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In Supreme Court case, SPLC supports rights of people experiencing homelessness

On a day off from the crush of representing her constituents, you might find Florida state Sen. Rosalind Osgood on a park bench in the sun, her eyes closed.

Or you might come across attorney David Peery, a graduate of Howard University and George Washington University Law School, enjoying a Sunday nap on a grassy esplanade in Miami, where he lives.

It is almost certain that neither would elicit a second glance from the police. Sleeping in a park is, after all, not a crime.

Or is it?

If you are experiencing homelessness, the U.S. Supreme Court could rule in a case it will hear on April 22 that you can be cited or arrested for the simplest of human functions – falling asleep.

In City of Grants Pass v. Johnson, the court will ultimately decide whether a city’s enforcement of public camping laws against unhoused people violates the Eighth Amendment’s protection against cruel and unusual punishment.

The Southern Poverty Law Center has, along with other social justice organizations, filed an amicus “friend-of-the-court” brief to support the claims of the plaintiffs experiencing homelessness that such laws are unlawful status crimes. The SPLC filed the amicus brief on behalf of itself and other nonprofit poverty law organizations in Florida that work on issues of housing and homelessness: Southern Legal Counsel, Florida Justice Institute, Florida Legal Services, Community Justice Project, Legal Aid Society of Palm Beach County and the Florida Housing Umbrella Group. SPLC advocates will also participate in a rally outside the courthouse on April 22 in support of rights for unhoused people.

“Instead of fixing the system from the policy level, what our governments are doing at the state and local levels is blaming people because they cannot afford housing and making their very existence a crime,” said Kirsten Anderson, deputy legal director for the SPLC’s Economic Justice litigation team.

Osgood and Peery understand better than most what is at stake. Both experienced homelessness before they became advocates for society’s most vulnerable people. They know that, in the eyes of the growing number of cities and counties set on hiding unhoused people from sight, perhaps the only thing that protects them from being punished for their very existence is how they are able, in their current lives of societal respectability, to look.

“The problem is this dehumanization of a class of people, the undesirable class,” said Peery, interim national director of community organizing for the National Coalition for the Homeless and executive director of the Miami Coalition to Advance Racial Equity. Peery was unhoused on and off from 2006 to 2016.

“It’s ‘those’ people, these laws imply. They’re not like you and me. They’re not, you know, decent, honest, hardworking, taxpaying citizens. They’re lazy, irresponsible, those people. But why do I deserve more rights now than I did back when I was sleeping outdoors? The fact is, when you dehumanize a group, a class of people, then society can start to take punitive actions and persecute them. It’s a slippery slope.”

‘Tearing down the dam’

That slope could reach bottom with the issue before the Supreme Court. In fact, the Grants Pass case is the most significant one that the court has taken up in decades on the rights of people experiencing homelessness. The outcome will determine whether cities can arrest or fine unhoused people for sleeping or camping in public spaces – even if there is no other shelter for them.

As lawyers for the plaintiffs wrote in their brief to the court, this would be “punishing the city’s involuntarily homeless residents for their existence.”

If the Supreme Court rules in favor of Grants Pass, Oregon, it will upend the lives of people who are unhoused in the same way the court’s abortion decision in Dobbs vs. Jackson Women’s Health Organization has affected the lives of women across the U.S.

“There’s a very significant chance of a wave of arrests, of using the criminal law to just punish people who are incredibly poor, who lack even the basics of having a house,” said Stephen Schnably, a professor at the University of Miami School of Law and a cooperating attorney for the Miami chapter of the American Civil Liberties Union of Florida.

“Whatever restraint the courts have been able to put on that criminalization, this is basically tearing down the dam. Once the Supreme Court says that Grants Pass can do this, this gives a green light to just arresting people for being homeless.”

Grants Pass has been embroiled in a lawsuit with residents experiencing homelessness who argue that anti-camping ordinances enacted by the city, including fines for sleeping in any park or public space, violate their constitutional rights.

The city’s defense is based on a reading of constitutional law that is fundamentally at odds with generations of jurisprudence. This legal philosophy has held that ordinances against sleeping or camping in public spaces unlawfully punish people experiencing homelessness on the basis of their status, making the laws cruel and unusual punishment as defined by the Eighth Amendment. Lower courts, including the Ninth Circuit Court of Appeals, have upheld the plaintiffs’ claim. In its decision, the appeals court said the city could not ban people from sleeping outside when there is nowhere else for them to go.

‘A basic right we all share’

In its amicus brief, one of 42 filed on behalf of the plaintiffs, the SPLC argues that by seeking to criminalize homelessness, politicians are acting in a way that is both cruel and counterproductive to the larger goal of ending or diminishing the inequalities that give rise to homelessness. Bans against sleeping and camping not only violate the U.S. Constitution, the SPLC argues, but squander an important opportunity to address the roots of homelessness by investing in affordable housing and other commonsense solutions.

The SPLC also argues that the bans amount to a rolling back of rights. Like the vagrancy laws wielded after the Civil War against newly emancipated Black people, they imply that people experiencing poverty don’t have civil or political rights.

“When we talk about homelessness, we are talking about the most visible manifestation of extreme poverty,” the SPLC’s Anderson said. “Housing is central to a person’s well-being, economic stability and ability to have a standard of living. And for some people in our country, it is increasingly out of reach, as the cost of housing is outpacing the rise of inflation. So, what we’re seeing is a mass systemic deprivation of what is a human right, a right to housing. It’s a basic right we all share.”

Leaders from across the political spectrum are asking the court to reverse the Ninth Circuit, challenging that longstanding interpretation of the Constitution. They say the prohibitions on such bans put them in the impossible position of providing beds for every single person in their communities, even those who won’t use them. The result, they say, is cities dotted with tents and parks that many people feel are unsafe or that people are uncomfortable using.

Warehousing without walls

In several states, including Florida, the state with the third-highest share of unhoused residents in the U.S., lawmakers have pushed bills based on templates from the Cicero Institute, an Austin, Texas-based conservative think tank.

A law signed by Florida Gov. Ron DeSantis in February takes away the right of local jurisdictions to do anything, in fact, but criminalize homelessness. Under that law, which goes into effect in October, local governments can no longer allow sleeping or camping on any public property. If they do, the law – like one passed in Texas against physicians who provide abortions – allows any resident, local business or the state to file suit against them.

“This is all part of this larger affordability crisis. How many people in Florida are one paycheck away from being behind on their rent?” said Jonathan Webber, Florida state policy director for the SPLC. “Years of government leaders in Florida unwilling to take a stab at solving the hard problems, and you get a crisis where people cannot afford to live. And one mistake or one issue – a health issue, or the car breaks down – and people are out on the street. And maybe it’s only temporary, maybe it’s longer than that. But it’s a problem, and a growing problem, and it’s only going to get worse, especially with this bill that just passed.”

What makes the Florida law even more insidious is the way it masks the criminalization of people experiencing homelessness with language cynically implying it is designed to help. It allows county governments to create special campsites where unhoused people would be permitted to sleep. But it appropriates no money or mechanisms for setting up such sites. And the statute prohibits the campsites from being located anywhere that could lessen the value of a business or impact residential property values.

Advocates for people experiencing homelessness, including the SPLC, say it is a near certainty that no local government will establish such areas.

And even if they did, the campsites could easily become a form of open-air prison for unhoused people – out-of-sight, out-of-mind warehousing without walls that would strip society’s most vulnerable people of their independence and, potentially, their safety.

‘Build houses’

Osgood, the state senator, has spoken out fervently against the Florida law. Now in her second term representing Broward County, she was unhoused twice in her life. The first time, she was struggling with drug addiction. The second time, she had fled with her children from an abusive relationship. She spent months, she said, sleeping with them in movie theaters and in her car. Her church and the services provided by it and by other nonprofits gave her opportunities to change her life, she said.

She shudders thinking about the Florida law, and the wave of new legislation that could be empowered if the Supreme Court sides with the city of Grants Pass.

“The homeless crisis is an issue, and it is an issue for communities as well as for the people who are unhoused,” Osgood said. “But it has to be approached as an adaptive challenge. You can’t just look for a temporary, quick fix. You can’t look to hide the problem or arrest people for their struggles. To combat homelessness, our focus should be very simple. Build houses.”

Outside the Supreme Court on April 18, 2024, Andrea McChristian (fourth from left), the SPLC's director of policy research, joins members of Congress and other activists in calling for the protection of constitutional rights for people experiencing homelessness. (Credit: Theresa Lau)