‘Sweeps Kill’: Bay Area Homeless Advocates Weigh in on Pivotal US Supreme Court Case

Around 100 people marched from San Francisco’s federal building to City Hall on Monday, urging the U.S. Supreme Court to uphold lower court rulings on how cities can respond to homelessness.

The action came as SCOTUS heard oral arguments in the City of Grants Pass, Oregon v. Gloria Johnson. The decision — which is expected by the end of June — is likely to impact whether cities around the country can issue fines and jail people for camping on public property if there isn’t a viable shelter alternative available.

“We’re here to stop the illegal pushing and shoving of the homeless,” said LaMonte Ford, who is currently unhoused. “It really hurts to think that your existence is now against the law, so we are all here to assemble against that.”

Ford previously lived at the Wood Street Commons, a large encampment in West Oakland that the city cleared in 2023. He said the community sustained him for years while he could not afford rent.

“It felt like somebody was ripping my mother away from me,” Ford said of the encampment sweep.

“It’s all we have. We have to exist in some kind of way,” he added. “Sweeps kill.”

The High Court is specifically reviewing a lower court’s decision, upheld by the Ninth Circuit Court of Appeals, that bars cities across the Western United States from criminalizing people for sleeping outside if no viable shelter options are available. Doing so, the lower court ruled, would be considered cruel and unusual punishment, violating the Constitution’s Eighth Amendment.

Officials from across the political map, from Gov. Gavin Newsom to conservative state political leaders, joined in asking the Supreme Court to take up the case and clarify how much authority local leaders have to clear encampments.

After over two and a half hours of argument, the court appeared divided along ideological lines, but the majority of justices indicated they consider local officials to be better equipped than the courts to take on these matters — a sign they may be leaning toward giving Grants Pass and other cities broader authority to regulate homelessness.

Still, the liberal justices were deeply skeptical of the constitutionality of the city’s policies, suggesting that it criminalized people for simply being unhoused.

“Where do we put them? If every city, every village, every town lacks compassion and passes a law identical to this — where are they supposed to sleep? Are they supposed to kill themselves not sleeping?” Justice Sonia Sotomayor asked the attorney representing the city of Grants Pass.

Advocates for the unhoused found reason to be optimistic, pointing out that conservative Justice Brett Kavanaugh’s questions indicated that he believes jailing people can’t solve homelessness.

“Every single time a court has heard this question, they’ve agreed that punishing people for sleeping outside when they have nowhere else to go is cruel and unusual,” said Jesse Rabinowitz, a spokesperson for the National Homelessness Law Center. “So, we remain hopeful that the Supreme Court will do the right thing and agree with all of the lower courts’ decisions and affirm that everybody, regardless of housing status, is protected by the Constitution.”

Groups like the American Psychiatric Association support that position. In a brief submitted to the court, the medical group wrote, “People with mental illness experiencing homelessness already face various barriers to accessing mental health treatment; incarceration exacerbates these barriers.”

However, opponents of the previous courts’ rulings argue that fines and short jail stints are a reasonable response when someone violates city laws by camping in public spaces.

“Those punishments are neither ‘cruel’ nor ‘unusual’ in any ordinary sense of those words,” attorneys for the city of Grants Pass wrote in a brief. “For centuries, fines and imprisonment have been the default methods of punishing criminal offenses.”

In California, Newsom and San Francisco Mayor London Breed have taken a more neutral position. They say that local governments shouldn’t criminalize people for being unhoused but also argue that the Ninth Circuit’s ruling goes too far, stymying cities’ ability to clear sidewalks, parks and other public spaces of tents and serious public health hazards.

“The courts have tied the hands of state & local government to confront homelessness,” Newsom said on X, formerly Twitter, on Monday. “The Supreme Court has an opportunity to strike a balance that allows officials to enforce reasonable limits on public camping while treating folks with compassion.”

In San Francisco, city workers must first offer shelter to unhoused people before clearing encampments. If someone is not at an encampment during a sweep, the city must “bag-and-tag” that person’s items to give them a chance to pick them up later.

The Coalition on Homelessness sued San Francisco in 2023 for failing to adhere to those rules. That case is still pending, but any further legal action is paused until the Supreme Court rules on the Grant Pass case.

“We gathered a mountain of evidence,” Jennifer Friedenbach, director of the Coalition on Homelessness, said at Monday’s march. “People are still having their property destroyed and forced to move when they don’t have a place to go.”

Attorney Nisha Kashyap of the Lawyers’ Committee of Civil Rights of the San Francisco Bay Area, who’s working on the case against San Francisco, said the litigation will go forward regardless of how the Supreme Court rules on Grants Pass.

“The case against the city of San Francisco is much broader than just the question before the U.S. Supreme Court today,” she said, noting that only one of the 13 claims in the suit involves the Eighth Amendment question.

In a statement, San Francisco City Attorney David Chiu took pains to differentiate the city’s approach to homelessness from that of Grants Pass.

“Unlike Grants Pass, San Francisco has invested billions of dollars in our compassionate approach to addressing homelessness, and our laws have reasonable time, place, and manner restrictions,” he said. “The justices asked a number of thoughtful questions today. The complexity of their questions underscore the difficult and numerous decisions our city workers have to make on the ground every day.”

Talya Husbands-Hankin, founder of the homeless advocacy organization, Love and Justice in the Streets, called Grants Pass “the most significant case on homelessness in over 40 years.”

“It’s very frightening, and it’s another level of taking away rights,” she said.

Advocates with her organization are working with about 25 unhoused people living in an encampment at Mosswood Park in Oakland, which the city plans to clear this week. She said that while the city offers shelter options, the offerings are inadequate and not a long-term solution to homelessness.

“The shelter that the city is currently offering is not something people can always accept. You can’t take your pets, and it’s short-term,” Husbands-Hankin said.

Meanwhile, in San Francisco — and across California — the number of unhoused people continues to outpace affordable housing inventory and shelter resources.

In 2022, the most recent citywide data available, San Francisco, tallied nearly 4,400 people without shelter. However, the city lacks enough affordable housing or temporary shelter options to accommodate those who need it. On Monday, 173 people were on the city’s online shelter reservation waitlist.

“Many of us feel strongly that mere shelter referrals were inadequate, but it is what the courts ruled, and now even this Eighth Amendment protection is threatened,” said Paul Boden, executive director of the Western Regional Advocacy Project. “We should be talking about housing — not shelter — when it comes to addressing mass contemporary homelessness.”