Should Homelessness be a Crime? New San Mateo County Law Allows Charges, but SCOTUS May Get the Last Word

The county of San Mateo on Jan. 23 made it a crime for unhoused homeless persons to refuse shelter, if they’re offered it twice. The Board of Supervisors there said that the new ordinance, to which they gave the sunny title “Hopeful Horizons: Empowering Lives Initiative,” was not designed to “criminalize” homelessness, but rather “to encourage our neighbors experiencing homelessness to accept our offers of shelter and support.”

The San Mateo County ordinance makes it a misdemeanor simply to live outside in a tent or camp, albeit only under certain, specific conditions.

The law may signal a coming trend in which homelessness is treated less as a social issue and more as a law enforcement matter—a trend that could hit the fast track depending on the outcome of a case on the issue now under consideration by the United States Supreme Court.

Certain types of crimes, known as “homeless status offenses,” already exist and are, according to a 2018 study, the crimes for which unhoused, unsheltered persons are most frequently charged. They include such offenses as “loitering” and “vagrancy”—offenses which the authors of the study published in the Annals of Clinical Psychiatry call “behaviors intrinsic to homelessness.”

But the San Mateo County ordinance makes it a misdemeanor simply to live outside in a tent or camp, albeit only under certain, specific conditions.

The Trend of Criminalizing Homelessness

By imposing misdemeanor charges on homeless people who choose to live on the street rather than in available shelters, the San Mateo law appears to go farther than similar laws in other California jurisdictions. In 2022, the city of Sacramento passed a set of ordinances against blocking the sidewalk along American River Parkway and certain other areas of “critical infrastructure.” Setting up a tent or other “camp” on those sidewalks was designated a misdemeanor criminal offense.

It’s not only in California that a criminal justice approach to homelessness is on the horizon. The Kentucky state legislature is now weighing a bill that makes it legal for property owners to use physical force against homeless individuals they believe to be engaged in “unlawful camping.”

Los Angeles in 2021 passed a ban on homeless encampments in 54 designated areas mostly around parks, libraries and other public gathering areas. But Los Angeles does not treat violations of the law as a criminal misdemeanor but merely an infraction, requiring no more than a citation, unless an individual willfully resisted enforcement of the ban.

It’s not only in California that a criminal justice approach to homelessness is on the horizon. The Kentucky state legislature is now weighing a sprawling crime bill that not only stiffens penalties for some types of living outdoors, but makes it legal for property owners to use physical force against homeless individuals they believe to be engaged in “unlawful camping.”

The new San Mateo law applies only in the county’s unincorporated areas, and requires that an unsheltered, homeless individual must receive two warnings before being charged with a misdemeanor offense. But even if the person refuses to accept an offer of shelter after two requests, that individual still may not be criminally charged unless there is a shelter bed available at the time of the person’s refusal.

According to the Menlo Park news site The Almanac, San Mateo County’s unincorporated areas have only 30 shelter beds, and about 44 people living outdoors in unhoused conditions.

Homelessness and the Ninth Circuit

But it is a case out of Oregon, City of Grants Pass v. Gloria Johnson, that may end up setting the legal template for whether or not homeless people can be charged with crimes for simply existing in public outdoor spaces—a case that will have direct and potentially drastic consequences for California’s homelessness crisis.

The arrests, the Ninth Circuit ruled, constituted “cruel and unusual punishment,” because Los Angeles lacked an adequate supply of shelter beds and as a result, the homeless had no alternative but to sleep on sidewalks.

The U.S. Supreme Court decided to on Jan. 12 to hear the case. But criminalizing homelessness has reached the federal courts before. The Ninth Circuit Court of Appeals, which covers most cases on the West Coast, has issued a series of decisions that have frustrated local governments, but cheered homeless advocates.

In 2006, the Ninth Circuit sided with homeless residents of Skid Row in Los Angeles who sued that city to stop police from arresting them for homeless status offenses. The federal court ruled at that time that arrests of homeless people for nothing more than sleeping on the sidewalk actually violated the Eighth Amendment to the U.S. Constitution. 

The arrests, the Ninth Circuit ruled, constituted “cruel and unusual punishment,” because Los Angeles lacked an adequate supply of shelter beds and as a result, the homeless had no alternative but to sleep on sidewalks.

In 2018, the Ninth Circuit, in a case originating in Boise, Idaho, ruled again that a law allowing prosecution of people for sleeping in sidewalks “violates the 8th Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors on public property, when no alternative shelter is available to them.” 

That case, Martin v. Boise, was appealed to the Supreme Court where justices, without any public comment, declined to hear it.

And on Jan 11, 2024, the Ninth Circuit upheld a lower court’s order prohibiting San Francisco from ordering that homeless encampment be cleared out. In its ruling, the Ninth Circuit justices clarified that its decisions in the homeless cases applied only to people who are “involuntarily homeless,” meaning those for whom other sheltering arrangements were not available.

SCOTUS Will Finally Decide the Homeless Criminalization Issue

The Grants Pass v. Johnson case is one of several throughout the west inspired by the success of Martin v. Boise. Grants Pass, a southern Oregon city of fewer than 40,000 people, had an ordinance that imposed civil citations against homeless people for camping in public spaces. Two homeless residents, Gloria Johnson and John Logan, sued, asserting that the civil fines amounted to “punishing the city’s involuntarily homeless residents for their existence.”

“The tragedy is that these decisions are actually harming the very people they purport to protect.”

THEANE EVANGELIS, LAWYER FOR GRANTS PASS

Once again, the Ninth Circuit agreed, after a lower court also sided with the homeless plaintiffs. Grants Pass appealed to the Supreme Court, saying that with the entire West Coast facing essentially a humanitarian crisis of homelessness, a ruling from the high court was necessary to settle the issue.

“The tragedy is that these decisions are actually harming the very people they purport to protect,” a lawyer for the Oregon city, Theane Evangelis, said in a Jan. 12 statement.

But a lawyer for the homeless people suing the city said that the laws were essentially designed to run her clients out of town.

“Given the universal biological necessity of sleeping and of using a blanket to survive in cold weather, the city’s enforcement of its ordinances meant that its homeless residents could not remain within city limits without facing punishment,” Kelsi Brown Corkran of the Institute for Constitutional Advocacy.

Decision Could Reshape Government Homelessness Strategy

Whatever the Supreme Court decides, the justices appear likely to have a sweeping effect on how cities, counties and even state governments try to solve the problem of homelessness. According to the National Alliance to End Homelessness, a ruling in the plaintiffs favor would “affirm that everyone in the community is valued, and that the legitimate role of local government is to make room for everyone, in decent conditions, not pick out certain people to lock up or drive out.”

“I see that either way, whether we win, lose, or they don’t even hear it or whatever, I think we’re going to need shelter in this town.”

SARA BRISTOL, MAYOR OF GRANTS PASS

A decision for the city, according to the advocacy group, would only make the homeless problem worse.

“Allowing unsheltered homelessness to be a crime, even when there is no shelter, would mean more people with criminal records,” the National Alliance to End Homelessness said in an online statement, “making it harder to get a job, harder to rent an apartment, and harder to have time to address barriers when life is filled with court appearances and jail time.”

The mayor of Grants Pass, Sara Bristol, told Oregon Public Broadcasting that whatever the Supreme Court decides, the most fundamental problems will remain.

“I guess I’m not sure what the desired result is even for that case,” Bristol told OPB.  “I see that either way, whether we win, lose, or they don’t even hear it or whatever, I think we’re going to need shelter in this town.”

In its announcement that it would decide the Grants Pass case, the Supreme Court gave no timetable for when it would take arguments or hand down its final ruling.