September 2024 – Parks & Recreation - 32

LAW REVIEW
The
Supreme
Court further
found " States and cities are free as
well to add additional substantive
protections " for unsheltered homeless
individuals effectively " camping "
in public parks and spaces:
Since this litigation began, for
example, Oregon itself has adopted
a law specifically addressing
how far its municipalities may go
in regulating public camping. For
that matter, nothing in today's decision
prevents States, cities, and
counties from going a step further
and declining to criminalize public
camping altogether. All this
represents only a small sample of
the legion protections our society
affords a presumptively free individual
from a criminal conviction.
Judicial Homeless Policy?
In the opinion of the Supreme Court,
Martin's application of the Eighth
Amendment's Cruel and Unusual
Punishments Clause to address the
problem of homeless encampments
in public parks and spaces would
effectively freeze public policy into
" a rigid constitutional mold " dictated
by the " judicially preferred approach "
by individual federal judges.
In the opinion of the Court, the
Ninth Circuit's " Martin experiment "
exemplified " much of what can go
wrong when courts try to resolve matters
like those unmoored from any secure
guidance in the Constitution " :
Under Martin, cities must allow
public camping by those who
are " involuntarily " homeless. But
how are city officials and law enforcement
officers to know what it
means to be " involuntarily " homeless,
or whether any particular person
meets that standard?
Is it enough that a homeless person
has turned down an offer of
shelter? Or does it matter why? Cities
routinely confront individuals
who decline offers of shelter for any
number of reasons, ranging from
safety concerns to individual preferences.
How are cities and their law
enforcement officers on the ground
to know which of these reasons are
sufficiently weighty to qualify a person
as " involuntarily " homeless?
In the opinion of the Court, answers
to those public policy questions
" cannot be found in the Cruel
and Unusual Punishments Clause "
of the Eighth Amendment and federal
judges do not " enjoy any special
competence to provide them. "
Defining " Involuntarily
Homeless "
According to the Supreme Court,
cities across the West had reported
the Ninth Circuit's " ill-defined
involuntariness test " in Martin had
proven " unworkable, " leaving cities
" with little or no direction as to
the scope of their authority in their
day-to-day policing contacts. "
As described by the Court, the
applied
" involuntariness
test "
in
Martin had said " a city needs to
consider individuals 'involuntarily'
homeless (and thus entitled to camp
on public property) only when the
overall homeless population exceeds
the total number of 'adequate' and
'practically available' shelter beds. "
The Court further noted the Martin
test for involuntary homelessness
had " proven all but impossible to
administer in practice " for city officials
" to keep an accurate accounting
of those experiencing homelessness
on any given day " :
Often, a city's homeless population
fluctuates dramatically, in part
because homelessness is an inherently
dynamic status. While cities
32 Parks & Recreation | SEP T EMBER 2 0 2 4 | PARK S ANDRECRE AT ION . OR G
sometimes make rough estimates
based on a single point-in-time
count, they say it would be impossibly
expensive and difficult to undertake
that effort with any regularity.
Adequate Shelter Beds?
Assuming " even large cities could
keep a running tally of their homeless
citizens " and " could keep a
live inventory of available shelter
beds, " the Court found cities would
still face questions " over which
shelter beds count as 'adequate'
and 'available' under Martin " :
Is a bed " available " to a smoker
if the shelter requires residents to
abstain from nicotine, as the shelter
in Grants Pass does? Is a bed " available "
to an atheist if the shelter includes
" religious " messaging? And
how is a city to know whether the accommodations
it provides will prove
" adequate " in later litigation?
Once more, a large number of
cities in the Ninth Circuit tell us
they have no way to be sure. What
may be available, appropriate, or
actually beneficial to one homeless
person, might not be so to another.
In addition, the Supreme Court
noted the Ninth Circuit in Martin
had held that " involuntarily homeless
individuals cannot be punished
for camping with materials necessary
to protect themselves from the
elements. " Moreover, the Court
found Martin would not allow cities
to " proscribe life-sustaining acts that
flow necessarily from homelessness. "
While Plaintiffs had suggested that
" a blanket is all that is required in
Grants Pass, " the Court questioned
whether " a colder climate " might
" trigger a right to permanent tent encampments
and fires for warmth " :
Because the contours of this
judicial right are so " uncertain, "
September 2024 – Parks & Recreation

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