According to the federal Department of Housing and Urban Development, homelessness in the United States is at its highest levels since the agency first started tracking the issue. The number of homeless encampments is the highest it has been in almost a century.
Inhabitants of these encampments face heightened risk of becoming victims of sexual assault, human trafficking, and gun violence. Dangerous and lethal drugs such as heroin and fentanyl are prevalent at these camps where, by some estimates, nearly three-fourths of the inhabitants are experiencing drug addiction. These camps have poor sanitation, causing the reemergence and spread of diseases such as typhus and trench fever. Human waste and used needles are often left on sidewalks. Many times, these encampments become established in a city’s poorer neighborhoods, causing the economically disadvantaged to disproportionately bear their negative effects.
Even when cities have available bedspaces in shelters, homeless individuals often refuse them. For example, in the cities of Seattle, Washington, and Portland, Oregon, officials determined that, when offered shelter, approximately two of every three homeless individuals rejected the offer.
One way cities encourage homeless individuals to accept bedspaces in shelters, drug treatment facilities, or mental health facilities is to pass ordinances that prevent the establishment of these encampments and give law enforcement officers authority to clear them when they arise—especially those encampments that create significant health and safety concerns to their inhabitants and those who live nearby.
Recently, homeless individuals sued in federal court, claiming a city’s ordinances against public camping violated their Eighth Amendment right to be free from cruel and unusual punishment. They argued that the ordinances punished them for their status of being homeless.
However, the United States Supreme Court disagreed. In the case of City of Grants Pass v. Johnson, 144 S. Ct. 2202 (2024), the Court said the ordinances did not punish the individuals for their status of being homeless. The ordinances applied equally to everyone, regardless of the person’s status—it made no difference whether the violator was a backpacker passing through town, a protesting college student, or a homeless individual. Instead, the ordinances punished the action of illegally camping on public land.
Because violations of these ordinances are based on a person’s actions, not a person’s status, they do not violate the Eighth Amendment. Therefore, police officers do not violate the Eighth Amendment when they enforce these ordinances.
This did not entirely settle the constitutionality of clearing homeless encampments. Some homeless individuals have argued that peace officers violate their Fifth Amendment right to due process and their Fourth Amendment right to be free from unreasonable seizures when officers clear these camps. The caselaw is still developing in this area; however, some decisions suggest that if officers provide proper notice that the encampment will be cleared, the officers probably do not violate these rights when they return to clear the encampment and dispose of the property left on the public land. Whether the notice is sufficient can vary depending on the circumstances confronting the officers. Law enforcement officers are encouraged to consult with their county attorney before taking action to remove a homeless encampment.
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