Supreme Court’s homelessness decisions’ impacts in Washington could be unique

SEATTLE — Experts predict that if the U.S. Supreme Court overturns protections for homeless people on the West Coast, many cities will follow with harsher penalties for people living outside in tents, tarps and in vehicles.

Cities could continue to operate as they do now, offering forms of shelter or housing to people living outside before telling them to leave an encampment. Seattle says it will be one of them.

At the most extreme, experts say, municipalities could have a blank slate to fine, fee and arrest homeless people for living within its borders without having to offer them anything in return.

“It’s just going to be kind of a race to the bottom,” said Eric Tars, senior policy director at the National Homelessness Law Center.

Even now, some cities in Washington, such as Burien and Spokane, are testing the limits on how much they can legally restrict public camping. And there are a few state lawsuits against both municipalities’ camping bans that, if successful, could offer guardrails on how far cities can go, even if federal protections disappear, or potentially establish greater protections for homeless people in Washington compared with the rest of the country.

The 9th U.S. Circuit Court ruled in 2018 in Martin v. Boise that the government cannot arrest people for living outdoors if a jurisdiction doesn’t have adequate shelter and housing available. The same court followed with a decision that extended the logic to levying fines and fees against people using blankets to sleep outside.

The U.S. Supreme Court heard that case, Johnson v. Grants Pass, Ore., in April 2024, and could issue a decision as soon as this week.

West Coast officials, both Republican and Democratic, have rallied against these rulings in recent months, saying they impede cities from cleaning up streets and parks, limit public safety efforts and cause housed residents and business owners distress.

Seattle’s City Attorney Ann Davison submitted an amicus brief in favor of the court hearing the case. She wrote that Grants Pass and Martin v. Boise “have paralyzed local communities’ ability to address it (homelessness) in the places where it is most acute.”

Seattle removed thousands of homeless tents in 2023, but only 16% of people living in city-removed encampments last year entered a shelter immediately after. This means that the vast majority of people were shuffled from one outdoor location to the next.

There is no data on how long people stay in shelter after entering.

“We don’t believe the Supreme Court decision will impact our approach to resolving encampments as we lead with offering shelter and services,” said Callie Craighead, spokesperson for Seattle Mayor Bruce Harrell.

Seattle is like most West Coast cities that have continued forcing people from encampments after Martin v. Boise took effect in 2019.

“It was never the case that the local jurisdictions had to let people sleep anywhere they want, or at any time they want, or with whatever protection from the elements they want. That so-called ‘right’ never existed in the first place,” said Gary Blasi, professor of law emeritus, UCLA School of Law.

Blasi has studied housing and homelessness for about 50 years and said if the Supreme Court overturns Grants Pass it is likely to return to practices back then. The political atmosphere around homelessness, especially visible homelessness, is at a high tenor as more people are losing their housing in the midst of ever-rising rents and with limited treatment options for people experiencing substance-use disorder and mental illness — leaving more and more to suffer in public view.

California, Oregon and Washington have invested billions of dollars into shelter and housing in recent years, Tars said, and Martin v. Boise deserves some of that credit.

But if Johnson v. Grants Pass is rolled back, it could potentially eliminate the legal incentive to add more shelters, Tars and other legal experts fear.

“We’re gonna see more investment in policing approaches that don’t work and less investments in the shelter and housing that we need to actually end this crisis,” Tars said.

That could be one of the most likely impacts for Washington cities.

The city of Burien, for example, has gradually tightened its camping ordinance from only barring overnight camping in public parks to designing one of the most restrictive in the state, creating “buffer” zones that prevent people from sleeping within 500 feet of schools, libraries, child care centers and more.

At the same time, the city has little shelter to offer a growing population of people living outside, and has resisted building more — even with King County offering $1 million to do it.

So far, Burien’s most stringent restrictions have yet to be enforced because the King County Sheriff’s Office, which provides law enforcement for the South King County city, has questioned the ordinance’s constitutionality under Martin v. Boise and asked a federal judge to decide its legality.

The U.S. District Court court has yet to make a judgment.

Burien’s ordinance is also being challenged in state court, raising more possibilities about what a federal ruling could mean.

Three homeless people and the Seattle / King County Coalition on Homelessness are suing Burien in King County Superior Court on the grounds that its camping ordinance violates Washington’s constitution, claiming the ordinance “banishes” homeless people and inflicts “cruel punishment.”

“It is really important to understand that government-imposed cruelty can still be prohibited under state law, especially state constitutions which are often more protective than the federal Constitution,” said Sara Rankin, professor at Seattle University’s school of law.

Across the state, Spokane also tried to institute buffer zones, like Burien. But theirs were approved by voters on last year’s November ballot measure. The measure bans camping within 1,000 feet of schools, day care facilities, parks and playgrounds — and garnered broad public support.

Spokane’s Police Department has yet to apply the new law, according to The Spokesman-Review, as the city faces its own court battle.

This month, the Washington Supreme Court agreed to take up a case against the measure, called Proposition One, according to the Washington State Standard.

But this case’s argument has nothing to do with federal protections for homeless people; rather it argues that the measure should have never been placed on the ballot because it goes beyond the scope of what a voter-approved initiative can do.

So while Burien and Spokane have shown their residents and city leaders might welcome more freedom to implement harsher policies on people sleeping outside, their implementation might not be as straightforward as a federal Supreme Court ruling.

Outside of Washington, the ruling carries similar nuance.

Currently, homeless people living outside the 9th Circuit Court’s reach — in 41 other states — do not experience any legal protections, allowing cities to set whatever limits they choose.

An overturn would change little in those states. But if the court affirms Johnson v. Grants Pass, it could set unprecedented federal protections for all homeless people in the country.