Supreme Court Restores Cities’ Ability to Ban Camping, LA Mayor Refuses

President Andrew Jackson infamously said in response to a U.S. Supreme Court’s ruling he did not like regarding the sovereignty of Native American Tribes, “the Court has made its decision, now let them enforce it.” Los Angeles Mayor Karen Bass has, effectively, said the same thing in response to the Court’s new ruling which permits laws that ban camping in public spaces. She announced she has no intention of changing her approach to the homeless crisis, i.e. continue to permit people to pitch tents on the beach, in the park, and on the sidewalk, and then send out city workers to offer them free housing in newly built, city-owned apartments, paid for by LA residents.  

California and other west coast states have experienced a homeless explosion over the past five years. It’s primarily attributable to one thing: Cities stopped enforcing laws prohibiting overnight camping. This was in response to a Ninth Circuit ruling which found such laws constituted “cruel and unusual” punishment in violation of the Eighth Amendment to the U.S. Constitution.

But the Court has now struck down that and other similar rulings. Cities in the west are now free again to enforce their longstanding camping bans, rejoining cities across America.   

However, it appears LA is not ready to return to enforcing its ban. While the Supreme Court ruling permits it to do so, it does not require it.  In her statement about the ruling, Mayor Bass called it “disappointing,” adding, “This ruling must not be used as an excuse for cities across the country to attempt to arrest their way out of this problem or hide the homelessness crisis in neighboring cities or in jail.”

She prefers her so-called “Inside Safe,” approach, whereby rather than banning camping, she reduces homelessness by buying or building apartments for them. The cost thus far of her program is $17,009 per person per month! 

The Ninth Circuit ruling invented two radically new interpretations of the Eighth Amendment. First, that its prohibition against “cruel and unusual punishment” applies not just to sentences imposed for crimes, but to the criminal law itself. Second, it requires that cities provide housing for all homeless before enforcing laws to protect the safety, security, and cleanliness of public spaces. This effectively creates a constitutional right to housing, a progressive dream previously thought achievable only through a constitutional amendment.

In the 6-3 City of Grants Pass v. Johnson ruling, the Supreme Court overturned these interpretations. The primary flaw found in the Ninth Circuit’s reasoning was that the cruel and unusual punishment ban applies only to the sentence, not the underlying crime, unless the law criminalizes status, not acts. No camping laws do not, it held. The Court further noted, “the reasons why someone will go without shelter on a given night vary widely by the person and by the day.” Thus, the camping ban as applied to one camper could be cruel, but as to another, not. Individuals are free to assert defenses in response to charges, including that in their case punishment would be cruel. “It may be that defense extends to charges for illegal camping when it comes to those with nowhere else to go,” the Court noted.

The Court concluded cities must be free to determine how best to protect its public spaces while dealing with the homeless problem.  “Homelessness is complex. Its causes are many. So may be the public policy responses required to address it. At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not.”

Many western city mayors celebrated the ruling. Even some progressive leaders applauded it. California Governor Gavin Newsom said the ruling provides “definitive authority to implement and enforce polices to clear unsafe encampments” and “removes legal ambiguities that have tied the hands of local officials for years and limited their ability to deliver on common-sense measures to protect the safer and wellbeing of our communities.” San Francisco Mayor London Breed said the decision “will help cities like San Francisco manage our public spaces more effectively and efficiently.”

But not Bass, thus positioning herself as further left than Newsom and Breed. Time will tell whether Newsom and Breed will truly change course on their approach to the problem. They have both been committed to a “housing first” policy, meaning the way to solve the homeless problem is to give them housing.

The plan has not been working well, as numbers have increased every year in cities like LA which stopped enforcing bans, despite billions of state and local dollars allocated for homeless housing.  As a result of the Ninth Circuit’s limits created in 2019, the Supreme Court noted that “California alone is home to around half of those in this Nation living without shelter on a given night,” and that “homelessness in this country has reached its highest levels since the government began reporting data on the subject in 2007.”

LA just received “good news” that the homeless count recently conducted showed a 2 percent drop in the number of homeless. While it is better than an increase, one would expect better results based upon the money spent. Further, over 1,000 homeless died during this period. Not exactly the way you want to see homeless numbers decline. 

Bass is not alone in her thinking.  The LA City Council thinks similarly. Among its 15 members are three Democrat Socialists, and not a single Republican. Two Council Democrats are presently being challenged by Democrat Socialists. In LA, where there is an open primary where the top two go on to the general it is no longer about Republicans v. Democrats. It is Democrats v. Democrat Socialists. Socialists generally believe in housing as a right, and therefore the government should provide it for all. 

For them, a homeless crisis is welcomed. They point to it as the symptom of a problem, that being a capitalist system. They assert it is caused by unaffordable housing, landlords unfairly evicting tenants, unfair rent increases, inadequate welfare, and, for good measure, racism. They use the homeless crisis as an excuse to implement their socialist dream policies, like government housing, rent control, eviction moratoriums and protections, and reparations.

The inconvenient truth, however, is that the homeless crisis was created by the Ninth Circuit rulings. If LA does not change course on enforcement while others do, it is not hard to predict what will happen. The homeless will migrate to the “sanctuary” of LA, where camping laws are not enforced. This has already been happening. While homelessness has been going up in California in recent years, it has been going down nationwide. 

By not changing policies in response to the ruling, Bass is setting LA on course to be the homeless capital of the United States.