Supreme Court Decision Validates Local Strategies to Decriminalize Homelessness

A worker with the Other Ones Foundation helps save a homeless person's tent as workers with Texas Department of Transportation remove camps underneath the 290 overpasses near Westgate in November. (Photo by John Anderson)

The U.S. Supreme Court declined on Monday, Dec. 16, to hear a case attempting to overturn a ruling by the 9th U.S. Circuit Court of Appeals that found it unconstitutional to issue citations to people experiencing homelessness when and where sufficient shelter space for them does not exist. That 9CA ruling was used as justification by City Council and activists who successfully loosened Austin's restrictions on camping, sitting, and lying in public over the summer, ultimately permitting these behaviors in most parts of town as long as they are not harmful to the individual or to others.

City officials in Boise, Idaho – later supported by governments in other cities and states, including Texas Attorney General Ken Paxton – sought permission from federal courts to enforce laws preventing people from camping in public. The 9CA opinion says that if a municipality does not have a place for people experiencing homelessness to go, and they have no other choice but to sleep outside – a "biological necessity," lawyers representing homeless individuals argued – then it is unconstitutional to fine them for doing so. The SCOTUS decision to not review the 9CA ruling means that such laws may be held in violation of the Eighth Amendment, which bans "excessive bail," "excessive fines," and cruel and unusual punishment.

Austin's current shelter system fits that description; the city has around 1,000 beds available in total (some reserved for men, women, families, youth, veterans, etc.), nearly all of which are consistently occupied. According to the city's latest official Point in Time Count, at least double that number of people are living without shelter. Thus the SCOTUS decision validates the city's strategies to decriminalize homelessness and bolsters the case for loosening the ordinances ahead of potential future challenges to the laws.

Angelica Cogliano, a local criminal defense attorney who sued the city last year over its camping and sit/lie ordinances before they were changed, told the Chronicle: "The ruling gives people fighting these ordinances and people experiencing homelessness more of a leg to stand on. Now that the Supreme Court has let the 9th Circuit ruling stand, it gives more credence to the idea that cities could be sued for enacting laws similar to those in Boise."

The hope in Austin is that the court's decision will dissuade the Texas Legislature from passing a statewide ban on public camping, as Gov. Greg Abbott has previously vowed to seek in 2021. Although Texas courts are not bound by 9CA rulings, the decision can be cited as precedent in future cases, and anyone wishing to challenge any new law as an Eighth Amendment violation would have a better chance of succeeding in court.