SEATTLE — Experts predict that if the U.S. Supreme Court overturns protections for homeless people in Hawaii, many areas will follow with harsher penalties for people living outside in tents, tarps and in vehicles.
Cities could continue to operate as they do now, offering forms of shelter or housing to people living outside before telling them to leave an encampment.
At the most extreme, experts say, municipalities could have a blank slate to fine, fee and arrest homeless people for living within its borders without having to offer them anything in return.
“It’s just going to be kind of a race to the bottom,” said Eric Tars, senior policy director at the National Homelessness Law Center.
Even now, some cities also impacted by the decision are testing the limits on how much they can legally restrict public camping. And there are a few state lawsuits against both municipalities’ camping bans that, if successful, could offer guardrails on how far cities can go, even if federal protections disappear, or potentially establish greater protections for homeless people compared with the rest of the country.
The 9th U.S. Circuit Court ruled in 2018 in Martin v. Boise that the government cannot arrest people for living outdoors if a jurisdiction doesn’t have adequate shelter and housing available. The same court followed with a decision that extended the logic to levying fines and fees against people using blankets to sleep outside.
The U.S. Supreme Court heard that case, Johnson v. Grants Pass, Ore., in April 2024, and could issue a decision as soon as this week.
West Coast officials, both Republican and Democratic, have rallied against these rulings in recent months, saying they impede cities from cleaning up streets and parks, limit public safety efforts and cause housed residents and business owners distress.
Hawaii is like most 9th Circuit states that have continued forcing people from encampments after Martin v. Boise took effect in 2019.
“It was never the case that the local jurisdictions had to let people sleep anywhere they want, or at any time they want, or with whatever protection from the elements they want. That so-called ‘right’ never existed in the first place,” said Gary Blasi, professor of law emeritus, UCLA School of Law.
Blasi has studied housing and homelessness for about 50 years and said if the Supreme Court overturns Grants Pass it is likely to return to practices back then. The political atmosphere around homelessness, especially visible homelessness, is at a high tenor as more people are losing their housing in the midst of ever-rising rents and with limited treatment options for people experiencing substance-use disorder and mental illness — leaving more and more to suffer in public view.
Hawaii, California, Oregon and Washington have invested billions of dollars into shelter and housing in recent years, Tars said, and Martin v. Boise deserves some of that credit.
But if Johnson v. Grants Pass is rolled back, it could potentially eliminate the legal incentive to add more shelters, Tars and other legal experts fear.
“We’re gonna see more investment in policing approaches that don’t work and less investments in the shelter and housing that we need to actually end this crisis,” Tars said.
Currently, homeless people living outside the 9th Circuit Court’s reach — in 41 other states — do not experience any legal protections, allowing cities to set whatever limits they choose.
An overturn would change little in those states. But if the court affirms Johnson v. Grants Pass, it could set unprecedented federal protections for all homeless people in the country.