City of Tacoma criticized for taking sides in Supreme Court case over public camping laws
The City of Tacoma’s participation in an upcoming Supreme Court case that will have major implications on local governments’ rights to police public camping has riled at least one local advocacy group.
In September 2023, the city signed on to a brief in the case that argues municipalities should have leeway to enforce bans on camping in public spaces.
A spokesperson for the Tacoma/Pierce County Coalition to End Homelessness told The News Tribune earlier this month that the city’s position was in “opposition to the stated goals of Tacoma’s own strategy to address homelessness.” Rob Huff argued that neither housing availability nor the other conditions cited in the city’s Homeless Strategy would be addressed by imposing fines or jail time on people living unhoused.
Now, the city says it is not taking a position on the issue to be addressed in legal case, Johnson v. Grants Pass.
On April 22, 2024, the U.S. Supreme Court will hear arguments in the case, which centers on a city’s right to enforce a ban on public camping before first offering shelter beds to those sleeping in public.
An Amicus Curiae brief written in support of “a town’s power to keep the town square open” was sent to the U.S. Supreme Court by the International Municipal Lawyers Association, the National Association of Counties, and city attorneys of over a dozen cities, including Seattle, Spokane and Tacoma.
The brief was also made on behalf of the National League of Cities, for which Tacoma Mayor Victoria Woodards currently serves on the board of directors as the immediate past president.
The brief, which was co-signed by William Fosbre, Tacoma’s city attorney at the time, made several arguments in favor of the power of local governments, including that prohibiting a local government from regulating camping on public property would “handcuff” cities and counties, depriving them of their most basic legislative and policing powers.
In the brief, representatives of city and county governments argued that the court’s previous decision on Johnson v. Grants Pass, which ruled that a local government’s ability to enforce a camping ban had to be contingent on there being shelter available as an alternative, “paralyzed” local communities’ ability to address a complex issue that requires nuanced, multi-faceted solutions.
“It also presupposes that temporary shelter beds are the solution to homelessness, channeling local resources away from longer-term solutions like permanent supportive housing, mental healthcare, drug rehabilitation, and low-income housing support,” the amicus brief states. “The social complexities of homelessness defy this compulsory one-dimensional response.”
In addition, the authors of the brief argued that the available-shelter measurement was “unworkable,” as getting people out of a situation of homelessness is not always as simple as “providing an alternative place to go.”
The brief’s author’s cited data from a report given by Seattle’s Homelessness Outreach and Provider Ecosystem team, which reported referring 1,072 people to a shelter in 2021. Of those, 512 people reportedly accepted the offer and stayed at a shelter for at least one night.
As part of the reporting for this story, The News Tribune asked the city if it supports a local government’s right to enforce policies that prohibit public encampments and the arguments made in the amicus brief. City spokesperson Maria Lee seemed to suggest the city is now neutral on the issue.
“While the City Attorney, on behalf of the City of Tacoma, joined in an amicus brief seeking review of the Ninth Circuit’s decision, we have declined to join in any of the amicus briefs that have now been filed on the substantive issues to be decided by the Court,” Lee wrote in an email to The News Tribune. “So while the City of Tacoma is on record as asking for U.S. Supreme Court review, the City of Tacoma has not, and will not, take a position on the issues before the Supreme Court.”
Fosbre retired from his position as city attorney nearly a month after the amicus brief was filed.
The case before the Supreme Court
The Johnson v. Grants Pass case originates from Grants Pass, Oregon, a town of roughly 39,000 people. After the city passed policies to penalize public campers, a lawsuit was filed in 2018 on behalf of homeless people in the area. The suit alleged that “the City of Grants Pass has a web of ordinances, customs, and practices that, in combination, punish people based on their status of being involuntarily homeless.”
In that case, Mark D. Clarke, federal judge for the U.S. District Court for the District of Oregon, ruled that because Grants Pass lacks adequate shelter for its homeless population, it could not punish people who have no access to shelter for the act of sleeping or resting outside as it would be a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment.
“Let us not forget that homeless individuals are citizens just as much as those fortunate enough to have a secure living space,” Clarke wrote at the end of his opinion.
The city appealed the decision to the Ninth Circuit Court of Appeals. The legal question petitioned: “Does the enforcement of generally applicable laws regulating camping on public property constitute “cruel and unusual punishment” prohibited by the Eighth Amendment?”
The Ninth Circuit Court of Appeals upheld the lower court’s ruling.
On Aug. 22, 2023, Grants Pass appealed to the U.S. Supreme Court, before the high court agreed to hear the case less than five months later.
Local homelessness advocacy group’s concerns
On March 26, Huff wrote a letter addressed to Woodard and the members of the Tacoma City Council in opposition to the brief and its central arguments, as a spokesperson for the Tacoma/Pierce County Coalition to End Homelessness, a coalition of government and non-government organizations working towards solutions to homelessness.
“As constituents of a progressive city, we are astounded to see that Tacoma signed on to the amici curiae in support of Grants Pass,” Huff wrote. “Constituents – particularly those most affected by the loss of protections – were not informed of these briefs put forward by our representatives and we were certainly not provided an opportunity for public comment.”
Huff wrote on behalf of the The Tacoma Pierce County Coalition to End Homelessness, saying the organization is opposed to criminalizing homelessness on both humanitarian and practical grounds.
“Neither our low housing supply nor the other conditions cited in the Homeless Strategy will be solved by putting more people in jail or imposing fines on the poorest citizens in our city,” he wrote. “The solution to homelessness is attainable housing for everyone.”
Tacoma has its own public camping ban.
Tacoma Municipal Code 8.19, passed in October 2022, prohibits camping and the storage of personal belongings in a 10-block radius around temporary shelters and all public property within 200 feet of Tacoma’s rivers, waterways, creeks, streams, and shorelines. Under the ordinance, violators face fines of up to $250 and up to 30 days of imprisonment
According to data reported during the City Council’s quarterly homeless strategy update on March 5, 229 encampments and over 1.7 million pounds of encampment-related debris have been removed since the ordinance was implemented, with reportedly no citations issued or arrests performed.
“Per council directive, the team continues to provide the least restrictive enforcement methods as possible with regards to encampment removals within the boundaries. This means to date there have been no citations, infractions or fines issued as a result of TMC 8.19,” the council was told by neighborhood and Community Services Department staff during their March 5 study session.
The report also showed that the city has made contact with 3,626 unhoused people during the same time period, with 53% percent of them indicating interest in services and 10% placed in shelter.
In an interview, Huff called the City of Tacoma’s version of a camping ban a “short-sighted,” “cynical” policy that allows for harassment of citizens characterized by homelessness. For Huff, enforcement of that type of policy only means the displacement of the unhoused from one part of the city, to the other, with no real sustainable housing solution.
“It may give residents the perception that something is being done,” Huff said, but it is a “revolving door.”
The News Tribune asked Huff what the city should do about individuals who deny offers of shelter.
Huff said people refuse shelters for all sorts of valid reasons. He gave as examples couples who refuse shelter because they would not be allowed to stay together, people whose pets would not be allowed, and people with mobility issues who cannot be accommodated.
That idea is echoed in the amicus brief originally signed onto by the city of Tacoma:
“A person’s reasons for declining shelter will vary by individual and circumstance but can include such factors as policies prohibiting pets or drugs, uncomfortable congregate sleeping arrangements, theft of personal belongings, in-out schedules, physical violence, and the lack of private accommodations for couples. These reasons are not irrational.”
Huff believes a better solution would be to not only have more shelter capacity but to also have shelter “across the continuum” to better fit the broad spectrum of peoples’ needs.
This story was originally published April 15, 2024 at 5:00 AM.
