Rep. Issa, DOJ join homeless encampment case before the Supreme Court

SAN DIEGO (FOX 5/KUSI) — As arguments inch closer in a U.S. Supreme Court case that could reshape how elected officials are able to address homeless encampments, more groups have sought to weigh in, including multiple members of Congress and the Department of Justice.

They join a slew of briefs filed with the high court by an unusual coalition of progressives and conservatives since last August, when the city of Grants Pass petitioned the justices to take up their case, Grants Pass v. Gloria Johnson, challenging controversial appeals court rulings on the issue.

These rulings from the 9th Circuit held that anti-camping ordinances aimed at preventing unhoused people from sleeping in public places through fines or other penalties as unconstitutional punishment if there is nowhere else for them to go.

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Elected officials in western cities like San Diego that fall under the 9th Circuit have long lamented the decisions, which stem from the 2018 case Martin v. Boise, as a restriction on their ability to mitigate health and safety risks in encampments.

In Martin, the appeals court held that the “cruel and unusual punishment” clause of the Eighth Amendment prevents governments from imposing penalties on homeless individuals for “sitting, sleeping, or lying outside on public property” if there is no accessible alternative.

It was followed by the Grants Pass case, which was brought by three homeless residents of the small Oregon town, affirming the conclusion that a “person cannot be prosecuted for involuntary conduct if it is an unavoidable consequence of one’s status.”

Dozens of groups and elected leaders, like Gov. Gavin Newsom, have filed “amicus curiae” briefs since last year to urge the court to hear appeal in the Grants Pass case, arguing it was an overreach by the courts. The city of San Diego and District Attorney Summer Stephan also filed similar memos.

Unhoused people and their advocates, on the other hand, have argued the 2018 decision is an important backstop to prevent adverse harm from policies that impose criminal penalties on life-sustaining activities when there is not another choice, as they often lead to barriers that make it more difficult to exit homelessness. These efforts, they say, are also more costly for taxpayers.

Since the court granted the appeal in January, dozens of additional briefs have been filed with the high court by advocates, business groups and other parties at all levels of government — each with a different opinion on how the court should rule in Grants Pass v. Johnson.

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In its amicus brief filed on March 4 in support of neither party, the Department of Justice agreed in part with the 9th Circuit’s ruling, saying it believed the court was correct in finding enforcement of anti-camping ordinances unconstitutional when there is not enough shelter space.

Where the court erred, DOJ officials argued, was applying the decision to all unhoused people “without requiring a more particularized inquiry into the circumstances of the individuals to whom those ordinances may be applied.”

They pointed to the court’s decision to decline discussion about what conditions are necessary for an individual to be considered “involuntarily homeless” — a term originating from Martin v. Boise to describe an unhoused person who does not have access to another alternative.

The DOJ suggests the Supreme Court narrowly correct this issue and vacate the 9th Circuit’s judgement in Grants Pass before remanding it back to lower courts for further consideration.

However, six members of Congress, who similarly filed a brief earlier this month, supported a more sweeping decision by the justices in Grants Pass v. Johnson. Among the House members included in the brief was Rep. Darrell Issa (R-San Diego) and Rep. Clifford Benz (R-Grants Pass).

In their brief, the members said the 9th Circuit’s decision should be reversed in its entirety to “ensure local municipalities are full able to combat the crime that inevitably results from unrestricted homeless encampments.”

They further argue the decisions by the Supreme Court “effectively usurped the policymaking authority” of local and state governments on the issue of homelessness.

FOX 5 reached out to Issa’s office for a statement on the brief and is awaiting response as of Monday afternoon.

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This association between homelessness and crime has been well-established, although it is often not as straightforward as some may believe.

Some studies have attributed this link in part to “homeless status offenses,” or minor offenses like “loitering,” “trespassing” or violating a camping ban that are often unavoidable given the nature of being homeless. Local data on homeless crime has also been found on occasion to tangle unhoused victims with perpetrators, inflating numbers.

In an updated brief filed earlier this month, San Diego County District Attorney Summer Stephan appeared to throw enforcement of arson laws into the mix of “status offenses,” arguing that Martin could be read in a way that would limit authorities’ ability to crack down on use of devices for cooking or warmth in encampments to prevent wildfires or prosecute for arson.

“Will officers be subject to civil liability for attempting to enforce arson statutes where the reason for the fire was the unavoidable activity of preparing food for consumption or rudimentary protection from the elements faced by unsheltered individuals?” Stephan writes.

She also reasserted her argument from a filing before the justices granted the city of Grants Pass its appeal: that health and safety concerns are harder to address under the court’s ruling. She is also asking the court to overturn it in its entirety.

This broad overturning appears to break from what other San Diego officials were hoping to get out of a ruling from the Supreme Court.

While he hinted at that possible outcome, San Diego Mayor Todd Gloria told FOX 5 last September that he was hoping for a ruling that would give some “certainty of what expectations of cities are,” but shied away from saying outright he wanted Martin overturned entirely.

“Hopefully, those expectations are set by the localities themselves,” he said. “What we are hoping for is a ruling that would say cities can continue their enforcement efforts, obviously doing those in the most compassionate ways — the ways that follow best practices and formed by the experiences of those who have lived on our streets.”

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At this point, it is unclear what types of arguments the justices may be receptive to with regards to the constitutional questions at the center of the case.

Both sides will likely come down to different interpretations of the “text, history and tradition of the Eighth Amendment,” according to legal analysts. How the right to due process under the Fourteenth Amendment plays into enforcement will also be an important question for the court.

Arguments for the case are scheduled for Apr. 22. The Supreme Court is then expected to hand down a decision sometime in June.

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