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The U.S. Supreme Court’s decision to give cities broader latitude to punish people for sleeping in public when they have no other options will likely result in municipalities taking more aggressive action to remove encampments, including throwing away more of homeless people’s property, advocates and legal experts said.
In its 6-3 decision on Friday, the conservative majority upheld Grants Pass, Oregon’s ban on camping, finding laws that criminalize sleeping in public spaces do not violate the Eighth Amendment’s protections against cruel and unusual punishment.
Writing for the majority, Justice Neil Gorsuch said that the nation’s policy on homelessness shouldn’t be dictated by federal judges, rather such decisions should be left to state and local leaders. “Homelessness is complex,” Gorsuch wrote. “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,” he wrote.
A lower court ruling that prevented cities from criminalizing the conduct of people who are “involuntarily homeless” forced the U.S. Court of Appeals for the 9th Circuit to confront what it means to be homeless with no place to go and what shelter a city must provide, Gorsuch wrote. “Those unavoidable questions have plunged courts and cities across the Ninth Circuit into waves of litigation,” he wrote.
In a dissenting opinion, Justice Sonia Sotomayor wrote that, for some people, sleeping outside is a “biological necessity” and it’s possible to balance issues facing local governments with constitutional principles and the humanity of homeless people. “Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested,” she wrote.
Criminalizing homelessness can “cause a destabilizing cascade of harm,” Sotomayor added. When a person is arrested or separated from their belongings, the items that are frequently destroyed include important documents needed for accessing jobs and housing or items required for work such as uniforms and bicycles, Sotomayor wrote.
Advocates and experts said that since the ruling allows municipalities to issue more citations and arrests without violating the Eighth Amendment, the decision could lead to more legal claims over other constitutional protections, which could include the disposal of people’s property during encampment removals. Other legal claims over cities’ treatment of homeless people have focused on rights protecting against unreasonable search and seizure and guaranteeing due process, in the Fourth and 14th Amendments.
“There will be even more of these sweeps and attempts to just close down encampments or harass people who are living on the streets to just basically make them become less visible, maybe leave town,” said Stephen Schnably, a law professor at the University of Miami who has advocated for the rights of homeless people in lawsuits.
If more cities enact camping bans, which could require an increased law enforcement response, those interactions could lead to loss of property, said Ann Oliva, the CEO of the National Alliance to End Homelessness. The ruling “opens that door,” she said.
ProPublica has been reporting on the impact of encampment removals and recently found that the city of Albuquerque, while removing homeless encampments, had discarded personal property in violation of city policy and a court order that has since been lifted. Some people told ProPublica that they had belongings discarded multiple times by city crews. They described losing survival gear, including tents and sleeping bags during freezing weather; important documents such as birth certificates; and irreplaceable mementos like family photos.
Recently, dozens of people with lived experience and advocates from across the country have described to ProPublica having their property discarded during encampment removals.
Legal experts said the practical implications of the decision is that it empowers local governments to issue citations and make arrests with the possibility of jail time.
Donald Whitehead, the executive director of the National Coalition for the Homeless, said he expects it will cause communities to think criminalization is the “right direction” and dissuade policymakers from developing new ways to provide more affordable housing. “Why come up with innovative, creative solutions when you can simply raid encampments and put people in jail,” he said.
Whitehead said he is worried that the ruling will lead homeless people to become more isolated and vulnerable to crime.
States have already enacted new legislation that criminalizes camping on public land.
A new Florida law, which takes effect Oct. 1, prohibits counties and municipalities from allowing camping or sleeping on public property. The law directs the state’s Department of Children and Families to certify designated camping areas for people experiencing homelessness. Beginning in January, private citizens, business owners or the state attorney general can sue if a county or municipality fails to adhere to the law.
Kentucky lawmakers overrode a veto by Gov. Andy Beshear, a Democrat, to enact the Safer Kentucky Act, which makes camping on certain private and public property a misdemeanor after multiple violations. The law also allows property owners to use deadly force against people who are illegally camping and goes into effect in July.
Grants Pass, a city of about 39,000, along with a large number of cities and states, asked the Supreme Court to hear the case, arguing that a 2018 lower court ruling, Martin v. Boise, prevented cities across the West from responding to the growth of encampments. The 9th Circuit — covering states with some of the highest populations of people experiencing unsheltered homelessness, including California, Oregon and Washington — ruled that homeless people cannot be punished for sleeping outdoors on public property if they don’t have anywhere else to go.
In its appeal to the Supreme Court, Grants Pass argued that the status quo harms local governments, residents and people experiencing homelessness. “Public camping laws” are a “critical (and constitutional) backstop” to halt the growth of encampments, lawyers wrote.
“Even when coupled with offers of shelter and other services, efforts to enforce common sense camping regulations have been met with injunctions.”
The lawyers representing people experiencing homelessness argued that the 9th Circuit ruling did not deprive cities of their ability to clear encampments. Lawyers pointed out that Grants Pass had continued to dismantle encampments throughout the legal proceedings, “as it is free to do.” “That is a policy choice not a judicial mandate,” the lawyers wrote, adding the politicians have “chosen to tolerate encampments” instead of addressing the West’s severe housing shortage.
Jesse Rabinowitz, communications director for the National Homelessness Law Center, said the Supreme Court’s decision empowers cities and states to play a “national game of human Whac-A-Mole and continually do what they were very clear they wanted to do in Grants Pass, which is to push people into another town. We would see that happening on a national level.”
Bob Erlenbusch, a board member for the National Coalition for the Homeless who has advocated for homeless people for four decades, said that since the Martin v. Boise decision, cities have found other ways to criminalize homelessness and clear encampments.
“It’s an everyday occurrence that encampments are swept,” Erlenbusch said, describing city workers in Sacramento, California, who use bulldozers and shovels and in the process destroy belongings. “And that will increase around the country.”
In an amicus brief in the Grants Pass case, the Western Regional Advocacy Project, an organization led by people with experience living on the streets, described a winter encampment removal in Denver where people lost “food, essential paperwork, sleeping bags, clothing, work tools, medication, identification, blankets, survival gear and more.”
Sara Rankin, a law professor with Seattle University who contributed to the amicus brief and studies the criminalization of homeless people, said the court’s Friday ruling will embolden the dehumanization of unsheltered people. “Cities have always had the ability to sweep and they continue to do that at reckless paces,” she said. “What happens to people? Will people be more harmed as a result? I would say that is a very, very deep concern.”
Ruth Talbot contributed reporting.
This article was produced by The Salt Lake Tribune, which was a member of ProPublica’s Local Reporting Network in 2022 and 2023. Sign up for Dispatches to get stories like this one as soon as they are published.
Utah OB-GYN David Broadbent was charged Thursday with forcible sexual abuse, as prosecutors allege he sexually touched a patient during a 2020 exam.
Broadbent has been accused in civil lawsuits of inappropriately touching more than 100 patients during exams — but this is the first time Utah County prosecutors have filed a criminal charge against him. He faces a second-degree felony, which carries a potential penalty of up to 15 years in prison.
Over the past year, The Salt Lake Tribune and ProPublica have reported multiple stories about the difficulties women faced as they raised complaints of sexual misconduct against Broadbent, including obstacles in the courts and in reporting to police.
In charging records, prosecutors say one of Broadbent’s patients came to see him in 2020 regarding a bump in her vaginal area. Broadbent allegedly instructed the patient to undress from the waist down — but when he returned to the exam room after she changed, prosecutors say he lifted up her shirt and bra and touched her breasts. He then grabbed her leg “in what felt like a sexual manner,” prosecutors say, and began a vaginal examination.
An attorney representing Broadbent in his civil litigation did not respond to a request for comment. No attorney is yet listed in his criminal case.
Deputy Utah County Attorney Tim Taylor, who is a spokesperson for the prosecutor’s office, said Thursday that police and prosecutors are continuing to investigate and are still considering whether to file additional charges against the OB-GYN.
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At least 49 women have reported to the Provo police that Broadbent sexually abused them during exams, and prosecutors have been weighing whether to file charges for 18 months. This month, the county attorney’s office agreed to pay for a nurse practitioner who specializes in sexual assault exams to review the evidence that prosecutors have and to do research and advise them on what the standard of care is for an OB-GYN appointment.
Many of the women who made reports to the police allege Broadbent inappropriately touched their breasts, vaginas and rectums during exams — often without warning or explanation and in ways that hurt them and made them feel violated. Other former patients, along with many of the women who went to the police, have also sued Broadbent or the hospitals where he worked, with a total of nearly 120 women making sexual assault allegations in two civil lawsuits.
In September 2022, a judge dismissed one of the civil cases, which was filed by 94 women, when he ruled that it fell under medical malpractice law instead of a civil sexual assault claim. That meant it had faced — and missed — tighter filing deadlines. The women have appealed the ruling to the Utah Supreme Court, and they have been waiting for seven months for its decision.
In a different civil suit, 20 other women sued two hospitals where Broadbent worked and had privileges at, alleging they knew of alleged misconduct and failed to act. That case is still pending; the hospitals have argued in court records that Broadbent’s alleged actions against these women didn’t take place on their premises and therefore they are not liable.
Broadbent has agreed to stop practicing medicine while this criminal investigation is ongoing. In response to the civil case filed by the group of 94 women, Broadbent’s attorneys have said sexual assault allegations against him are “without merit.”
The woman whose report led to the criminal charge saw Broadbent in July 2020. A year and a half later, in December 2021, another former patient of Broadbent’s spoke out publicly on the podcast “Mormon Stories,” describing the painful way she said he had examined her years before and how it left her feeling traumatized.
After the podcast aired, women started coming forward publicly in civil lawsuits accusing Broadbent of inappropriate touching. Former patients also started making reports with the police, though it’s not clear from court records when the woman whose report led to the criminal charge went to law enforcement.
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