Anchorage policing of homeless encampments will hinge on U.S. Supreme Court decision

Anchorage and many other western cities are anticipating a ruling this summer from the U.S. Supreme Court that could change how they’re allowed to police homeless camping.

The High Court heard arguments Monday in a case from Grants Pass, Oregon, in which the U.S. Court of Appeals for the Ninth Circuit had earlier ruled that unhoused people are allowed to camp on public property if there isn’t enough indoor shelter space for them. And because Alaska is also in the Ninth Circuit’s jurisdiction, that ruling has so far stood for Anchorage and many other cities struggling to deal with growing populations of people experiencing homelessness.

The Anchorage Daily News examined the case and its implications for Anchorage in a recent story. Reporter Michelle Theriault Boots, who wrote the story, says the city is eagerly anticipating the Supreme Court’s ruling in the Grants Pass case.

Listen:

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This interview has been lightly edited for length and clarity.

Michelle Theriault Boots: So this case, it holds that it’s a basic human need to sleep and to rest and that you can’t penalize that if you, as the municipality or the local authorities, are not offering an alternative.

Casey Grove: But as it pertains to Anchorage, it’s a case that has come up in terms of how the city clears camps. And when this case was decided at the Ninth Circuit level, what position did that put Anchorage in?

MTB: Let’s say authorities in Anchorage were to, you know, penalize people from sleeping outside, clear camps, arrest people for doing that, charge them with a crime. They would be on extremely shaky legal footing. And so that, you know, definitely makes the city stop and think before they pass any ordinances or do anything to penalize that outdoor camping.

And so what that has meant in Anchorage, and many other western cities is a real proliferation of outdoor camping by unhoused people. And there’s a lot of different factors driving that, an overall huge rise in just the number of unhoused people living in a city. But what the cities have said, is this ruling, it just ties their hands, it doesn’t allow them to really regulate homeless encampments in any way. And they say that’s a problem.

CG: So this went up for oral arguments before the Supreme Court on what Monday? And in analyzing those oral arguments, what did you hear?

MTB: It seemed like the court was split on very ideological lines, which, you know, I think a lot of analysts have said they expect the court to side with the city of Grants Pass. The liberal justices seemed skeptical of giving cities more power to basically police the lives of unhoused people.

You know, in terms of the arguments on either side that the parties made in the case, I think one of the arguments made by the advocates for unhoused people is that policing homelessness doesn’t work. That the people who are fined and thrown in jail for doing basic activities of daily life, when they don’t have somewhere to live, that only serves to further entrench them in the system of homelessness and in the criminal justice system. And so they say that doesn’t work, this isn’t the solution to this.

CG: I heard a story about this on NPR, and there was some audio from Justice Elena Kagan. And I guess the example she was giving was like, you know, “What if I fall asleep on the beach, and, you know, are the police gonna come and tell me to move?” What did you hear about that?

MTB: I mean, I think that was one of one of the issues that was brought up also by, I think, Supreme Court Chief Justice John Roberts, who also said, “How do you define who is homeless?” It can be such a changeable state. It’s, by its very nature, a fluid state, and I think that that is one of the one of the big questions is, would these regulations be applied evenly? Would they be applied to people who are perceived as being, you know, visibly unhoused homeless people? Or would they be applied to someone who fell asleep while waiting for their bus home at a bus stop? So that I think that that’s one of the many messy issues in this case.

But I think one thing is certain is that this is the first time in decades that the Supreme Court has heard a major case with major implications on homelessness, and whatever they decide it will set important legal precedent for years to come.

CG: And it’S like you said, I mean, it’s kind of messy, and it doesn’t seem like the kind of thing where they just say yes or no. Like this decision, I guess we’re expecting it maybe in June, you know, how cities deal with this issue, it’s going to come down to, kind of, the intricacies of that opinion when it’s written, right?

MTB: Yeah, I think the question is how wide or narrow the opinion might be. If it’s a very narrow opinion, it might not, you know, lead to sweeping changes. If it’s a very broad opinion, then it might completely upend the way that cities can and will regulate homelessness. So I don’t think anybody knows.

I think that this, in Anchorage, the timing will be interesting, because the city is going into, you know, June 1, all of the winter shelters, which include the hotels, as well as the (former) Solid Waste Services shelter, are set to kind of wind down, though it sounds like there’s now money for a potential summer extension of shelter for about 200 people. But no matter what, there are going to be hundreds more people living on the streets of Anchorage. And how the city will respond to that, you know, the city does not want a repeat of last summer, where there was a huge encampment at 3rd (Avenue) and Ingra (Street), there continues to be a huge encampment at Cuddy Park. The city does not want that, and they’ve made that very clear. But what tools the city will have to regulate that, I don’t think anybody knows.