass, the city shelter reported that its utilization rates had fallen by about 40 percent since the district court’s injunction.[202] And San Francisco reported in a Supreme Court filing that it had recently “seen over half of its offers of shelter and services rejected by unhoused individuals, who often cite[d] the district court’s order [pursuant to Martin] as their justification to permanently occupy and block public sidewalks.”[203] As noted, many homeless individuals view urban camping as safer, more stable, and less restrictive than shelters.

Moreover, like members of most communities, homeless individuals respond to incentives like favorable legal environments. Since 2019, reports suggest that at least some homeless individuals have relocated to cities with laxer camping policies.[204] Indeed, many states and local jurisdictions within the Ninth Circuit reported a significant increase in unsheltered homelessness in the wake of Martin. For example, in Sacramento, the population of homeless individuals grew by 67 percent between 2019 and 2022,[205] with over 70 percent (about sixty-five hundred people) sleeping outside in public spaces.[206] In the area of Nevada surrounding Las Vegas, the number of people without shelter increased by more than 10 percent from 2022 to 2023.[207] In Phoenix, the unsheltered population surged by a whopping 40 percent between 2020 and 2023.[208] Similar trends occurred in Los Angeles[209] and San Diego.[210]

These figures from cities within the Ninth Circuit far exceeded the nationwide growth in the homeless population during the same period. Of the five states whose unsheltered population grew the most between 2015 and 2022, four (California, Washington, Arizona, and Oregon) are within the Ninth Circuit.[211] A notable exception is San Francisco: There, unsheltered homelessness decreased by 15 percent between 2019 and 2022.[212] But at least part of the reason for this decline is the city's distinct response to Martin. San Francisco has made getting the chronically homeless off the street a priority since 2017.[213] As part of this strategy, it has made substantial investments in both Housing First policies and shelters.[214] But notably, when Martin was decided, the city suspended enforcing anti-camping ordinances only briefly, resuming quickly thereafter.[215] Thus, until it was enjoined from enforcing its anti-camping ordinances in 2022, it followed a different path from most other cities in the West.[216]

D.     City Officials Facing Public Backlash Restrict Camps to Designated Locations, Spawning a Social-Political Infrastructure

With these developments, local officials’ responses to Martin soon started to shift. City officials faced a dual reality: growing encampments in desirable public spaces and increasing public backlash.[217] Many therefore abandoned the broad interpretation of Martin in favor of a narrower one: The government could enforce anti-camping bans if it provided some space in the city for camping, that is, “sanctioned encampments.” Sanctioned encampments are legally designated areas, usually on public property, where people without shelter are permitted to stay.[218] Sanctioned encampments offered cities one way to avoid violating Martin, while also controlling the geographic spread of homeless encampments.[219] Indeed, in many cities, sanctioned encampments have gone hand in hand with the reintroduction of anti-camping ordinances throughout the rest of the city.[220]

Consider the case of Sacramento. Like many other cities, Sacramento stopped enforcing its anti-camping ordinances in 2019 after Martin.[221] According to one estimate, the number of people living without shelter in Sacramento increased “from 3,900 in 2019 to 6,664 in 2022,” an increase of close to 80 percent.[222] But in 2022, the city shifted to sanctioned encampments and a gradual reinstatement of camping bans. The main impetus was the Emergency Shelter and Enforcement Act of 2022 (known as Measure O), a Sacramento voter initiative that passed with 52 percent support.[223] Measure O allows the city to enforce anti-camping bans and clear encampments, while at the same time providing for sanctioned encampments.[224] The measure sets out a complex scheme for gradually creating more shelter.[225] As part of Measure O’s implementation, the city has created “Safe Ground” camping sites, where the city provides tents and trailers, serves meals, and offers basic sanitation—all outdoors.[226] Soon after, the city came under pressure to step up this initiative as residents’ dissatisfaction was compounded by a lawsuit filed by the county of Sacramento alleging that the city had failed to protect “public health and safety” in light of the homelessness crisis.[227] Sanctioned encampments, then, became the city’s focus in its attempt to balance demands by constituents with its obligation to care for the homeless.

Or take the example of Portland, Oregon. Portland also stopped enforcing its anti-camping bans in the wake of Martin,[228] but as encampments and public unrest grew,[229] the city likewise transitioned to sanctioned encampment policies.[230] In November 2022, it adopted a plan that would approve six large camping sites, hosting up to 250 people each, while allowing the city to reinstate camping bans elsewhere.[231] Shortly thereafter, it adopted an ordinance allowing camping on public property at night but requiring campsites to be dismantled during the day.[232] Yet city officials reported that, as of late 2023, while the city was working to move people into the sanctioned encampments, the camping ban was not yet being enforced as the city was “terrified of being sued.”[233]

Homeless-rights advocates have mostly decried this narrower interpretation of Martin. Professor Sara Rankin, for example, observes that while Martin initially seemed promising, cities are now adapting “not by curbing punishment for homelessness, but by giving punishment a makeover.”[234] She further notes that “[p]ost-Martin narratives reframe what many progressive urbanites now find distasteful—mass incarceration, internment, and detention of undesirable populations—into practices that accomplish similar outcomes but seem more palatable.”[235] Thus, she observes, “post-Martin cities appear to be adapting—creating a more nuanced framework that still allows the relentless expulsion of unsheltered people.”[236] Homelessness advocates further observe that sanctioned encampments are used as a substitute for permanent housing for the chronically homeless, instead creating “permanent shantytowns.”[237] Others, however, are more positive about sanctioned encampments, seeing them as a necessary complement to Housing First, or, in any case, preferable to shelters for many homeless people (even if less desirable than an unrestricted urban camping right).[238]

But while homelessness advocates push back against sanctioned encampments, the encampments have become a focus for conservative activism. Conservative commentators point out that sanctioned encampments are a cheaper alternative than Housing First initiatives, which they say are ineffective and expensive.[239] Sanctioned encampments, however, are both inexpensive and practical for providing services.[240] In line with this, the conservative Cicero Institute has drafted and promoted model state-level legislation that incentivizes cities to enforce camping bans and makes illegal camping a class C misdemeanor. The model legislation also permits states to create sanctioned encampments.[241] So far, nine states have considered, enacted, or continue to debate the Cicero model bill: Arizona,[242] Florida,[243] Georgia,[244] Iowa,[245] Missouri,[246] Oklahoma,[247] Kentucky,[248] Texas,[249] and Wisconsin.[250] Donald Trump also embraced it during his 2024 presidential campaign,[251] and polling data suggest that the proposal is popular among the general public.[252] Some have noted that these legislative efforts focus on sanctioned encampments in part because they represent a relatively cheap and easy fix to the increasingly unpopular unsanctioned encampments that emerged post-Martin, while also complying with the narrower reading of the Martin ruling.[253]

Ironically, however, while sanctioned encampments have become a key talking point for conservative activists, it is some of the nation’s most progressive cities—such as Sacramento and Portland—that have adopted and implemented them. Thus, if not always in word, there is nonetheless substantial bi-partisan consensus for sanctioned encampments. As some have observed, the “wicked problem” of homelessness does not neatly track partisan divides.[254]

*          *          *

At the beginning of this Part, we posited that Martin was significantly responsible for the social and political developments—homeless encampments, a policy coalescence around designated encampments, and social welfare infrastructure—that followed and characterized the New Homelessness. The timeline of this series of events, the words and actions of policymakers, and other studies of homeless population trends together represent strong evidence of such a phenomenon. A confluence of the groundbreaking Martin holding, risk-averse local officials (many of whom are sympathetic to the principles underlying Martin), and a general public that is intolerant of displays of poverty in their public spaces collectively gave rise to a new mode of being homeless in America—one which is unique in American history and perhaps among wealthy industrialized nations.

III. The Fall of the New Homelessness?

Now that the Supreme Court has overturned the line of cases that gave rise to the New Homelessness, one might wonder whether the sociological phenomenon of the homeless residing in encampments will also disappear. In this Part, we argue that this is not so obvious. Specifically, we argue that four forces will make it hard to undo the New Homelessness: (1) state and local law; (2) public officials’ learning; (3) shifting norms; and (4) the emergence of an encampment infrastructure.

A.      The Supreme Court Reverses the Ninth Circuit

In March 2024, the Supreme Court granted certiorari for City of Grants Pass v. Johnson, and in June 2024, a five-justice majority reversed the Ninth Circuit in an opinion by Justice Gorsuch.[255] First, Justice Gorsuch’s opinion determined that Robinson did not apply in that case. Robinson, he said, was a narrow holding applying only to status: in that case, the status of merely being addicted to drugs.[256] The Court majority—and especially Justice Clarence Thomas in his concurrence—seemed skeptical of that narrow holding, doubting that the Eighth Amendment should concern what can be criminalized (as opposed to what punishments are permitted).[257] Regardless, the Court left Robinson’s fate for another day.[258] Thus, if the Eighth Amendment were to apply here, it must be extended from prohibiting only status crimes, such as the status of homelessness, to prohibiting crimes involving involuntary conduct that flows from status, such as sleeping outdoors.

The Court declined to do so. It noted that it had “already rejected that view” in Powell, when a four-justice plurality declined to extend Robinson to invalidate a public-intoxication conviction.[259] And the Grants Pass Court said that nothing in the Eighth Amendment authorizes such an extension in 2024. (The Court noted that other constitutional and legal protections—such as due process or a state-law necessity defense—may be better suited to protect people from prosecution for acts they cannot avoid.)[260] But as to the Eighth Amendment, Justice Gorsuch noted that Justice Marshall himself warned in Powell against extending Robinson, seeing no limiting principle to prevent the Court becoming “the ultimate arbiter of the standards of criminal responsibility, in diverse areas of the criminal law, throughout the country.”[261] Instead, Justice Gorsuch wrote, “[Q]uestions about whether an individual who has committed a proscribed act with the requisite mental state should be ‘reliev[ed of] responsibility,’ due to a lack of ‘moral culpability,’ are generally best resolved by the people and their elected representatives.”[262]

The Court majority reasoned that the Ninth Circuit ignored these principles in deciding Jones, Martin, and Grants Pass. Doing so had predictably bad results, it said: “Martin exemplifies much of what can go wrong when courts try to resolve matters like those unmoored from any secure guidance in the Constitution.”[263]

Those bad effects took several forms, Justice Gorsuch wrote, creating a poorly defined standard that was unworkable in practice in at least three ways, creating uncertainty for courts and local officials implementing the rules.[264] First, how is involuntarily homeless defined, and how can law enforcement personnel be expected to apply it?[265] The “more homeless than shelter beds” standard is not workable, as cities cannot know how many homeless individuals there are on any night. Second, courts struggled to define “adequate” and “available” shelter. For example, is a Christian-themed shelter (for non-Christians) or a no-smoking shelter (for smokers) disqualifying?[266] Finally, what are “‘life-sustaining act[s]’ that flow necessarily from homelessness”?[267] Fires? Tents? Gorsuch posed these questions.[268]

Justice Sonia Sotomayor dissented, joined by Justice Elena Kagan and Justice Ketanji Brown Jackson. Justice Sotomayor challenged the majority’s contention that affirming the decision below would require extending Robinson. This is so, she argued, because “Grants Pass’s Ordinances criminalize,” not just behavior concomitant to homelessness, but “being homeless” itself.[269] “The status of being homeless (lacking available shelter),” she said, “is defined by the very behavior singled out for punishment (sleeping outside).”[270] Indeed, “as enforced,” the ordinances “are intended to criminalize being homeless,”[271] Justice Sotomayor argued. The Grants Pass ordinances “define [a] ‘campsite’ as ‘any place where bedding, sleeping bag, or other material used for bedding purposes’ is placed ‘for the purposes of maintaining a temporary place to live.’”[272] By definition, only people without a regular place to live, that is, homeless people, Justice Sotomayor reasoned, would set up a campsite “for the purpose of maintaining a temporary place to live.”[273] Thus, she argued, both the intent and the plain language of the law target the status of homelessness, making the law unconstitutional under Robinson.[274]

B.      Why the New Homelessness Will Persist Despite the Supreme Court’s Decision

Shortly after the Supreme Court’s decision in the summer of 2024, California Governor Gavin Newsom called on California government officials to start dismantling homeless encampments. He told local officials that “[t]here are simply no more excuses” for allowing the encampments to remain.[275] To give these words force, he issued an executive order requiring certain state agencies to start clearing encampments[276] and threatened to withhold state funds from local governments that failed to make progress toward clearing encampments.[277] In so doing, Governor Newsom, a potential 2028 presidential candidate, signaled that he heard the public disaffection over encampments in California cities. In response, San Francisco Mayor London Breed ordered a “very aggressive” cleanup of the city’s encampments, with potential “criminal penalties for [those] refusing to disperse.”[278] At first blush, these developments might portend the New Homelessness’s death knell: a return to the 2018 status quo ante. We argue that they do not.

The reason is that local responses to the Court’s recent decision vary widely, with many cities continuing to allow encampments despite state-level pushback. Despite Governor Newsom’s strong language, he does not have the power to force local officials to clear encampments, and indeed, many cities decided not to. Following the Supreme Court's June 2024 decision, Los Angeles Mayor Karen Bass, an advocate for transitional housing initiatives,[279] stated that the ruling “must not be used as an excuse . . . to arrest [our] way out of this problem or hide the homelessness crisis in neighboring cities or in jail.”[280] Similarly, the Los Angeles County Board of Supervisors unanimously opposed Governor Newsom’s order, reaffirming their “care first, jails last” approach.[281]

Indeed, San Francisco’s acquiescence may be an outlier. The city was in a unique position among Ninth Circuit cities: It had been enjoined from enforcing any of its anti-camping ordinances, meaning residents had completely unrestricted rights to urban camping.[282] In the weeks following the Grants Pass decision, the Ninth Circuit vacated the most important portion of this injunction.[283] San Francisco then became free to do what other cities had already been doing: regulate urban camping.

San Francisco’s and Los Angeles’s contrasting responses show that local responses to the shift in federal law will not be uniform. This is true both in California and across the country. And we expect that many, if not most, cities will continue to permit and regulate homelessness encampments to some extent. Even though federal law has changed, four forces will make it hard to undo the New Homelessness: (1) state and local law, (2) public officials’ learning, (3) shifting norms, and (4) the emergence of an encampment infrastructure.

1.       State and Local Law

First, state and local laws limit the reach of the Supreme Court’s Grants Pass decision, making the New Homelessness’ persistence likelier. To illustrate, after the Supreme Court announced its decision, Portland, Oregon Mayor Ted Wheeler declared that the decision would “have little effect on Oregon’s largest city,” since it was now Oregon rather than federal law that “continues to control and limit what Oregon cities can and can’t do.”[284] Indeed, Justice Gorsuch singles out the Oregon legislation as an example of legislation that will remain.[285] As mentioned, several states with conservative electorates and Republican-dominated legislatures have enacted laws promoting sanctioned encampments at the local level. But progressive states and cities have also enacted legislation codifying sanctioned encampments. In 2021, the Oregon Legislative Assembly enacted House Bill 3115, the sole purpose of which was to codify Martin’s central holding and to decriminalize homelessness.[286] As the bill’s sponsor, Oregon House Speaker Tina Kotek, put it, “[i]f you can’t justify moving folks along because there’s not enough shelter, then you have to have a different standard for how you treat them, and from my perspective, that is more humanely.”[287] The bill, however, does not codify an unrestricted urban camping right. Instead, it allows local jurisdictions to impose geographic and temporal restrictions on camping that are “objectively reasonable.”[288] While the “objectively reasonable” standard is not one created by the Ninth Circuit and still needs to be fleshed out, it appears that the progressive legislation envisions sanctioned encampments, much like the conservative state-level legislation.[289]

Just as Dobbs spurred mass state legislative action to bolster abortion rights, we can expect a similar reaction from states in dealing with homelessness in the wake of Grants Pass.[290] Indeed, as of late 2024, state-level legislation had been debated in Washington[291] and Michigan.[292] Other states, including Colorado[293] and Oregon,[294] may reintroduce previously lapsed legislation that protected some homelessness rights (the so-called right-to-rest laws). In other states, including New Jersey,[295] we may see comprehensive laws like the Homeless Bill of Rights enacted last year in New York.[296] Shortly after the Supreme Court’s Grants Pass decision, Democratic lawmakers in Pennsylvania announced a plan to enact legislation barring the criminalization of homelessness.[297] Such legislation would of course remain in force despite the Supreme Court’s decision. Moreover, as of 2024, nine Republican-led states had considered or enacted the Cicero model bill.

We expect that any future legislative efforts will broadly reflect three aforementioned insights: (1) Sanctioned encampments are a valuable policy response; (2) criminalization of homelessness when people have nowhere to go is an undesirable response; and (3) many now expect urban camping to be an option for those without a residence.

2.       Public Officials’ Learning

In the years following Martin, local officials discovered that creating sanctioned encampments may be among the most viable of the many imperfect strategies for addressing homelessness. What was once unthinkable—facilitating public homeless encampments—became practically and politically plausible. Although progressive local officials often cite Housing First as the best solution to homelessness,[298] such strategies have proven challenging to implement, especially in urban areas with high real estate prices and limited space.[299] Many used to think that the second-best alternative was homeless shelters.[300] Shelters began to emerge as a policy response to the growing homeless population in the late nineteenth and early twentieth centuries, particularly during periods of economic hardship like the Great Depression, and they continue to be a central strategy in some cities, including New York City.[301] But in the wake of Martin, city officials saw firsthand how many homeless people preferred self-organized encampments to shelters.[302] Indeed, sanctioned encampments respond to two of the most pressing concerns that homeless respondents express in surveys: the lack of safety in traditional shelters and the bureaucracy associated with accessing them.[303] Local officials further learned that, while the general population has little patience for unrestricted urban camping, it is more willing to accept sanctioned, regulated encampments.[304] Sanctioned encampments, therefore, might be among the best available options. Martin thus spurred a learning process, providing important information on the value of different policy responses to homelessness.

This court-induced learning was not limited to progressive circles. The Cicero Institute continues to recommend that states invest in “sanctioned, policed encampments.”[305] In contrast with progressive homelessness advocates, Cicero recommends sanctioned encampments over Housing First, which it deems “expensive and ineffective.”[306] Conservatives have instead lobbied for a model of civil commitment, making it easier to force care on people with mental health issues.[307]

But even if progressive and conservative visions differ, sanctioned encampments appear to be an acceptable compromise to both. Neither entirely minimalist nor maximalist, sanctioned encampments provide some immediate benefits to homeless individuals without requiring political leaders to acquiesce in a complex, ongoing positive social policy initiative. Sanctioned encampments also accommodate many of the preferences of a diverse set of stakeholders, while mitigating the predicament facing the country’s involuntarily homeless population. Sanctioned encampments are nobody’s idea of an ideal solution, but they seem to be the Condorcet winner among all other options.[308]

3.       Shifting Norms

The discourse surrounding homelessness has also shifted in the last decade under the influence of Martin and its progeny, such that few want a return to the pre-Martin practice of effectively criminalizing homelessness. Even as federal constitutional law has changed, Martin’s basic insight, that it is unjust to punish people for being in a place when they have no lawful alternative, will continue to resonate broadly as a moral matter.[309] To illustrate, even though Los Angeles Mayor Karen Bass enforced encampment sweeps all over the city, she also noted that “[s]trategies that just move people along from one neighborhood to the next or give citations instead of housing do not work.”[310] Mayor Bass’s statement offers a striking contrast with cities’ expressed positions a decade before, which often demanded the power to do just that.[311] The conservative Cicero Institute agrees that people should be neither imprisoned nor abandoned; rather, they should receive mental health care or treatment for substance addiction—by civil commitment, if necessary.[312] Again, while there is much disagreement on the optimal solution to the homelessness crisis, there is a general consensus that it is unjust or ineffective to criminally punish people who have no lawful alternative but to occupy public spaces.

Sanctioned encampments represent a pragmatic consensus that allows cities to avoid being seen as criminalizing homelessness: While homeless people may not reside in any public space they choose, they have at least one place to be. And in most localities, sanctioned encampments are available in addition to indoor shelter, which, as discussed, many homeless people do not prefer.[313] Sanctioned encampments thus not only offer a feasible solution, but they also align with the shifting discourse around homelessness.[314] The Supreme Court changed federal constitutional law, but it will not so easily reverse a decade of shifting norms.

Perhaps the most striking example of evolving law and norms occurred in the city at the heart of Grants Pass v. Johnson. In August 2024, the Grants Pass City Council voted unanimously to designate four areas within the city for camping, banning camping in the rest of the city’s public areas.[315] Campers are limited to just a few consecutive nights at each site, but they are permitted to “cycle through” the four sites indefinitely. Such a policy would have passed muster under a plain reading of the Ninth Circuit’s Grants Pass opinion, but the city had been mired in an injunction for the duration of the litigation, which prevented it from creating dedicated campsites. Additionally, under the 2021 Oregon state law, the city was probably not permitted to reinstate its pre-lawsuit, city-wide ban on camping. Whether due to changing norms or strong-arming from the legislature, the city took a different path, opting for sanctioned encampments.

4.       Infrastructure

Fourth and finally, in the late 2010s and early 2020s, substantial new local resources were devoted to sanctioned encampments,[316] including sanitation, medical services, mental health services, outreach programs, and substance-abuse treatment.[317] In 2022, the city of Portland alone allocated $27 million to create six designated encampment areas.[318] This infrastructure has led both homeless communities and service providers to expect encampments to be a legitimate residence option for homeless people for the foreseeable future. Upsetting these expectations would be politically difficult.

Studies on the stickiness of law and policy support this insight. Political scientist Paul Pierson has argued that legal changes often endure over time because they create policy feedback loops.[319] For example, the New Deal Era’s Social Security expansion helped to create a powerful, multi-partisan constituency of beneficiaries, which has consistently rebuffed reduction efforts.[320] Similarly, the 2010 Affordable Care Act (ACA) extended healthcare coverage to millions of Americans. Despite multiple attempts to repeal it, the ACA has become embedded in the American healthcare system, sustained in part by the fact that millions of voters rely on it.[321]

In a similar vein, the initial investments in sanctioned encampments generate administrative and logistical structures, which then create inertia that makes policy reversal more challenging. Additionally, these investments give community organizations—including local nonprofits, service providers, and advocacy groups—vested interests in maintaining the funding and resources allocated to these sites. Over time, these stakeholders may lobby for the encampments’ preservation (and even expansion), further embedding the policy in local governance structures despite potential opposition. While expenditures on encampments are tiny compared with those dedicated to health insurance or Social Security, and the homeless community is not nearly as powerful an electoral constituency as the beneficiaries of those larger social programs, sanctioned encampments will nonetheless be politically sticky for the reasons stated above.

*          *          *

Taken together, four forces—state and local law, public officials’ learning, shifting norms, and infrastructure—make it likely that the New Homelessness will remain even though the law has changed. If so, tent cities will remain a fixture of American urban landscapes, and sanctioned encampments will be an enduring legacy of the Ninth Circuit’s jurisprudence. Notably, in the wake of Martin, a Harvard Law Review note observed that “[t]he case’s most significant impact . . . was to limit cities’ ability to push homeless people out[] by allowing them to stay somewhere within [city] boundaries.”[322] The author did not foresee that the decision’s impact would come to be more profound. But after all the dust has settled and the case itself has been overturned, this does appear to be an accurate description of its legacy.

Conclusion

We have documented how a line of Ninth Circuit case law changed the face of American homelessness, catalyzing a movement toward mass urban camping and, eventually, government-sanctioned encampments. We predict that this court-induced learning process will continue to shape the response to homelessness, despite the Supreme Court’s 2024 Grants Pass decision. Sanctioned encampments, we argue, are here to stay.

We end by raising an important question for further study: What are the implications of removing the federal right that spawned the urban encampment phenomenon? On one hand, if encampments continue to be a fixture of urban landscapes, many homeless residents’ day-to-day realities might not change meaningfully. But on the other hand, the fact that these encampments are no longer an entitlement might have consequences.

We suspect that these potential consequences may be twofold. First, without an underlying federal constitutional right, homeless individuals may find it harder to advocate for themselves if they are denied access to encampments and related services. Literature in the law-and-society tradition has shown that the existence of rights can create a “rights consciousness,” which empowers people to advocate for their needs and wants, both legally and politically.[323] Such empowerment can create a virtuous cycle, in which newly empowered groups pursue new strategies for obtaining additional rights. The fact that some people who were told to move off sidewalks reportedly responded by citing Martin suggests that a rights consciousness has indeed emerged in homeless communities. The Supreme Court’s Grants Pass decision removed this federal right, possibly disempowering homeless communities from further self-advocacy.

Second, Grants Pass may have the add-on effect of restricting access to camps and camp-related services. When homeless communities are stripped of ways to advocate for themselves, it will likely become easier to deny them that to which they were previously entitled.

It is too early to fully explore these implications. But an important question for future research and advocacy is whether it is either possible or desirable to bring back urban camping, not just as a matter of local discretionary policy but as a matter of legal right. Considering the coalition of homelessness advocates that were instrumental in Martin, we suspect that those groups will persist in their efforts to restore the legal right to urban camping. Advocacy groups have lobbied state legislatures against enacting additional criminal laws targeting homeless people. For instance, the National Homelessness Law Center developed the Gloria Johnson Act,[324] a model bill that prohibits civil and criminal penalties against homeless individuals without alternative shelter who camp in public spaces; such a rule comports with Oregon’s reasonableness standard for assessing cities’ anti-homelessness ordinances.[325] Advocates might also push for state constitutional amendments codifying rights, especially in states where amendment via public referendum is available. California, for example, has considered a constitutional amendment to recognize a right to housing, with a bill initially proposed in 2023.[326] In the 2024 presidential elections, several states had ballot initiatives addressing affordable housing and homelessness. For example, Rhode Island passed a $120 million bond for housing,[327] while North Carolina cities allocated $135 million collectively.[328] Maryland, New Mexico, and California cities, including San Francisco, also approved bonds for affordable housing and shelters.[329] Missouri voters established a hotel tax for affordable housing,[330] and Michigan’s Ingham County increased property taxes for its Housing Trust Fund.[331]

Courts could also be sympathetic partners in pursuing additional rights for their homeless residents. Many state constitutions contain obligations to care for indigent communities.[332] Take New York, where the constitution requires providing for “[t]he aid, care and support of the needy.”[333] In 1979, in response to a class action lawsuit filed by Robert Callahan and other homeless men, the New York County Supreme Court held that the New York state constitution requires the city to provide some type of shelter to homeless residents.[334] The Callahan decree initiated several decades of New York courts micro-managing New York City’s shelter policies. Notably, the New York constitution does not explicitly mention shelter, but merely an obligation to care for the needy. We imagine the same provision might be read to grant a right to urban camping and that some state courts might be persuaded to find an urban camping right in the social rights component of state constitutions.

The fight for the right of homeless people to reside in public spaces, then, is far from over.

Copyright © 2025 Mila Versteeg*, Kevin L. Cope** & Gaurav Mukherjee***

                *     Henry L. and Grace Doherty Charitable Foundation Professor of Law, University of Virginia School of Law.

             **     Associate Professor of Law and Public Policy, University of Virginia School of Law.

                ***       Visiting Assistant Professor of Law, University of Connecticut School of Law. We thank Cale Jaffe, Katharine Young, and Emily Zackin for helpful comments and suggestions.

          [1].     Anatole France, The Red Lily 95 (Winifred Stephens trans., John Lane Co. 1910).

          [2].     Jeff Merrick, How do I Hate Thee? Let Me Count the Ways, https://olis.oregonlegislature.gov/liz/2023R1/Downloads/PublicTestimonyDocument/96412 [https://perma.cc/B3M2-JRNX] (part of submission opposing “Right to Rest” bill pending before the Oregon legislature).

          [3].     Tanya de Sousa, Alyssa Andrichik, Ed Prestera, Katherine Rush, Colette Tano & Micaiah Wheeler, U.S. Dep’t of Hous. & Urb. Dev., The 2023 Annual Homelessness Assessment Report (AHAR) to Congress—Part 1: Point-in-Time Estimates of Homelessness 16 (2023) [hereinafter AHAR 2023], https://www.huduser.gov/portal/sites/default/files/pdf/2023-AHAR-Part-1.pdf [https://perma.cc/U463-HNDR]. A note about the terms used in this Article: In referring to people without regular access to a residence, we acknowledge that there is no consensus on the most appropriate set of terminology with preferences routinely shifting. See Kayla Robbins, Homeless, Houseless, Unhoused, or Unsheltered: Which Term is Right?, Invisible People (Aug. 25, 2022), https://invisiblepeople.tv/homeless-houseless-unhoused-or-unsheltered-which-term-is-right/ [https://perma.cc/F8TG-FVPA]. But we opt to follow the longstanding, prevailing practices of federal courts and federal regulations. We therefore use the term “homeless” to denote an individual “who lacks a fixed, regular, and adequate nighttime residence, meaning: . . . a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings,” such as a park or automobile. 24 C.F.R. § 582.5 (2024). At any given time, a homeless individual is either “sheltered” (residing “[i]n an emergency shelter” or “transitional housing”) or “unsheltered” (residing “[i]n a place not meant for human habitation”). U.S. Dep’t of Hous. & Urb. Dev., Off. of Cmty. Plan. & Dev., A Guide to Counting Unsheltered Homeless People 4 (2004), https://www.hudexchange.info/sites/onecpd/assets/File/Guide-for-Counting-Unsheltered-Homeless-Persons.pdf [https://perma.cc/K9BB-ZY9E] (emphasis omitted). Many, but not all, homeless individuals are “chronically” homeless. See 42 U.S.C. § 11360(2) (defining “chronically homeless” as an “individual or family” that “(i) is homeless and lives or resides in a place not meant for human habitation, a safe haven, or in an emergency shelter; (ii) has been homeless and living or residing in a place not meant for human habitation, a safe haven, or in an emergency shelter continuously for at least 1 year or on at least 4 separate occasions in the last 3 years; and (iii) has an adult head of household (or a minor head of household if no adult is present in the household) with a diagnosable substance use disorder, serious mental illness, developmental disability (as defined in section [102 of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (42 U.S.C. § 15002)]), post traumatic stress disorder, cognitive impairments resulting from a brain injury, or chronic physical illness or disability, including the co-occurrence of 2 or more of those conditions”).

          [4].     France, supra note 1.

          [5].     See, e.g., Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983) (“The men who wrote the Bill of Rights were not concerned that [the federal] government might do too little for the people but that it might do too much to them.”).

          [6].     Dandridge v. Williams, 397 U.S. 471 (1970).

          [7].     San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).

          [8].     Harris v. McRae, 448 U.S. 297 (1980).

          [9].     Lindsey v. Normet, 405 U.S. 56 (1972).

        [10].     Brief of Int’l Mun. Laws. Ass’n., Nat’l League of Cities, Nat’l Ass’n of Cntys., North Dakota League of Cities, Cities of Albuquerque, Anchorage, Colorado Springs, Henderson, Las Vegas, Milwaukee, Providence, Redondo Beach, Saint Paul, San Diego, Seattle, Spokane, and Tacoma, The City and Cnty. of Honolulu, and the Cnty. of San Bernardino as Amici Curiae in Support of Petitioner at 8, City of Grants Pass v. Johnson, 603 U.S. 520 (2024) (mem.) (No. 23-175) [hereinafter IMLA Grants Pass Amicus Brief] (“42 percent of the Nation’s homeless [population] reside[s] in the nine states in the Ninth Circuit.”); see also AHAR 2023, supra note 3, at 16 (reporting that 49 percent of the nation’s unsheltered population resides in California); Barry J. McMillion, Legislative Proposals to Change the Geographic Boundaries of the U.S. Court of Appeals for the Ninth Circuit: Historical Overview and Analysis, Cong. Rsch. Serv., R48242 3 (2024), https://crsreports.congress.gov/product/pdf/R/R48242 [https://perma.cc/2QFB-7G3U].

        [11].     U.S. Const. amend. VIII.

        [12].     Martin v. City of Boise, 902 F.3d 1031, 1035 (9th Cir. 2018), amended by 920 F.3d 584 (9th Cir. 2019). The relevant ordinances usually seek to prohibit urban camping. As one commentator observes, “Though there are subtle variations between cities, urban camping ordinances typically prohibit sleeping, preparing to sleep, or storing belongings on public property.” See Ben A. McJunkin, The Negative Right to Shelter, 111 Calif. L. Rev. 127, 130 (2023).

        [13].     Johnson v. City of Grants Pass, 72 F.4th 868, 890–91 (9th Cir. 2022).

        [14].     Homelessness and Anti-Camping Ordinance Litigation Post-Martin v. City of Boise, Westlaw, https://1.next.westlaw.com (search: ““Martin v. City of Boise” & (“anti-camping ordinances” OR “homelessness”) & (lawsuit OR litigation) & DA (aft 2018)”; filter by jurisdiction to include both state and federal courts) (last visited Feb. 11, 2025).

        [15].     Starting in the 1980s, the term “new homelessness” was sometimes used in the sociology literature to refer to the homelessness spike that began early that decade in North America during a relatively prosperous period. See generally, e.g., Anne B. Shlay & Peter H. Rossi, Social Science Research and Contemporary Studies of Homelessness, 18 Ann. Rev. Socio. 129, 131 (1992) (noting the changing demographic affiliation of, and research into the “new homeless” from the 1980s onward); Brendan O’Flaherty, Making Room: The Economics of Homelessness (1996); Barrett A. Lee, Kimberly A. Tyler & James D. Wright, The New Homelessness Revisited, 36 Ann. Rev. Socio. 501 (2010). As elaborated below, our definition is related but distinct.

        [16].     Lauren Dunton, Jill Khadduri, Kimberly Burnett, Nichole Fiore & Will Yetvin, U.S. Dep’t of Hous. & Urb. Dev., Exploring Homelessness Among People Living in Encampments and Associated Cost: City Approaches to Encampments and What They Cost 4 (2020), https://www.huduser.gov/portal/sites/default/files/pdf/Exploring-Homelessness-Among-People.pdf [https://perma.cc/EQR7-84DG] (observing that “[t]he term encampment is widely used . . . to describe groups of people living in tents or other temporary structures in public spaces in cities across the country” but that there is no fixed definition, though “several concepts are often included: the presence of structures; the continuity of location; and the permanency of people staying there”).

        [17].     Nat’l L. Ctr. on Homelessness & Poverty, Tent City, USA: The Growth of America’s Homeless Encampments and How Communities are Responding 7 (2017), https://homelesslaw.org/wp-content/uploads/2018/10/Tent_City_USA_2017.pdf [https://perma.cc/4REV-NYGQ] (reporting the emergence of encampments); Dunton et al., supra note 16, at ES1–ES2 (observing an unprecedented number of encampments in 2019, higher than in any year before, and noticing the impact of the Ninth Circuit jurisprudence); see also Rachel M. Cohen, The Little-Noticed Court Decision that Changed Homelessness in America, Vox (June 12, 2023), https://www.vox.com/23748522/tent-encampments-martin-boise-homelessness-housing [https://perma.cc/4CUX-5229] (noting how Martin was pivotal in shaping how cities responded to tent encampments); Greg Kim, One Court Case Changed How West Coast Cities Deal with Homeless Encampments, Seattle Times (Oct. 15, 2023), https://www.seattletimes.com/seattle-news/homeless/one-court-case-changed-how-west-coast-cities-deal-with-homeless-encampments/ [https://perma.cc/X9AE-NAAM] (noting how public officials stated that Martin was “hamstringing” their ability to address the crisis of homeless encampments).

        [18].     Martin v. City of Boise, 920 F.3d 584, 617 (9th Cir. 2019); see also id. at 589 (Berzon, J., concurring in the denial of rehearing en banc) (“[O]nly . . . municipal ordinances that criminalize sleeping, sitting or lying in all public spaces, when no alternative sleeping space is available, violate the Eighth Amendment.”).

        [19].     See infra Part II.B.

        [20].     See id.

        [21].     On the importance of Housing First and its nature, see generally Lavena Staten, Homeless Rts. Advoc. Project, Penny Wise but Pound Foolish: How Permanent Supportive Housing Can Prevent a World of Hurt (Sara K. Rankin ed., 2019), https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1016&context=hrap [https://perma.cc/8HRP-X2AX] (discussing the feasibility and benefits of permanent supportive housing and other policy alternatives to the homelessness crisis); Supreme Court Lets Martin v. Boise Stand: Homeless Persons Cannot Be Punished for Sleeping in Absence of Alternatives, Nat’l Homelessness L. Ctr. (Dec. 16, 2019), https://homelesslaw.org/supreme-court-martin-v-boise/ [https://perma.cc/A8N7-E976] (noting that the right established in Martin should be seen as an imperfect alternative to Housing First strategies); Justin Patrick Jones, Khalia Parish, Peter Radu, Taylor Smiley & Jenny van der Heyde, Goldman Sch. Pub. Pol'y, Univ. Of Cal., Berkeley, A Place to Be: Alternatives to Unsanctioned Homeless Encampments 86 (May 1, 2015), https://gspp.berkeley.edu/assets/uploads/page/15-13160_-_Goldman_Student_Report_-_Final_Draft_-_May_11_2015_reduced_size.pdf.pdf [https://perma.cc/WKR9-TNGB] (“[S]anctioned encampments provide one potential short-term solution that might be implemented while longer-term solutions are being discussed.”).

        [22].     See, e.g., Nicholas Olson & Bernadette (Bernie) Pauly, ‘Forced to Become a Community’: Encampment Residents’ Perspectives on Systemic Failures, Precarity, and Constrained Choice, 3 Int’l. J. Homelessness 124, 128, 132 (2023); Nat’l Health Care for the Homeless Council, Impact of Encampment Sweeps on People Experiencing Homelessness 1–2 (2022), https://nhchc.org/wp-content/uploads/2022/12/NHCHC-encampment-sweeps-issue-brief-12-22.pdf [https://perma.cc/ZFB8-UUKR]; McJunkin, supra note 12, at 163–74, 185–86 (arguing in favor of a right to urban camping over a right to a traditional shelter); infra notes 165–66 and accompanying text.

        [23].     CDC Advises Against Clearing Homeless Encampments if Alternate Housing Is Not Available During Coronavirus Outbreak, Nat’l Low Income Hous. Coal. (Mar. 30, 2020), https://nlihc.org/resource/cdc-advises-against-clearing-homeless-encampments-if-alternate-housing-not-available [https://perma.cc/2HC5-DQZ5].

        [24].     AHAR 2023, supra note 3, at 11 (reporting a 2.5 percent increase in homelessness overall between 2010 and 2023, but a 9.9 percent increase in the unsheltered population, along with a 1.7 percent decrease in the sheltered population); see also McJunkin, supra note 12, at 133 (reporting a “rapid[] increas[e]” in “[u]nsheltered homelessness” and observing that “[i]t is up more than 30 percent over the past five years, while sheltered homelessness decreased almost 10 percent during the same period”).

        [25].     See infra notes 191–198 and accompanying text.

        [26].     See infra notes 174–181 and accompanying text. The camp was closed in November 2023. See Helen Rummel, Phoenix’s Largest Homeless Encampment, ‘The Zone,’ Is Now Gone, Ariz. Republic (Nov. 2, 2023), https://www.azcentral.com/story/news/local/phoenix/2023/11/02/phoenixs-largest-homeless-encampment-the-zone-is-now-gone/71415236007/ [https://perma.cc/PRV4-TMMT].

        [27].     See infra notes 128–130 and accompanying text (detailing the New Homelessness in Los Angeles).

        [28].     See, e.g., Shawn Hubler, In Rare Alliance, Democrats and Republicans Seek Legal Power to Clear Homeless Camps, N.Y. Times (Sept. 27, 2023), https://www.nytimes.com/2023/09/27/us/in-rare-alliance-democrats-and-republicans-seek-legal-power-to-clear-homeless-camps.html [https://perma.cc/LA5Z-U2P5].

        [29].     Merrick, supra note 2.

        [30].     Sara K. Rankin, Hiding Homelessness: The Transcarceration of Homelessness, 109 Calif. L. Rev. 559, 598–602 (2019) (describing this third stage and arguing against the rise of this phenomenon).

        [31].     See infra Part II.C.

        [32].     See infra notes 226–228 and accompanying text.

        [33].     See infra notes 229–241 and accompanying text.

[34].    Comprehensive national data on the prevalence and impact of sanctioned homeless encampments remains limited, but see Nat’l L. Ctr. on Homelessness & Poverty, Tent City, USA: The Growth of America’s Homeless Encampments and how Communities are Responding 7–15 (2017), https://homelesslaw.org [https://perma.cc/LK3D-YQLY] (documenting the rise of sanctioned encampments as a response to homelessness but noting the difficulty in tracking their scope and effectiveness); Kirk Siegler, Why Some Cities Are Operating Legal Homeless Camps—Even in the Dead of Winter, NPR (Jan. 7, 2022), https://www.npr.org/2022/01/07/1070966346/why-some-cities-are-operating-legal-homeless-camps-even-in-the-dead-of-winter [https://perma.cc/7ZP3-U84N] (discussing sanctioned encampments in cities like Missoula, Mont., and Tacoma, Wash., while noting uncertainty about their long-term impact); Tomas Hoppough, Why Cities Are Turning to Sanctioned Homeless Encampments, DENVER7 (Jan. 8, 2022), https://www.denver7.com/news/national/why-cities-are-turning-to-sanctioned-homeless-encampments [https://perma.cc/UT4X-PWM6] (highlighting the expansion of sanctioned encampments in cities like Seattle and Denver but acknowledging gaps in data assessing their effectiveness).

[35].    See City of Grants Pass v. Johnson, 603 U.S. 520 (2024).

        [36].     See id. at 542–47.

        [37].     See generally, e.g., Marah A. Curtis, Hope Corman, Kelly Noonan & Nancy E. Reichman, Maternal Depression as a Risk Factor for Family Homelessness, 104 Am. J. Pub. Health 1664 (2014) (finding that maternal depression during the postpartum year significantly increases the risk of subsequent homelessness among families with young children); Marah A. Curtis, Hope Corman, Kelly Noonan & Nancy E. Reichman, Life Shocks and Homelessness, 50 Demography 2227 (2013) (finding that the birth of a child with a severe health condition significantly increases the likelihood of family homelessness, especially in cities with high housing costs); Stefanie DeLuca & Eva Rosen, Housing Insecurity Among the Poor Today, 48 Ann. Rev. Socio. 343 (2022) (reviewing recent sociological research on housing insecurity, including forced moves, landlord practices, and the role of social relationships in housing stability); Vincent A. Fusaro, Helen G. Levy & H. Luke Shaefer, Racial and Ethnic Disparities in the Lifetime Prevalence of Homelessness in the United States, 55 Demography 2119 (2018) (finding that lifetime experiences of homelessness vary significantly by race and ethnicity, with Black and Hispanic individuals facing a substantially higher risk of homelessness compared to White individuals and highlighting structural inequalities as key drivers of these disparities); Zachary Giano, Amanda Williams, Carli Hankey, Renae Merrill, Rodica Lisnic & Angel Herring, Forty Years of Research on Predictors of Homelessness, 56 Cmty. Mental Health J. 692 (2020) (reviewing four decades of research to identify persistent and emerging predictors of homelessness across various populations, including adolescents, veterans, and families, highlighting factors such as family instability, unemployment, mental illness, and substance use).

        [38].     See Scott Clifford & Spencer Piston, Explaining Public Support for Counterproductive Homelessness Policy: The Role of Disgust, 39 Pol. Behav. 503, 503–04 (2017).

        [39].     See McJunkin, supra note 12, at 136–41; U.S. Dep’t of Hous. & Urb. Dev., The 2024 Annual Homeless Assessment Report (AHAR) to Congress 5–6 (Dec. 2024), https://www.huduser.gov/portal/sites/default/files/pdf/2024-AHAR-Part-1.pdf [https://perma.cc/E8Q4-AHEQ]; Daniel Soucy, Makenna Janes & Andrew Hall, State of Homelessness: 2024 Edition, Nat’l All. to End Homelessness, https://endhomelessness.org/homelessness-in-america/homelessness-statistics/state-of-homelessness/ [https://perma.cc/LBQ6-MVSM].

        [40].     McJunkin, supra note 12, at 136–41; Maria Foscarinis, Homelessness, Litigation and Law Reform Strategies: A United States Perspective, 10 Austl. J. Hum. Rts. 105, 110–14 (2004).

        [41].     Robert J. Steinfeld, Property and Suffrage in the Early American Republic, 41 Stan. L. Rev. 335, 364–65 (1989).

        [42].     Id. at 356–59 (explaining the justifications provided for property requirements for voting in the colonies of Massachusetts and Virginia).

        [43].     Stanley L. Engerman & Kenneth L. Sokoloff, The Evolution of Suffrage Institutions in the New World, 65 J. Econ. Hist. 891, 907 (2005).

        [44].     See Jeffrey S. Adler, A Historical Analysis of the Law of Vagrancy, 27 Criminology 209, 212 (1989).

        [45].     See Arthur H. Sherry, Vagrants, Rogues and Vagabonds—Old Concepts in Need of Revision, 48 Calif. L. Rev. 557, 558–60 (1960); Amy Dru Stanley, Beggars Can’t Be Choosers: Compulsion and Contract in Postbellum America, 78 J. Am. Hist. 1265, 1274–78 (1992).

        [46].     Michael J. Klarman, Race and the Court in the Progressive Era, 51 Vand. L. Rev. 881, 912, 921 (1998); Tamar R. Birckhead, The New Peonage, 72 Wash. & Lee L. Rev. 1595, 1606 (2015).

        [47].     E.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 158–62 (1972); see Risa Goluboff, Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s 253 (2016).

        [48].     See, e.g., Harry Simon, Towns Without Pity: A Constitutional and Historical Analysis of Official Efforts to Drive Homeless Persons from American Cities, 66 Tul. L. Rev. 631, 633–34 (1992).

        [49].     For example, the city of Los Angeles had a longstanding policy of “summarily confiscating and destroying” people’s briefly unattended carts containing things like “documents,” “family memorabilia,” “cell phones, [and] sleeping bags,” all without warning or notice. Lavan v. City of L.A., 693 F.3d 1022, 1024–26, 1032 (9th Cir. 2012). The city justified the “seizure[s] and disposal[s]” by arguing that the affected had violated a city ordinance stating that “[n]o person shall leave or permit to remain any merchandise, baggage or any article of personal property upon any parkway or sidewalk.” Id. at 1026.

        [50].     See id. at 1027–28, 1031. Other jurisdictions faced with similar governmental actions have produced varied decisions. See, e.g., Proctor v. District of Columbia, 310 F. Supp. 3d 107, 110–11, 116 (D.D.C. 2018) (distinguishing Lavan in that the plaintiffs failed to show that District officials did not reasonably consider the property abandoned).

        [51].     Lavan, 693 F.3d at 1031–32. The Lavan panel also held that expectation of privacy was irrelevant to a Fourth Amendment seizure claim: It noted that the standard for property seizure is “some meaningful interference with an individual’s possessory interests in that property,” and reasonable privacy expectations are relevant only to unlawful search cases. Id. at 1027–28 (9th Cir. 2012) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)).

        [52].     Id. at 1033.

        [53].     Meghan Henry, Tanya de Sousa, Caroline Roddey, Swati Gayen & Thomas Joe Bednar, U.S. Dep’t of Hous. & Urb. Dev., The 2020 Annual Homeless Assessment Report (AHAR) to Congress—Part 1: Point-in-Time Estimates of Homelessness 6 (2021), https://www.huduser.gov/portal/sites/default/files/pdf/2020-ahar-part-1.pdf [https://perma.cc/2KHJ-ZCTG].

        [54].     24 C.F.R. § 582.5 (2024).

        [55].     U.S. Dep’t of Hous. & Urb. Dev., supra note 3, at 4.

        [56].     Eric S. Tars, Criminalization of Homelessness, in Nat’l Low Income Hous. Coal., Advocates’ Guide ’21: A Primer on Federal Affordable Housing & Community Development Programs & Policies 6–36 (2021), https://nlihc.org/sites/default/files/AG-2021/2021_Advocates-Guide.pdf [https://perma.cc/7UB8-PYWR].

        [57].     Id.

        [58].     History & Mission, Nat’l Homelessness L. Ctr., https://homelesslaw.org/history-mission/ [https://perma.cc/E9C6-LDNU].

        [59].     See Nat’l L. Ctr. on Homelessness & Poverty, Housing Not Handcuffs 2019: Ending the Criminalization of Homelessness in U.S. Cities 77–81 (2019) [hereinafter Housing Not Handcuffs], https://homelesslaw.org/wp-content/uploads/2019/12/HOUSING-NOT-HANDCUFFS-2019-FINAL.pdf [https://perma.cc/35CR-SWMC] (providing an overview of strategies).

        [60].     U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).

        [61].     Ingraham v. Wright, 430 U.S. 651, 665–67 (1977).

        [62].     See, e.g., Coker v. Georgia, 433 U.S. 584, 592 (1977) (holding that the death penalty as punishment for rape of an adult was disproportionate and therefore cruel and unusual punishment).

        [63].     Ingraham, 430 U.S. at 666–67.

        [64].     Robinson v. California, 370 U.S. 660, 667 (1962) (noting that “[e]ven one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold”).

        [65].     Powell v. Texas, 392 U.S. 514, 517, 531–32 (1968). Two circuit courts had previously invalidated public drunkenness laws on reasoning similar to that of the Powell dissenters. See Easter v. District of Columbia, 361 F.2d 50, 53–55 (D.C. Cir. 1966); Driver v. Hinnant, 356 F.2d 761, 764–65 (4th Cir. 1966); Powell, 392 U.S. at 559–70 (Fortas, J., dissenting).

        [66].     Powell, 392 U.S. at 554, 567–68 (Fortas, J., dissenting).

        [67].     Jones v. City of L.A., 444 F.3d 1118, 1134–35 (9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007); Powell, 392 U.S. at 553–54 (White, J., concurring).

        [68].     See Jones, 444 F.3d at 1135–36; Powell, 392 U.S. at 553–54 (White, J., concurring).

        [69].     Pottinger v. City of Miami, 810 F. Supp. 1551, 1554, 1563–65 (S.D. Fla. 1992), remanded, 40 F.3d 1155 (11th Cir. 1994), and ordered to begin settlement discussions, 76 F.3d 1154 (1996). Eighteen years later, the Eleventh Circuit considered and rejected a similar Eighth Amendment challenge to an Orlando ordinance that prohibited “sleeping out-of-doors” on all public property. See Joel v. City of Orlando, 232 F.3d 1353, 1356, 1361–62 (11th Cir. 2000) (quoting Orlando, Fla., City Code § 43.52). Crucially, however, the ordinance would likely have passed muster even under the Ninth Circuit’s Martin-Grants Pass jurisprudence: A surplus of adequate shelter existed in the city every day during the period in question. Although the court mentioned that the ordinance “targets conduct, and does not provide criminal punishment based on a person’s status,” id. at 1362, the court appeared to reason that the criminalized behavior of public sleeping is based on conduct, not status, because it entails voluntary rejection of open shelter spaces out of preference for public camping. In other words, unlike with the conduct of the plaintiffs living in Boise and Grants Pass, the Joel plaintiffs’ sleeping on Orlando public property was not a compulsory act adjunct to their homelessness status. Regardless, this language is unnecessary to the outcome, so it is, at most, dicta. The court does not repudiate the central Eighth Amendment analysis of the Pottinger district court.

        [70].     Pottinger, 810 F. Supp. at 1563; see also Johnson v. City of Dallas, 860 F. Supp. 344, 350 (N.D. Tex. 1994) (holding that a “sleeping in public ordinance as applied against the homeless is unconstitutional”), rev’d on other grounds, 61 F.3d 442 (5th Cir. 1995).

        [71].     Pottinger v. City of Miami, 359 F. Supp. 3d 1177, 1179, 1181–82 (S.D. Fla. 2019).

        [72].     Jones, 444 F.3d at 1136 (alteration in original) (quoting Powell, 392 U.S. at 550 n.2 (White, J., concurring)).

        [73].     Id. at 1136.

        [74].     Id. at 1125, 1136.

        [75].     Id. at 1138.

        [76].     Martin v. City of Boise, 902 F.3d 1031, 1035 (9th Cir. 2018), amended by 920 F.3d 584, 604 (9th Cir. 2019).

[77].    Martin, 920 F.3d at 603.

        [78].     Id. (quoting Boise, Idaho, City Code § 9-10-02).

        [79].     Id. at 603–04 (quoting Boise, Idaho, City Code § 9-10-02).

        [80].     Id. at 604 (alteration in original) (quoting Boise, Idaho, City Code § 6-01-05).

        [81].     The panel was unanimous on the substantive issue. Judge Owens dissented on procedural grounds but concurred on the substantive Eighth Amendment question. See id. at 618–20 (Owens, J., concurring in part and dissenting in part).

        [82].     Id. at 616–17.

        [83].     Id. at 604.

        [84].     One of the authors served as a law clerk to Judge Milan D. Smith, Jr. in 2008–09, before the Martin litigation was initiated. None of the authors have corresponded with Judge Smith about this line of cases; this Article’s characterizations of Judge Smith’s views come exclusively from his published opinions.

        [85].     Martin, 920 F.3d at 590–93 (Smith, J., dissenting from the denial of rehearing en banc).

        [86].     See id. at 591.

        [87].     Id. at 589 (Berzon, J., concurring in the denial of rehearing en banc).

        [88].     City of Boise v. Martin, 140 S. Ct. 674 (2019) (mem.) (denying petition for certiorari).

        [89].     72 F.4th 868 (9th Cir. 2023).

        [90].     Id. at 875–76; see Grants Pass, Or., Mun. Code § 5.61.010 (2023) (amended 2024) (defining a campsite as “any place where bedding, sleeping bag, or other material used for bedding purposes, or any stove or fire is placed . . . for the purpose of maintaining a temporary place to live”).

        [91].     Grants Pass, 72 F.4th at 876.

        [92].     Id. at 875.

        [93].     Id. at 890–91, 896.

        [94].     Id. at 891.

        [95].     Id. at 889–90, 896.

        [96].     Id. at 896–914 (Collins, J., dissenting).

        [97].     Id. at 896.

        [98].     See infra Part II.B.

        [99].     See Grants Pass, 72 F.4th at 868.

      [100].     Other secondary, open questions include whether the Martin rule giving the homeless a right to public spaces includes some spaces that are typically off-limits to the general public, such as abandoned lots, see Rios v. Cnty. of Sacramento, 562 F. Supp. 3d 999, 1020 (E.D. Cal. 2021) (holding that Martin prevented removal from “a publicly owned lot that ha[d] been vacant for over ten years”), and whether civil removal orders—with no criminal ramifications—triggers a Martin claim, see Spinks v. Cal. Dep’t of Transp., No. 3:22-cv-05067-WHO, 2023 WL 2347422, at *2, *6 (N.D. Cal. Mar. 2, 2023) (holding no Eighth Amendment Martin claim lies from civil removal for trespassing).

      [101].     Martin v. City of Boise, 920 F.3d 584, 617 (9th Cir. 2019).

      [102].     Id. at 604.

      [103].     Id. at 617 (alteration in original).

      [104].     Id. at 604.

      [105].     Johnson v. City of Grants Pass, 72 F.4th 868, 877 (9th Cir. 2023) (quoting Martin, 920 F.3d at 617 n.8 (9th Cir. 2019)).

      [106].     City of Grants Pass v. Johnson, 603 U.S. 520, 552–53 (2024).

      [107].     Grants Pass, 72 F.4th at 935–36 (M. Smith, J., dissenting).

      [108].     See, e.g., Brief of Amici Curiae City of Phoenix & the League of Ariz. Cities and Towns Supporting Petitioner at 11, City of Grants Pass v. Johnson, 603 U.S. 520 (2024) (No. 23-175) [hereinafter Phoenix Grants Pass Merits Amicus Brief].

      [109].     See id. at 11–12.

      [110].     Petition for a Writ of Certiorari at 33–34, City of Boise v. Martin, 140 S. Ct. 674 (2019) (mem.) (No. 19-247) [hereinafter Boise Martin Cert. Petition]; Phoenix Grants Pass Merits Amicus Brief, supra note 108, at 3 (noting the unworkability of the law following Martin and Grants Pass); Brief of Amicus Curiae City of Los Angeles in Support of Petitioner at 15, City of Grants Pass v. Johnson, 603 U.S. 520 (2024) (mem.) (No. 23-175) [hereinafter Los Angeles Grants Pass Amicus Brief] (noting how it is easier for smaller towns and cities to comply with the Grants Pass and Martin “homeless versus shelter beds counting requirement,” but “cities like Los Angeles, San Francisco, San Diego, Sacramento, Seattle, Portland, Las Vegas, Phoenix – and a host of others – simply cannot”).

      [111].     Martin v. City of Boise, 920 F.3d 584, 617 n.8 (9th Cir. 2019).

      [112].     Id. at 609–10.

      [113].     Id. at 610 (citing Inouye v. Kemna, 504 F.3d 705, 712–13 (9th Cir. 2007)).

      [114].     See id.

      [115].     Boise Martin Cert. Petition, supra note 110, at 33 (observing that the Ninth Circuit “gives virtually no guidance as to what [‘practically available’] means . . . [W]hat about other forms of shelter [other than formal homeless shelters,] such as the home of a friend or relative? The court also held that some shelters, despite having beds available, may not be ‘practically available’ because the shelter has certain rules or features by which individuals may be unwilling to abide, such as check-in times, limitations on the duration of one’s stay, restrictions on ingress and egress, or religious ‘messaging on the shelter’s intake form’ and ‘iconography on the shelter walls’”).

      [116].     Warren v. City of Chico, No. 2:21-CV-00640-MCE-DMC, 2021 WL 2894648, at *4 (E.D. Cal. July 8, 2021).

      [117].     See L.A. Alliance for Hum. Rts. v. City of Los Angeles, No. LA CV 20-02291-DOC-KES, 2020 WL 2512811, at *3–4 (C.D. Cal. May 15, 2020).

      [118].     City of Grants Pass v. Johnson, 603 U.S. 520, 554 (2024)

      [119].     Id. at 555 (2024) (quoting Brief of Amici Curiae City of Phoenix & the League of Ariz. Cities and Towns Supporting Petitioner at 29–30, City of Grants Pass v. Johnson, 603 U.S. 520 (2024) (mem.) (No. 23-175) [hereinafter Phoenix Grants Pass Cert. Amicus Brief]) (second and third alterations in original)).

      [120].     Mahoney v. City of Sacramento, No. 2:20-cv-00258-KJM-CKD, 2020 WL 616302, at *1, *3, *4 (E.D. Cal. Feb. 10, 2020).

      [121].     Murphy v. Raoul, 380 F. Supp. 3d 731, 763–66 (N.D. Ill. 2019). The case was not appealed to the Seventh Circuit.

      [122].     Id.

      [123].     Martin v. City of Boise, 920 F.3d 584, 589 (9th Cir. 2019) (Berzon, J., concurring in the denial of rehearing en banc).

      [124].     Id. at 617 n.8 (9th Cir. 2019); see also Phoenix Grants Pass Cert. Amicus Brief, supra note 119, at 23 (“Martin appears to possibly allow regulations for time, place, and manner of encampments.”).

      [125].     See infra Part II.D.

      [126].     See Bacon v. City of Chula Vista, No. 22-cv-1278-GPC-WVG, 2022 WL 3924268, at *2 (S.D. Cal. Aug. 30, 2022); Tournahu v. Flynn, No. 22-cv-03220-EMC, 2022 WL 3549682, at *3 (N.D. Cal. Aug. 18, 2022).

      [127].     Boring v. Murillo, No. LA CV 21-07305-DOC(KES), 2022 WL 14740244, at *6 (C.D. Cal. Aug. 11, 2022) (“[U]nlike the city-wide bans in Jones and Martin, the Santa Barbara ordinance applies in only one area of the City. This geographic limitation may ultimately mean the ban does not violate the Eighth Amendment . . . [But g]iven . . . the similarities to previously overturned ordinances, Plaintiffs have adequately pled an Eighth Amendment violation at this stage of litigation.”).

      [128].     See Fund for Empowerment v. City of Phoenix, 646 F. Supp. 3d 1117, 1123, 1125 (D. Ariz. 2022) (“Defendants allegedly rely on [the camping and sleeping] statutes to cite unsheltered individuals, move them into the Zone, and destroy their property . . . .”).

      [129].     See, e.g., Coal. on Homelessness v. City and Cnty. of San Francisco, 647 F. Supp. 3d 806, 841–42 (N.D. Cal. 2022) (enjoining five related state and local ordinances); Fund for Empowerment, 646 F. Supp. 3d at 1123, 1132 (“It is therefore ordered that . . . the City, its agents and employees, are preliminarily enjoined from . . . [e]nforcing the Camping and Sleeping Bans against individuals who practically cannot obtain shelter as long as there are more unsheltered individuals in Phoenix than there are shelter beds available . . . .” (emphasis omitted)).

      [130].     See generally Richard H. McAdams, A Focal Point Theory of Expressive Law, 86 Va. L. Rev. 1649 (2000) (law as a focal point); Cass R. Sunstein, On the Expressive Function of Law, 144 U. Pa. L. Rev. 2021 (1996) (law as expressive signaling).

      [131].     See, e.g., Mila Versteeg, Can Rights Combat Economic Inequality?, 133 Harv. L. Rev. 2017, 2057–58 (2020) (describing the importance of making “law and politics align”).

      [132].     See Katerina Linos & Melissa Carlson, Qualitative Methods for Law Review Writing, 84 U. Chi. L. Rev. 213, 231 (2017).

      [133].     See id. at 231–32 (citing David Collier, Understanding Process Tracing, 44 PS: Pol. Sci. & Pol. 823, 825–26 (2011)).

      [134].     Samir Junejo, Homeless Rts. Advoc. Project, No Rest for the Weary: Why Cities Should Embrace Homeless Encampments i (Suzanne Skinner & Sara K. Rankin eds., 2016), https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1006&context=hrap [https://perma.cc/JV36-TTS2].

[135].     L.A. Homeless Servs. Auth., 2024 Greater Los Angeles Homeless Count: Key Findings 4 (2024), https://www.lahsa.org/news?article=976-2024-greater-los-angeles-homeless-count-data [https://perma.cc/CQV9-YVTK] (reporting that 75,312 homeless individuals resided in Los Angeles County, with a shelter capacity far below demand).

      [136].     Phoenix Grants Pass Cert. Amicus Brief, supra note 119, at 8–9.

      [137].     Coal. on Homelessness v. City & Cnty. of San Francisco, 647 F. Supp. 3d 806, 811 (N.D. Cal. 2022); Brief of Amicus Curiae City and Cnty. of San Francisco and Mayor Breed in Support of Petitioner at 1, 5, City of Grants Pass v. Johnson, 603 U.S. 520 (2024) (mem.) (No. 23-175).

      [138].     Boise Martin Cert. Petition, supra note 110, at 33; Quintero v. City of Santa Cruz, No. 5:19-cv-01898-EJD, 2019 WL 1924990, at *3 (N.D. Cal. Apr. 30, 2019) (containing a claim from the city of Santa Cruz that, in response to Martin, it “has suspended the enforcement of its camping ordinance to ensure that no indigent homeless individual will be cited for sleeping outdoors or camping”); see Gregory Scruggs, Western Cities Scramble to Comply with Court Ruling on Homelessness, U.S. News & World Rep. (Feb. 10, 2020), https://www.usnews.com/news/cities/articles/2020-02-10/western-cities-scramble-to-comply-with-court-ruling-on-homelessness [https://perma.cc/3SF2-VJGF] (stating that Modesto, California “[f]aced . . . a new legal reality that the city could not enforce its camping ban”); Patrick Sisson, Homeless People Gain ‘de Facto Right’ to Sleep on Sidewalks Through Federal Court, Curbed (Dec. 16, 2019), https://www.curbed.com/2019/4/5/18296772/homeless-lawsuit-boise-appeals-court [https://perma.cc/ZK77-DD5V] (observing that Portland, San Francisco, and Sacramento halted enforcement); Rankin, supra note 30, at 574 (noting that initially Martin caused cities to stop enforcing anti-camping ordinances); Brief of Amici Curiae Ten California Cities and the Cnty. of Orange at 14–19, City of Grants Pass v. Johnson, 603 U.S. 520 (2024) (mem.) (No. 23-175) [hereinafter Ten Cities Grants Pass Amicus Brief] (reporting this for Fillmore, Garden Grove, Glendora, Chino, and Murrieta); Aitken v. City of Aberdeen, 393 F. Supp. 3d 1075, 1079–80 (W.D. Wash. 2019) (observing that the city of Aberdeen does not enforce its anti-camping ordinances when there are not enough shelter beds, and that this exception is in effect at all times).

      [139].     444 F.3d 1118 (9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007).

      [140].     See Los Angeles Grants Pass Amicus Brief, supra note 110, at 9 (“The City has been grappling with the ramifications of [the Jones] settlement (i.e. the strain of having a large population of persons experiencing homelessness dwelling on shared public spaces) for more than 15 years.”).

      [141].     See Susan Shelley, LA Should Revisit Lawsuit Settlement that Allowed Skid Row Conditions Everywhere, L.A. Daily News (Aug. 28, 2017), https://www.dailynews.com/2017/06/20/la-should-revisit-lawsuit-settlement-that-allowed-skid-row-conditions-everywhere-susan-shelley/ [https://perma.cc/93DQ-4MZB].

      [142].     See Brief Amicus Curiae of Brentwood Community Council in Support of Petitioner at 7, City of Grants Pass v. Johnson, 603 U.S. 520 (2024) (mem.) (No. 23-175). However, in 2019, the city adopted an ordinance “restricting unsheltered people from sleeping within five hundred feet of homeless shelters, parks, bike paths, tunnels, or bridges along school routes.” Rankin, supra note 30, at 579.

      [143].     IMLA Grants Pass Amicus Brief, supra note 10, at 1.

      [144].     What the Ninth Circuit’s Camping Ruling Means for Housing First Strategies in Cities, Nat’l League of Cities (Sept. 19, 2018), https://www.nlc.org/article/2018/09/19/what-the-ninth-circuits-camping-ruling-means-for-housing-first-strategies-in-cities/ [https://perma.cc/SR4R-K7ZW].

      [145].     Id. (emphasis added). The NLC later changed tracks and publicly opposed the Martin decision. See, e.g., Rankin, supra note 30, at 563.

      [146].     Aaron Barnes, Homelessness Rights and Wrongs, Tex. Law. (Apr. 28, 2020),

https://www.law.com/texaslawyer/2020/04/28/homelessness-rights-and-wrongs/ [https://perma.cc/KZ3W-VUGU] (“Proponents of the city of Austin’s repeal of its ban on homeless encampments and other vagrancy laws have tried to justify their support by pointing to a recent federal court decision out of Idaho.”); Gregorio “Greg” Casar, City of Austin, Frequently Asked Questions for Homelessness Decriminalization Ordinances Commonly Known as Panhandling, Sit/Lie, and Camping, https://services.austintexas.gov/edims/document.cfm?id=321210 [https://perma.cc/2JHT-9QV3] (last visited Jan. 15, 2025) (stating that existing ordinances “increase the City’s legal risk,” that “[a] recent 9th Circuit Court of Appeals case, Martin v. Boise, found that their camping ordinance was unconstitutional based on the 8th Amendment because it is cruel and unusual to punish people for sleeping outside if there are no other options,” and that “[a] 2015 Supreme Court case has also recently been used to strike down various panhandling ordinances in other cities that are similar to Austin’s ordinances”).

      [147].     See Maggie Glass, Legalities of Tent Encampment at Market Street Park, 29 News (Sept. 26, 2023), https://www.29news.com/2023/09/26/legalities-tent-encampment-market-street-park/ [https://perma.cc/3W2C-5UMV].

      [148].     That said, a 2019 Fourth Circuit en banc case relied on Grants Pass in holding that, for a civilly designated “habitual drunkard,” mere possession of alcohol may not be criminalized, as it constitutes a compulsory response to holding the status of alcoholic. Manning v. Caldwell, 930 F.3d 264, 281–84 (4th Cir. 2019) (en banc). City officials may have speculated that the Fourth Circuit could eventually expand on its logic in Manning to embrace that in Martin.

      [149].     Boise Martin Cert. Petition, supra note 110, at 34.

      [150].     See, e.g., Brief of the California State Ass’n of Cntys. and the League of California Cities as Amici Curiae in Support of Petitioner at 6, City of Grants Pass v. Johnson, 603 U.S. 520 (2024) (No. 23-175) (citing Judge Milan Smith as noting that Martin left cities “without a clue” on what the law required).

      [151].     Phoenix Grants Pass Cert. Amicus Brief, supra note 119, at 18–19.

      [152].     See Los Angeles Grants Pass Amicus Brief, supra note 110, at 13–15; Brief of Amici Curiae Cal. State Sheriffs’ Ass’n, Cal. Police Chiefs Ass’n, Cal. Cities of San Juan Capistrano, Placentia and Westminster and the Ass’n of Cal. Cities – Orange Cnty. in Support of Petitioner at 11, City of Grants Pass v. Johnson, 603 U.S. 520 (2024) (mem.) (No. 23-175).

      [153].     See generally Jonathan L. Hafetz, Homeless Legal Advocacy: New Challenges and Directions for the Future, 30 Fordham Urb. L.J. 1215 (2003) (discussing the evolving role of legal advocacy in addressing homelessness and emphasizing the integration of legal and non-legal services to tackle its root causes).

      [154].     Nat’l Homelessness L. Ctr., supra note 58.

      [155].     Our Mission, Or. L. Ctr., https://oregonlawcenter.org/about-olc/our-mission/ [https://perma.cc/4823-YFZK].

      [156].     Our Mission and History, Nat’l All. to end Homelessness, https://endhomelessness.org/who-we-are/our-mission-and-history/ [https://perma.cc/P6D8-X3J7].

      [157].     About Us, Coal. for the Homeless, https://www.coalitionforthehomeless.org/about-cfh/ [https://perma.cc/Y9ZC-YF27].

      [158].     Our Work, Inst. for Const. Advoc. & Prot., https://www.law.georgetown.edu/icap/our-work/ [https://perma.cc/85BR-U333].

      [159].     See, e.g., Our History, Coal. for the Homeless, https://www.coalitionforthehomeless.org/our-history/ [https://perma.cc/2ELW-LZ2A] (providing a timeline of litigation and other developments, including cases where the Coalition has collaborated with other advocacy organizations); Court Cases, Nat’l Homelessness L. Ctr., https://homelesslaw.org/court-cases/ [https://perma.cc/8W2P-SNSW] (listing cases concerning homelessness that the Center has been or is currently involved in).

      [160].     See Inst. for Const. Advoc. and Prot., 2023 Annual Report 2, https://www.law.georgetown.edu/icap/wp-content/uploads/sites/32/2023/08/2023-AR-Final-accessible.pdf [https://perma.cc/6NU6-QNNU]; Brief in Opposition, City of Grants Pass v. Johnson, 603 U.S. 520 (2024) (mem.) (No. 23-175) [hereinafter Respondents’ Grants Pass Brief in Opposition].

      [161].     Nat’l Homelessness L. Ctr., supra note 159; see Brief in Opposition, City of Boise v. Martin, 140 S. Ct. 674 (2019) (mem.) (No. 19-247).

      [162].     Brief of Neighbors for a Better S.F., S.F. Chamber of Com., Cal. Bus. Roundtable, Cal. Retailers Ass’n, and More Than 300 S.F.-Based Cos., Bus. Owners and Execs., Civic Orgs., Pros., and Neighborhood Leaders as Amici Curiae in Support of Petitioner at 15a-17a, Grants Pass, 603 U.S. 520 (No. 23-175) (listing cases filed against local jurisdictions) [hereinafter San Francisco Neighbors Grants Pass Amicus Brief].

      [163].     See, e.g., San Bernardino PD, [ARCHIVED] Press Release - The Adverse Impacts of Martin v. Boise on the City of San Bernardino, City of San Bernardino (Sept. 18, 2023), https://sbcity.org/CivicAlerts.aspx?AID=155&ARC=130 [https://perma.cc/UY2D-97EN].

      [164].     See Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective 15–22, 45–50 (1998); see also Scott L. Cummings, Law and Social Movements: Reimagining the Progressive Canon, 2018 Wis. L. Rev. 441, 441 (2018) (examining “the ‘progressive legal canon’ . . . and explor[ing] the implications of canon construction and critique for the study of lawyers and social movements”); Michael W. McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization 89–94 (1994) (explaining how “legal tactics and practices contributed significantly to the process of building the pay equity movement”).

      [165].     Ten Cities Grants Pass Amicus Brief, supra note 138, at 5 (emphasis added).

      [166].     IMLA Grants Pass Amicus Brief, supra note 10, at 3.

      [167].     Sam Quinones, Skid Row Nation: How L.A.’s Homelessness Crisis Response Spread Across the Country, L.A. Mag. (Oct. 6, 2022), https://lamag.com/news/skid-row-nation-how-l-a-s-homelessness-crisis-response-spread-across-the-country [https://perma.cc/M9HR-J738].

      [168].     See Fund for Empowerment v. City of Phoenix, 646 F. Supp. 3d 1117, 1132 (D. Ariz. 2022). For a discussion, see Phoenix Grants Pass Cert. Amicus Brief, supra note 119, at 23 n.37.

      [169].     Boring v. Murillo, No. LA CV 21- 07305-DOC (KES), 2022 WL 14740244, at *6 (C.D. Cal. Aug. 11, 2022).

      [170].     Coal. on Homelessness v. City & Cnty. of San Francisco, 647 F. Supp. 3d. 806, 842 (N.D. Cal. 2022).

      [171].     Id. at 836.

      [172].     Brief of Amici Curiae Bay Area Council et al. in Support of Petitioner City of Grants Pass at 11, City of Grants Pass v. Johnson, 603 U.S. 520 (2024) (No. 23-175).

      [173].     See, e.g., Housing Not Handcuffs, supra note 59, at 75–77; Sara K. Rankin, Punishing Homelessness, 22 New Crim. L. Rev. 99, 110–11 (2019); McJunkin, supra note 12, at 132 (criticizing “government-funded shelter” as not “a universal solution to the social problem of homelessness” and proposing “an essential right to shelter oneself without government interference”).

      [174].     See, e.g., Rankin, supra note 30, at 568 n.51.

      [175].     See Nat’l League of Cities, supra note 144.

      [176].     See, e.g., id.

      [177].     See McJunkin, supra note 12, at 164–66.

      [178].     Nat’l Health Care for the Homeless Council, supra note 22, at 2 (“Encampments prevent the need to carry around one’s belongings all day and can offer a stability that overnight shelters cannot. Encampments also allow families to stay together and will accommodate pets.”); McJunkin, supra note 12, at 164 (“Estimates are that 77 percent of homeless individuals would prefer living unsheltered rather than occupying temporary emergency shelters provided by the state.”).

      [179].     See Olson & Pauly, supra note 22, at 130–32.

      [180].     See, e.g., Press Release, Nat’l L. Ctr. on Homelessness & Poverty, Federal Appeals Court Affirms Right of Homeless Persons to Not Be Punished for Sleeping in Public in Absence of Alternatives, (Sept. 4, 2018), https://homelesslaw.org/wp-content/uploads/2018/12/09.04.18_Boise_ruling.pdf [https://perma.cc/9TZU-V8TH]; McJunkin, supra note 12, at 159–60 (documenting the positive response); Rankin, supra note 30, at 562 (noting that “homeless rights advocates celebrated” the decision).

      [181].     Pottinger v. City of Miami, 810 F. Supp. 1551, 1561 (S.D. Fla. 1992).

      [182].     Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006).

      [183].     See supra Part I.B.2.

      [184].     See, e.g., Jessie Speer, The Rise of the Tent Ward: Homeless Camps in the Era of Mass Incarceration, 62 Pol. Geography 160, 166 (2018) (In 2007, homeless residents of Fresno “spoke against a proposed anti-camping ordinance, saying, ‘If this ordinance is passed it will be challenged. It was challenged in Los Angeles and they had to back down because it is not good for the people.’”).

      [185].     Nat’l L. Ctr. on Homelessness & Poverty, supra note 17, at 21 (noting the existence of at least nineteen encampments nationwide in 2007).

      [186].     Cf. Goluboff, supra note 47, at 250–60 (2016) (noting that by the time the Supreme Court decided Papachristou v. City of Jacksonville, values with respect to vagrancy had already started to shift, which made it easier to implement this decision).

      [187].     See Jill Jacobson, Brown v. City of Phoenix: Can Common Law Make Up for a Lack of Common Sense?, Federalist Soc’y (Apr. 19, 2023), https://fedsoc.org/commentary/fedsoc-blog/brown-v-city-of-phoenix-can-common-law-make-up-for-a-lack-of-common-sense [https://perma.cc/4G35-DSYA] (describing the creation of the Zone in 2019 and linking it to Martin, since city officials have taken Martin as a “carte blanche” to stop enforcing existing city ordinances).

      [188].     See Brief of Amici Curiae Freddy Brown et al. in Support of Petitioner City of Grants Pass at 3–5, City of Grants Pass v. Johnson, 603 U.S. 520 (2024) (mem.) (No. 23-175) [hereinafter Freddy Brown Grants Pass Amicus Brief] (providing evidence that “the City routinely cited the Boise and Grants Pass decisions as a defense to the public nuisance claim—and as the reason why the City has experienced a growth in public encampments”); Brown v. City of Phoenix, Nos. 1 CA-CV 23-0273, 1 CA-CV 23-0689 (consolidated), 2023 WL 8524162, No. CV 2022-010439 (Ariz. Super. Ct. Sept. 20, 2023).

      [189].     Freddy Brown Grants Pass Amicus Brief, supra note 188, at 4–5 (second alteration in original).

      [190].     See Brief Amicus Curiae of Goldwater Inst. in Support of Petitioner at 14, Grants Pass, 603 U.S. 520 (No. 23-175).

      [191].     Id.

      [192].     Id. at 11 (“Not only does the city abide such behavior, it actively encourages it, both by refusing to enforce the law in [t]he Zone, and by actually transporting homeless people from other locations in Phoenix into [t]he Zone.”).

      [193].     Fund for Empowerment v. City of Phoenix., 646 F. Supp. 3d 1117, 1124–25 (D. Ariz. 2022).

      [194].     Respondents’ Grants Pass Brief in Opposition, supra note 160, at 3.

      [195].     Nat’l Low Income Hous. Coal., supra note 23 (“The Centers for Disease Control and Prevention (CDC) issued guidance . . . on March 22 advising municipalities not to clear homeless encampments during the coronavirus outbreak unless individual housing units are available.”). The CDC also urged against using traditional shelters since many people sharing close quarters could also accelerate its spread. See Guidance on Management of COVID-19 in Homeless Service Sites and in Correctional and Detention Facilities, Ctr. for Disease Control & Prevention (May 11, 2023), https://archive.cdc.gov/www_cdc_gov/coronavirus/2019-ncov/community/homeless-correctional-settings.html [https://perma.cc/PWQ8-MFCX]. The CDC recommended that municipalities should break up camps only when individual housing units were available. Nat’l Low Income Hous. Coal., supra note 23.

      [196].     See, e.g., Joel Grover & Josh Davis, Homeless Encampments Spread to Beaches, Golf Courses as City Takes Hands-Off Approach, NBC L.A. (Sept. 4, 2020), https://www.nbclosangeles.com/investigations/omeless-encampments-spread-to-beaches-golf-coursesas-city-takes-hands-off-approach/2423332/ [https://perma.cc/V3SH-M4S5].

      [197].     See, e.g., Jacobson, supra note 187 (describing the creation of the Zone in 2019 and linking it to Martin, since city officials have taken Martin as a “carte blanche” to stop enforcing existing city ordinances).

      [198].     Nat’l L. Ctr. on Homelessness & Poverty, supra note 17, at 7.

      [199].     Dunton et al., supra note 16, at ES1, 5 (observing an unprecedented number of encampments in 2019 and noticing the impact of the Ninth Circuit jurisprudence).

      [200].     McJunkin, supra note 12, at 164; Freddy Brown Grants Pass Amicus Brief, supra note 188, at 8 (“At trial, the evidence revealed that the vast majority of individuals on the streets in the Zone are voluntarily homeless . . . because they would refuse access to temporary shelter if offered.”); IMLA Grants Pass Amicus Brief, supra note 10, at 22.

      [201].     Nat’l All. to End Homelessness, State of Homelessness: 2022 Edition (2022), https://endhomelessness.org/wp-content/uploads/2023/05/StateOfHomelessness_2022.pdf [https://perma.cc/W6DB-VP4J].

      [202].     See Brief of Amicus Curiae Grants Pass Gospel Rescue Mission in Support of Petitioner at 4–5, City of Grants Pass v. Johnson, 603 U.S. 520 (2024) (No. 23-175).

      [203].     Brief for City and Cnty. of San Francisco and Mayor Breed as Amici Curiae in Support of Neither Party at 7–9, City of Grants Pass v. Johnson, 603 U.S. 520 (2024) (No. 23-175).

      [204].     Freddy Brown Grants Pass Amicus Brief, supra note 188, at 12 (recalling expert testimony that “revealed that the unsheltered population is generally mobile, and many move to cities with more permissive camping policies” and explained “that anywhere from one-third to one-half of unsheltered individuals became homeless in another city”).

      [205].     2022 Point in Time Count Report Released, Sacramento Cnty. (June 28, 2022), https://www.saccounty.gov/news/latest-news/Pages/2022-Point-in-Time-Count-Report-Released.aspx [https://perma.cc/R73W-JP6L].

      [206].     See Cynthia Hubert, Sacramento State Researchers Document Startling Jump in Homelessness in County, Sacramento St. (July 5, 2022), https://www.csus.edu/news/newsroom/stories/2022/7/homeless-count-2022.html [https://perma.cc/WB5W-5JTW]; Caroline Morales & Becca Habegger, Sacramento County’s Homeless Population Nearly Doubled Between 2019 and 2022, Report Finds, ABC10 (June 28, 2022), https://www.abc10.com/article/news/local/sacramento/sacramento-point-in-time-count-homeless/103-73e01412-f1ab-4e6e-8b3a-08453373918c [https://perma.cc/3UCY-XHMC].

      [207].     See Nev. Homeless All., 2023 Southern Nevada Point-In-Time Count, https://nevadahomelessalliance.org/wp-content/uploads/2023/10/Help-Hope-Home-2023-PIT-Results.pdf [https://perma.cc/G3AJ-WECL].

      [208].     See Phoenix Grants Pass Cert. Amicus Brief, supra note 119, at 7.

      [209].     Doug Smith & Ruben Vives, Homelessness Continues to Soar, Jumping 9% in L.A. County, 10% in the City, L.A. Times (June 29, 2023), https://www.latimes.com/california/story/2023-06-29/la-county-homelessness-unhoused-population-count-jumps-increase [https://perma.cc/L6SR-R99W] (showing a 14 percent increase in unsheltered individuals).

      [210].     Lisa Halverstadt, Regional Census Tracks Unprecedented Spike in Homelessness, Voice of San Diego (June 8, 2023), https://voiceofsandiego.org/2023/06/08/regional-census-tracks-unprecedented-spike-in-homelessness/ [https://perma.cc/M7U5-KYSC] (showing a 26 percent increase in people sleeping outside).

      [211].     See Joint Ctr. for Hous. Stud. of Harvard Univ., The State of the Nation’s Housing 2023 7 (2023), https://www.jchs.harvard.edu/sites/default/files/reports/files/Harvard_JCHS_The_State_of_the_Nations_Housing_2023.pdf [https://perma.cc/R7TE-3D7X].

      [212].     Applied Surv. Rsch., S.F. Homeless Count And Survey: 2022 Comprehensive Report 53 (2022), https://hsh.archive.sf.gov/wp-content/uploads/2022/08/2022-PIT-Count-Report-San-Francisco-Updated-8.19.22.pdf [https://perma.cc/F4CQ-VFD6].

[213].     In 2017, San Francisco, in partnership with Tipping Point Community, launched the Chronic Homelessness Initiative (CHI), a five-year effort aimed at reducing chronic homelessness in the city by 50%. This initiative focused on creating additional permanent supportive housing units and improving public systems to address the underlying causes of homelessness. See generally, Chronic Homelessness Initiative (CHI), Tipping Point Community, https://tippingpoint.org/project-investments/chi/ [https://perma.cc/4GR9-B8QX].

      [214].     See Dep’t of Homelessness and Supportive Hous., Foreword by HSH to Applied Surv. Rsch., supra note 212.

      [215].     See San Francisco Neighbors Grants Pass Amicus Brief, supra note 162, at 13–14; Sisson, supra note 138.

      [216].     See supra notes 162–163 and accompanying text.

      [217].     Respondents’ Grants Pass Brief in Opposition, supra note 160, at 3–4 (noting the unpopularity of cities’ choice to stop enforcing camping bans); see also Brian E. Adams, Megan Welsh Carroll & Nicolas Gutierrez III, Community Acceptance of, and Opposition to, Homeless-Serving Facilities, 3 Int’l J. on Homelessness 156, 157 (2023) (examining factors influencing public support and resistance to homeless shelters and services).

      [218].     See generally Junejo, supra note 134, at 4–5 (defining sanctioned encampments and distinguishing them from unsanctioned and private property encampments).

      [219].     1A Remaking America: State-Sanctioned Homeless Encampments, NPR (May 4, 2023), https://www.npr.org/2023/05/04/1174017993/1a-remaking-america-state-sanctioned-homeless-encampments [https://perma.cc/5FKT-UB3M].

      [220].     See Cynthia Griffith, Are Municipalities Turning to Sanctioned Encampments to Get Around Martin v. Boise?, Invisible People (Sept. 29, 2023), https://invisiblepeople.tv/are-municipalities-turning-to-sanctioned-encampments-to-get-around-martin-v-boise/ [https://perma.cc/56A8-F339].

      [221].     See Sasha Abramsky, Fed Up with the Homelessness Crisis, the Sacramento County DA Sues the City, The Nation (Sept. 22, 2023), https://www.thenation.com/article/society/sacramento-homelessness-thien-ho-lawsuit/ [https://perma.cc/HJ8G-ZYUM] (describing how the city has justified non-enforcement of municipal ordinances by arguing that “its hands have been largely tied by a series of court rulings and injunctions against sweeps of the encampments”).

      [222].     Id.

      [223].     Off. of the City Auditor, City of Sacramento, Report# 2023/24-11, Preliminary Report on the City’s Homeless Response 45 (2024), https://cityofsacramento.gov/content/dam/portal/auditor/Audit-Reports/City%20Auditors%20Preliminary%20Report%20on%20the%20Citys%20Homeless%20Response.pdf [https://perma.cc/JH6D-SKWP].

      [224].     See Chris Nichols, Sacramento’s Measure O: Voters to Decide Whether to Ban Homeless Camps on Public Property, CapRadio (Nov. 1, 2022), https://www.capradio.org/articles/2022/11/01/sacramentos-measure-o-voters-to-decide-whether-to-ban-homeless-camps-on-public-property/ [https://perma.cc/5DAN-BC5Y]; Jeremiah Martinez, Sacramento Measure Regarding Encampments Goes into Effect Next Month, Here’s What It Will Do, Fox40 (June 2, 2023), https://fox40.com/news/local-news/sacramento/sacramento-measure-regarding-encampments-goes-into-effect-next-month-heres-what-it-will-do/ [https://perma.cc/CN3S-7RZH].

      [225].     FAQ for Measure O/ESEA, City of Sacramento, https://www.cityofsacramento.gov/city-manager/projects-and-programs/measureo/faq [https://perma.cc/G2UX-89XK].

      [226].     Chris Nichols, Sacramento Reopens Sanctioned Homeless Campsite at Miller Park, CapRadio (July 14, 2023), https://www.capradio.org/articles/2023/07/14/sacramento-reopens-sanctioned-homeless-campsite-at-miller-park [https://perma.cc/MH8U-TS5Q].

      [227].     First Amended Complaint at 1–2, 45 People v. City of Sacramento, No. 23CV008658 (Cal. Super. Ct. Dec. 5, 2023).

      [228].     Brandon Thompson & Aimee Plante, ‘Terrified of Being Sued’: Portland Leaders Say Federal Rulings Limit Homelessness Law, KOIN (Sept. 28, 2023), https://www.koin.com/news/terrified-of-being-sued-portland-leaders-say-federal-rulings-limit-homelessness-law/ [https://perma.cc/5B8V-5FU2] (citing city officials as stating that Martin and subsequent decisions “paralyze[d] what cities can do to address those in public spaces”).

      [229].     See Brief of Amici Curiae League of Or. Cities, City of Portland, Ass’n of Idaho Cities, Special Districts Ass’n of Or., and the Wash. State Ass’n of Mun. Att’ys in Support of Petitioner at 7–8, 15–16, City of Grants Pass v. Johnson, 603 U.S. 520 (2024) (mem.) (No. 23-175) (reporting a 30 percent increase in homelessness “between 2019 and 2022,” even though more shelter beds were built).

      [230].     Rebecca Ellis, Portland Leaders Approve Plan to Ban Homeless Camping, Create Large Government-Sponsored Shelters, Or. Pub. Broad. (Nov. 3, 2022), https://www.opb.org/article/2022/11/03/portland-leaders-approve-plan-to-ban-homeless-camping-set-up-large-sites/ [https://perma.cc/CL92-7L9L].

      [231].     Id.

      [232].     Portland, Or., City Code § 14A.50.020(C)(1) (2023) (repealed 2024).

      [233].     Thompson & Plante, supra note 228 (quoting city commissioner Gonzales, saying “[i]t dramatically reduces the city’s ability to enforce unsanctioned camping ordinances so we are hoping the Supreme Court unwinds some really bad case law”).

      [234].     See Rankin, supra note 30, at 566.

      [235].     Id.

      [236].     Id. at 580.

      [237].     Position Statement on Sanctioned Encampments, Nat’l Coal. for the Homeless, https://nationalhomeless.org/sanctioned-encampment-policy/ [https://perma.cc/85EK-QGQU]; Siegler, supra note 34.

      [238].     See Junejo, supra note 134, at 11.

      [239].     See Judge Glock, Solving Texas’s Street Homelessness Problem, Cicero Inst. (Dec. 21, 2020), https://ciceroinstitute.org/research/solving-texass-street-homelessness-problem/ [https://perma.cc/3RA4-C92B]; Kyle Swenson, The Right’s War on ‘Housing First’ Lands in Middle America, Wash. Post (Dec. 22, 2023), https://www.washingtonpost.com/dc-md-va/2023/12/22/rights-war-housing-first-lands-middle-america/ [https://perma.cc/LW8J-T825].

      [240].     See Glock, supra note 239.

      [241].     See Cicero Inst., Reducing Street Homelessness Act Model Bill, https://ciceroinstitute.org/wp-content/uploads/2021/11/Reducing-Street-Homelessness-Act-Model-Bill.090821.pdf [https://perma.cc/F86L-X34R].

      [242].     H.R. 2668, 55th Leg., 1st Reg. Sess. (Ariz. 2021) (failed to pass).

      [243].     H.R. 1365, 2024 Leg., 126th Reg. Sess. (Fla. 2024) (passed).

      [244].     S. 62, 157th Gen. Assemb., 2023–2024 Reg. Sess. (Ga. 2023) (passed).

      [245].     S. 3175, 90th Gen. Assemb., 2024 Sess. (Iowa 2024) (failed to pass).

      [246].     H.R. 2614, 101st Gen. Assemb., 2d Reg. Sess. (Mo. 2022) (failed to pass).

      [247].     S. 1560, 58th Leg., Reg. Sess. (Okla. 2022) (failed to pass).

      [248].     H.R. 5, 2024 Gen. Assemb., Reg. Sess. (Ky. 2024) (passed).

      [249].     H.R. 1925, 87th Leg., Reg. Sess. (Tex. 2021) (passed).

      [250].     State Assemb. 604, 105th Leg., 2021–2022 Reg. Sess. (Wis. 2021) (failed to pass).

      [251].     See Olympia Sonnier & Ben Kamisar, Trump Says He’ll Ban Homeless Camping, Create “Tent Cities,” NBC News (Apr. 19, 2023), https://www.nbcnews.com/meet-the-press/meetthepressblog/trump-says-ban-homeless-camping-create-tent-cities-rcna80480 [https://perma.cc/72AB-LQC6].

      [252].     See Poll: Missourians Call for Bold Action on Homelessness, Cicero Inst. (Jan. 23, 2024), https://ciceroinstitute.org/research/poll-missourians-call-for-bold-action-on-homelessness/ [https://perma.cc/43XY-W6BE]; Cicero Institute Spotlights Key Insights from Kentucky Homelessness Poll, Cicero Inst. (Jan. 12, 2024), https://ciceroinstitute.org/news/cicero-institute-spotlights-key-insights-from-kentucky-homelessness-poll/ [https://perma.cc/PFC7-TURN].

      [253].     See Roshan Abraham, A Palantir Co-Founder Is Pushing Laws to Criminalize Homeless Encampments Nationwide, Vice (Mar. 13, 2023), https://www.vice.com/en/article/qjvdmq/a-palantir-co-founder-is-pushing-laws-to-criminalize-homeless-encampments-nationwide [https://perma.cc/DV8V-SSZN].

      [254].     See Horst W. J. Rittel & Melvin M. Webber, Dilemmas in a General Theory of Planning, 4 Pol’y Scis. 155, 160–67 (1973).

      [255].     City of Grants Pass v. Johnson, 603 U.S. 520 (2024).

      [256].     Id. at 544–47.

      [257].     Id. at 561–63 (Thomas, J., concurring).

      [258].     See id. at 563.

      [259].     Id. at 548.

      [260].     See id. at 549–50.

      [261].     Id. at 550 (quoting Powell v. Texas, 392 U. S. 514, 533 (1968)).

      [262].     Id. at 552 (citations omitted) (quoting Kahler v. Kansas, 140 S. Ct. 1021, 1030, 1031 (2020)).

      [263].     See id.

      [264].     See id. at 550–56; supra note 100.

      [265].     See Grants Pass, 603 U.S. at 550–54.

      [266].     See id.

      [267].     Id. at 555 (alteration in original) (quoting Johnson v. City of Grants Pass, 72 F.4th 868, 921 (2023) (joint statement of Silver and Gould, JJ., regarding denial of rehearing)).

      [268].     Id.

      [269].     Id. at 578 (Sotomayor, J., dissenting).

      [270].     Id. at 575 (emphasis added).

      [271].     Id.

      [272].     Id. at 570 (emphasis added) (quoting Grants Pass, Or., Municipal Code § 5.61.010(B) (2023) (amended 2024)).

      [273].     Id. (quoting Grants Pass, Or., Municipal Code § 5.61.010(B) (2023) (amended 2024)).

      [274].     See id. at 574–75, 579–81.

      [275].     Shawn Hubler, Newsom Orders California Officials to Remove Homeless Encampments, N.Y. Times (Jul. 25, 2024), https://www.nytimes.com/2024/07/25/us/newsom-homeless-california.html [https://perma.cc/W4JJ-QGTQ].

      [276].     Cal. Exec. Order No. N-1-24 (July 25, 2024), https://www.gov.ca.gov/wp-content/uploads/2024/07/2024-Encampments-EO-7-24.pdf [https://perma.cc/K957-VNZA].

      [277].     Taryn Luna, Newsom Threatens to Take Money from Counties That Don’t Reduce Homelessness, L.A. Times (Aug. 8, 2024), https://www.latimes.com/california/story/2024-08-08/gavin-newsom-homelessness-fight-california-counties [https://perma.cc/WFH9-RW37].

      [278].     Hannah Wiley, Taking Cue from Supreme Court, Breed to Launch Aggressive Homeless Sweeps in San Francisco, L.A. Times (July 27, 2024), https://www.latimes.com/california/story/2024-07-27/london-breed-to-launch-aggressive-homeless-sweeps-in-san-francisco [https://perma.cc/3KGG-KALW].

      [279].     Inside Safe, Mayor Karen Bass, https://mayor.lacity.gov/InsideSafe [https://perma.cc/2M92-UTHB] (last visited Jan. 18, 2025); Piper French, Gavin Newsom Is Creating a Disaster for Unhoused People, The Nation (Aug. 1, 2024), https://www.thenation.com/article/archive/gavin-newsom-is-creating-a-disaster-for-unhoused-people [https://perma.cc/M5JA-9XU9].

      [280].     Mayor Bass Slams Supreme Court’s Ruling to Allow Failed Homeless Policies Across the Nation, Mayor Karen Bass (June 28, 2024), https://mayor.lacity.gov/news/mayor-bass-slams-supreme-courts-ruling-allow-failed-homeless-policies-across-nation [https://perma.cc/6SF3-WP36].

      [281].     Leah Sarnoff, Los Angeles County Says ‘Care First, Jails Last’ to Newsom’s Homeless Encampment Order, ABC News (Aug. 3, 2024), https://abcnews.go.com/US/los-angeles-county-care-jails-newsoms-homeless-encampment/story?id=112448132 [https://perma.cc/56TZ-TTU5].

      [282].     See Coal. on Homelessness v. City and Cnty. of San Francisco, 90 F.4th 975, 977 (9th Cir. 2024).

      [283].     Coal. on Homelessness v. City and Cnty. of San Francisco, 106 F.4th 931, 932 (9th Cir. 2024) (mem.); Ninth Circuit Vacates Part of Injunction in Homeless Encampment Lawsuit, City Att’y of S.F. (July 8, 2024), https://www.sfcityattorney.org/2024/07/08/ninth-circuit-vacates-part-of-injunction-in-homeless-encampment-lawsuit/ [https://perma.cc/6CS2-N8RB].

      [284].     Conrad Wilson, Alex Zielinski & Dirk VanderHart, Homelessness Rules in Oregon May Not Change Much Despite Supreme Court Decision, Or. Pub. Broad. (June 28, 2024), https://www.opb.org/article/2024/06/28/supreme-court-grants-pass-homeless-case-impacts-oregon/ [https://perma.cc/8W2P-SNSW].

      [285].     City of Grants Pass v. Johnson, 603 U.S. 520, 556 (2024).

      [286].     See League of Or. Cities, Guide to Persons Experiencing Homelessness in Public Spaces 5 (2024), https://www.orcities.org/application/files/3217/2047/9381/GuidetoPersonsExperiencingHomelessnessinPublicSpaces.pdf [https://perma.cc/CNA3-5UJ7] (“From a strictly legal perspective, HB 3115 intended to capture and codify the key principles of Martin v. City of Boise and Blake v. City of Grants Pass.”); see also Nicole Hayden, Oregon Will Allow Homeless Individuals to Sleep on Public Land in All Communities, OregonLive (June 10, 2021), https://www.oregonlive.com/politics/2021/06/oregon-will-allow-homeless-individuals-to-pitch-tents-on-public-land-in-all-communities.html [https://perma.cc/9W4X-M8LH].

      [287].     Maggie Vespa, Oregon Bill Aims to Largely Ban ‘Sit-Lie’ Laws, KGW8 (Feb. 8, 2021), https://www.kgw.com/article/news/local/homeless/oregon-bill-aims-mostly-ban-sit-lie-laws/283-7f6933c9-5f50-4b35-b9fb-b6067991ff7f [https://perma.cc/QMJ3-SG9M].

      [288].     2021 Or. Laws ch. 370, § 1(2) (“(2) Any city or county law that regulates the acts of sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to the public must be objectively reasonable as to time, place and manner with regards to persons experiencing homelessness.”). In the same legislative session, the Oregon Legislative Assembly also passed House Bill 3124, which offers procedural protections relating to closures of sanctioned encampments. See 2021 Or. Laws ch. 371.

      [289].     See Or. Rev. Stat. Ann. § 195.505 (West 2022). Mayor Wheeler has also recently indicated that he would instruct Oregon lawmakers to define what constitutes a ‘reasonable’ restriction on public camping under the law, after a Multnomah County judge held that Portland’s “ban on [public] camping between the hours of 8 a.m. and 8 p.m.” violated the law. See Ashley Koch, Pat Dooris & Jamie Parfitt, What Happens to Homelessness in Oregon After Supreme Court’s Grants Pass Decision?, KGW8 (June 28, 2024), https://www.kgw.com/article/news/local/the-story/homeless-camp-case-grants-pass-oregon-supreme-court-ruling/283-2044f141-5a87-42c8-9c69-bdaedd0d01e8 [https://perma.cc/X8TE-P9NL].

      [290].     See Mila Versteeg & Emily Zackin, De-judicialization Strategies, 133 Yale L.J. F. 228, 240–43 (2023) (analyzing how political campaigns were launched to respond to Dobbs that adopted strategies to shift authority over abortion rights away from courts and entrenching their preferred policies through state constitutional amendments).

      [291].     S. 5016, 68th Leg., 2023 Reg. Sess. (Wash. 2023).

      [292].     H.R. 4919, 102nd Leg., 2023 Reg. Sess. (Mich. 2023).

      [293].     H.R. 18-1067, 71st Gen. Assemb., 2d Reg. Sess. (Colo. 2018).

      [294].     H.R. 3501, 82d Legis. Assemb., 2023 Reg. Sess. (Or. 2023); see also Blair Best, Controversial Oregon Bill Would Have Made Homeless Camp ‘Sweeps’ Illegal, Allowed Swept Campers to Sue for $1,000, KGW (May 1, 2023), https://www.kgw.com/article/news/local/homeless/oregon-bill-homeless-camp-sweeps-illegal/283-637ab1aa-e152-4b8a-a678-e2faba73e425 [https://perma.cc/P8Y8-M3LS] (detailing provisions of the lapsed Oregon legislation that would have introduced extensive procedural and substantive safeguards against violations of homeless people’s rights).

      [295].     Bobby Brier, New Legal Protections for Homeless People on Hold in NJ, NJ Spotlight News (July 29, 2024), https://www.njspotlightnews.org/2024/07/nj-homeless-protections-stalled-us-supreme-court-enables-public-places-sleeping-ban/ [https://perma.cc/UX73-9DKG].

      [296].     2023 N.Y.C. Local Law No. 62; see also NYC Enacts ‘Homeless Bill of Rights,’ but Doubts Arise over Key Provisions, PBS (May 30, 2023), https://www.pbs.org/newshour/politics/nyc-enacts-homeless-bill-of-rights-but-doubts-arise-over-key-provisions [https://perma.cc/2XVR-6NT5] (reporting that New York City’s new “Homeless Bill of Rights” grants unhoused individuals rights to sleep in designated public spaces, protections for gender identity in shelters, and complaint rights regarding shelter conditions).

      [297].     Senators Saval, Hughes, Cappelletti, and Kearney Announce Intention to Introduce Bill Preventing Criminalization of Homelessness, Pa. Senate Democrats (July 2, 2024), https://pasenate.com/senators-announce-intention-to-introduce-bill-preventing-criminalization-of-homelessness/ [https://perma.cc/67HS-QMZU].

      [298].     There is preliminary evidence of the program’s success. For example, Houston is said to have reduced homelessness in the greater Houston area by 63 percent since its introduction of Housing First in 2012. Martha Teichner, Inside Houston’s Successful Strategy to Reduce Homelessness, CBS News (Apr. 14, 2024), https://www.cbsnews.com/news/how-houston-successfully-reduced-homelessness/ [https://perma.cc/4V5R-VGFP].

      [299].     See U.S. Dep’t of Hous. & Urb. Dev., Housing First: A Review of the Evidence, Evidence Matters, Spring/Summer 2023, at 11.

      [300].     See, e.g., Alex Farrington, Racial Capitalism and Self-Organized Houseless Encampments: (En)countering Banishment in Portland and Miami, Env’t & Plan. C: Pol. & Space 6 (2023) (drawing on ethnographic data to show how attitudes toward self-organized encampments have evolved over time).

      [301].     See Ellen Bassuk & Deborah Franklin, Homelessness Past and Present: The Case of the United States, 1890-1925, 8 New Eng. J. Pub. Pol’y 67, 70 (1992) (examining the historical emergence of homelessness and policy responses, including shelters, in the United States between 1890 and 1925).

      [302].     See supra Part II.C.

      [303].     See What Do People Experiencing Homelessness Really Want?, A-Mark Found. (Sept. 13, 2022), https://amarkfoundation.org/reports/what-do-people-experiencing-homelessness-really-want/ [https://perma.cc/2QAZ-3QU7] (reporting survey findings that emphasize homeless individuals’ concerns about safety and barriers in accessing traditional shelters); Jason M. Ward, Rick Garvey & Sarah B. Hunter, RAND Corp., Recent Trends Among the Unsheltered in Three Los Angeles Neighborhoods: An Interim Report on the Los Angeles Longitudinal Enumeration and Demographic Survey (LA LEADS) Project 9, 22–23 (2022), https://www.rand.org/pubs/research_reports/RRA1890-1.html [https://perma.cc/4AE2-5DTK] (analyzing demographic and safety concerns among unsheltered homeless populations, highlighting the need for secure and accessible shelter options).

      [304].     See Jade N. Orr, Jeremy Németh, Alessandro Rigolon, Laura Santos Granja & Dani Slabaugh, NIMBY Attitudes, Homelessness, and Sanctioned Encampments: A Longitudinal Study in Denver, J. Plan. Educ. & Rsch. 1 (2024) (surveying local resident support for sanctioned encampments in Denver).

      [305].     Homelessness, Cicero Inst., https://ciceroinstitute.org/issues/homelessness/?_types=research [https://perma.cc/S4DE-VY3F].

      [306].     Id.

      [307].     See Devon Kurtz & Christopher Jones, Cicero Inst., Involuntary Civil Commitment 2 (2024), https://ciceroinstitute.org/wp-content/uploads/2024/01/Involuntary-Civil-Commitment-brief_1-19-2024.pdf [https://perma.cc/TP7G-KH2P] (arguing that “[i]nvoluntary civil commitment is an essential tool to help people who are experiencing homelessness and severe mental illness receive the treatment they need to survive”).

      [308].     The Condorcet winner is an option that would win a head-to-head comparison against each of the other alternatives. See generally Kenneth J. Arrow, Social Choice and Individual Values (2d ed. 1963).

      [309].     Longitudinal surveys indicate growing public support for compassionate approaches to tackling homelessness. See Jack Tsai, Crystal Yun See Lee, Thomas Byrne, Robert H. Pietrzak & Steven M. Southwick, Changes in Public Attitudes and Perceptions About Homelessness Between 1990 and 2016, 60 Am. J. Cmty. Psych. 599, 604 (2017); see also Clifford & Piston, supra note 38 (exploring the role of “disgust” in the public’s support for “counter-productive” homelessness policies like criminalization).

      [310].     Marisa Kendall, Gavin Newsom Orders State Agencies to Move Homeless People Out of Camps — But to Where?, CalMatters (July 25, 2024), https://calmatters.org/housing/homelessness/2024/07/newsom-homeless-encampments-order [https://perma.cc/6G7V-27YD]; CalMatters, City Mayor Swore Not to Criminalize Homelessness, But Report Says She Did, Santa Monica Daily Press (Aug.16, 2024), https://smdp.com/news/this-big-city-mayor-swore-not-to-criminalize-homelessness-a-new-report-says-she-did-anyway/ [https://perma.cc/Q5DZ-UQZY].

      [311].     Foscarinis, supra note 40, at 114–16 (tracking the use and proliferation of criminal laws and attendant law enforcement practices against homeless people in American cities in the 1980s and 1990s).

[312].     See Cicero Inst., Integrating Treatment for Vulnerable Populations, https://ciceroinstitute.org/issues/homelessness/integrating-treatment-for-vulnerable-populations/ [https://perma.cc/E9ZR-2F5P].

[313].     See supra note 177.

      [314].     One of the most striking fault lines in the discourse around homelessness policy has been the reemergence of “revanchist” policies seeking to “take back” public spaces from impoverished people, including homeless populations. See Jade N. Orr, Jeremy Németh, Alessandro Rigolon, Laura Santos Granja & Dani Slabaugh, Beyond Revanchism? Learning from Sanctioned Homeless Encampments in the U.S., 45 Urb. Geography 433 (2024) (analyzing the role of sanctioned encampments in countering punitive “revanchist” policies against homelessness by providing supportive alternatives); Antonin Margier, The Compassionate Invisibilization of Homelessness: Where Revanchist and Supportive City Policies Meet, 44 Urb. Geography 178 (2023) (discussing the intersection of punitive and supportive policies and how “compassionate invisibilization” shapes public perceptions of homelessness).

      [315].     Claire Rush, Grants Pass Bans Homeless Camping Except in Some Areas, Rogue Valley Times (Aug. 12, 2024), https://www.rv-times.com/localstate/grants-pass-bans-homeless-camping-except-in-some-areas/article_58f64697-741f-5b39-816c-9bb30e01d040.html#:~:text=The%20new%20laws%20create%20four,adults%2C%20the%20Gospel%20Rescue%20Mission [https://perma.cc/CG5S-33CC].

      [316].     See Junejo, supra note 134, at 4; Tony Sparks, Citizens Without Property: Informality and Political Agency in a Seattle, Washington Homeless Encampment, 49 Env’t and Plan. A: Econ. & Space 86, 87–88 (2017).

      [317].     Dunton et al., supra note 16, at 22–23 (describing the development and incidence of mental health, sanitation, and other facilities in a number of surveyed cities, including Chicago and Houston, between 2016 and 2019); Stephen Przybylinski, From Rejection to Legitimation: Governing the Emergence of Organized Homeless Encampments, 60 Urb. Affs. Rev. 118, 129 (2024) (describing the setting up of supportive infrastructure around encampments in Portland, Oregon, around 2016); Ippolytos Kalofonos, Matthew McCoy, Lisa Altman, Lillian Gelberg, Alison B. Hamilton & Sonya Gabrielian, A Sanctioned Encampment as a Strategy for Increasing Homeless Veterans’ Access to Housing and Healthcare During the COVID-19 Pandemic, 38 J. Gen. Int’l Med. 857, 858 (2023) (describing the setting up of supportive infrastructure in a sanctioned encampment in Los Angeles starting in late 2019 and continuing into the COVID-19 pandemic in 2020).

      [318].     Claire Rush, Portland, Oregon, Approves $27M for New Homeless Camps, Associated Press (Nov. 30, 2022), https://apnews.com/article/health-oregon-portland-mental-social-services-7e2c55be4910618062d6768d2eac61d3#:~:text=November%2030%2C%202022-,PORTLAND%2C%20Ore.,to%20address%20its%20homelessness%20crisis [https://perma.cc/Z2GK-36UX].

      [319].     Paul Pierson, Politics in Time: History, Institutions, and Social Analysis 31–36 (2004).

      [320].     See generally Andrea Louise Campbell, How Policies Make Citizens: Senior Political Activism and the American Welfare State (2003) (discussing how welfare policies create vested interests and mobilize beneficiaries into political activism); Paul Pierson, When Effect Becomes Cause: Policy Feedback and Political Change, 45 World Pol. 595, 609 (1993) (exploring how policies can generate self-reinforcing effects that shape future political behavior and institutional resilience).

      [321].     See Daniel J. Hopkins & Kalind Parish, The Medicaid Expansion and Attitudes Toward the Affordable Care Act: Testing for a Policy Feedback on Mass Opinion, 83 Pub. Op. Q. 123, 131–32 (2019).

      [322].     Recent Cases, Eighth Amendment — Criminalization of Homelessness — Ninth Circuit Refuses to Reconsider Invalidation of Ordinances Completely Banning Sleeping and Camping in Public — Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), 133 Harv. L. Rev. 699, 705 (2019).

      [323].     See generally Michael McCann, Litigation and Legal Mobilization, in The Oxford Handbook of Law and Politics 522, 529–30 (Keith E. Whittington, R. Daniel Kelemen & Gregory A. Caldeira eds., 2008) (detailing the judicial and political constraints that operate on individual and collective strategies of legal mobilization); Stuart A. Scheingold, The Politics of Rights: Lawyers, Public Policy and Social Change 131 (1974) (showing how rights and rights consciousness infused emerging legal strategies among activists and politicians that undergirded a range of progressive causes). Studies have pointed out the importance of rights-consciousness in the pay equity movement, the mental health patient movement, and the women’s rights movement, to name just a few. See McCann, supra note 164, at 5; Sally Engle Merry, Rights Talk and the Experience of Law: Implementing Women’s Human Rights to Protection from Violence, 25 Hum. Rts. Q. 343, 345–46 (2003).

      [324].     Gloria Johnson Template Legislation, Nat’l Homelessness L. Ctr., https://housingnothandcuffs.org/gloria-johnson-template-legislation/ [https://perma.cc/DZX6-Q9DH].

      [325].     Or. Rev. Stat. Ann. § 195.530(4) (West 2024) (creating a cause of action for homeless persons to “bring suit for injunctive or declaratory relief to challenge the objective reasonableness” of a local anti-camping or sit-lie law).

      [326].     State Assemb. Const. Amend. 10, 2023-2024 Leg., Reg. Sess. (Cal. 2023).

      [327].     Alexander Castro, Rhode Island Voters Approve All Four Bond Questions Totaling over $343 Million, R.I. Current (Nov. 6, 2024), https://rhodeislandcurrent.com/2024/11/06/rhode-island-voters-approve-all-four-bond-questions-totaling-over-343-million/ [https://perma.cc/A4F6-M39J].

      [328].     Greg Childress, Cary Says ‘No’ to Affordable Housing Bond. Asheville, Charlotte and Chapel Hill Say ‘Yes,’ AOL (Nov. 7, 2024), https://www.aol.com/cary-says-no-affordable-housing-104741027.html [https://perma.cc/P63T-2S9G].

      [329].     Voters Approve Housing and Homelessness Ballot Measures Across the Country on Election Day, Nat’l Low Income Hous. Coal. (Nov. 12, 2024), https://nlihc.org/resource/voters-approve-housing-and-homelessness-ballot-measures-across-country-election-day [https://perma.cc/37CD-U8J2].

      [330].     St. Louis, Missouri, Proposition S, Hotel Tax Measure (November 2024), Ballotpedia, https://ballotpedia.org/St._Louis,_Missouri,_Proposition_S,_Hotel_Tax_Measure_(2024) [https://perma.cc/Z2BT-4XQH] (last visited Jan. 19, 2025).

      [331].     Ingham County, Michigan, Housing and Homeless Millage Proposal, 2024, Enhanced Voting, https://app.enhancedvoting.com/results/public/ingham-county-mi/elections/general11052024?st=Ingham%20County%20Housing%20and%20Homeless%20Millage%20Proposal&sv=01000000-1b0d-f605-3d9a-08dced127000&sm=id [https://perma.cc/6F73-AG8B] (last visited Jan. 19, 2025).

      [332].     See generally Emily Zackin, Looking For Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (2013) (showing how constitutional history helps us understand why the constitutions of several U.S. states have progressive positive obligations).

      [333].     N.Y. Const. art. XVII, § 1 (establishing a state duty to provide for the aid, care, and support of the needy); see also N.Y. Soc. Serv. Law § 49 (defining homelessness and outlining intervention services), § 131-v (providing emergency shelter allowances for homeless households); N.Y.C., N.Y., Admin. Code § 21-328 (establishing the CityFHEPS housing subsidy program for homeless individuals and families), § 21-324 (mandating notification processes for establishing homeless shelters).

      [334].     Callahan v. Carey, No. 79-42582 (N.Y. Sup. Ct. Dec. 5, 1979); see generally Bradley R. Haywood, The Right to Shelter as a Fundamental Interest Under the New York State Constitution, 34 Colum. Hum. Rts. L. Rev. 157 (2002) (tracing the judicial enforceability of the right to shelter under the NY Constitution); Christine Robitscher Ladd, A Right to Shelter for the Homeless in New York State, 61 N.Y.U. L. Rev. 272 (1986) (identifying the textual foundations of the right to shelter to Article XVII of the New York State Constitution); McJunkin, supra note 12, at 147–51 (discussing the social movement activism that led to the NY State Supreme Court to recognize a right to shelter).