Constitutional Limits to Abating Homeless Encampments, and Best Practices for a Cooperative ApproachFebruary 21, 2023
California is home to nearly one-fourth of the nation’s unhoused population, and homelessness in California continues to rise. For example, according to the U.S. Dept. of Housing and Urban Development, from 2019 to 2022, California’s unhoused population increased from approximately 151,000 to 171,000. Of the 171,000 unhoused individuals counted in 2022, 67%, or 115,000 persons, were unsheltered, living in places not intended for human habitation. The growing homeless population continues to put pressure on local governments, which are tasked with creating plans to reduce homelessness in their communities. Both the state and federal governments have recently provided millions of dollars of additional funding, some of it pandemic-related, to address this issue. Local governments face an enormous challenge in creating these plans, especially given that homelessness largely results from the state’s decades-long housing crisis and the resulting lack of affordable housing.
Both the lack of affordable housing and insufficient shelter capacity leads many unhoused individuals to reside in encampments, resulting in communities demanding that local and state leaders do more to address the proliferation of such encampments. Public pressure may force local leaders to resort to abating encampments. Indeed, abatement may be necessary because conditions may threaten the public health and safety of the community as well as those living in the encampments.
Nevertheless, abatement requires careful consideration because courts have made clear that there are constitutional limits to such measures. Moreover, if done improperly, abatement just shifts people to other locations and perpetuates the cycle of trauma already suffered by many of those unhoused. Abatement can also result in the cutting off of certain community and social support ties. As a result, rather than immediately abating homeless encampments, many cities have opted for a cooperative approach—assisting those experiencing homelessness with relocating them away from sensitive areas, such as schools and creeks and waterways, providing intensive case management as well as sanitation and trash service, and carrying out abatement as a last resort.
Below we summarize some of the constitutional limits on abatement of encampments and provide best practices to consider when abatement actions are necessary.
The Fourth Amendment’s prohibition on unreasonable searches and seizures
The Fourth Amendment protects people from unreasonable searches and seizures by the government. As determined in Lavan v. City of Los Angeles (2012), the government may not seize property unless it has an objectively reasonable belief that the property is (1) abandoned, (2) presents an immediate threat to public health or safety, or (3) is evidence of a crime, or contraband.
In Lavan, the Ninth Circuit Court of Appeals upheld an injunction preventing the City of Los Angeles from seizing and destroying unattended property of unhoused individuals. There, the City seized and destroyed property it believed was abandoned, which would have rendered the seizure reasonable under the Fourth Amendment. However, plaintiffs alleged their belongings included forms of identification and, in some cases, were neatly packed in a manner displaying ownership. The court concluded the City seized and destroyed property it knew was not abandoned.
The seizure and immediate destruction of unattended items based on size is also unconstitutional. Citing Lavan, the Ninth Circuit in Garcia v. City of Los Angeles (2021), enjoined the City from enforcing an ordinance allowing it to immediately seize and destroy “bulky” personal property (defined as property larger than can fit in a 60 gallon trash can) stored in public areas. The City argued that it was too complex to determine whether a bulky item is abandoned. The court agreed that the bulky item provision would “make it easier to clean up sidewalks” but noted that the rule would “eviscerate the Fourth Amendment.”
The Due Process Clause of the Fourteenth Amendment
Under the Fourteenth Amendment, the government may not deprive any person of life, liberty, or property without due process of the law.
In addition to the Fourth Amendment violation in Lavan, the court also found a Fourteenth Amendment violation related to the immediate destruction of seized property because the City of Los Angeles had failed to provide the property owners with notice and a meaningful opportunity to be heard. The City argued it was impracticable to provide a pre-deprivation hearing when seizing property, and while the court agreed, it noted that “efficiency must take a backseat to constitutionally protected interests” and that Los Angeles’ interest in keeping its parks clean was outweighed by the plaintiffs’ interest of not having their personal property destroyed.
Cities might also violate the substantive Due Process Clause of the Fourteenth Amendment if they place a person in a situation of known danger with deliberate indifference to their personal or physical safety. In Sacramento Homeless Union v. County of Sacramento (2022), unhoused individuals brought action against the county, city, and others, alleging they had been subjected to state-created danger in violation of federal and state constitutions by the clearing or sweeping of existing encampments during periods of extreme heat and by failing to open a sufficient number of cooling centers and other safe, air-conditioned locations. Relying on Kennedy v. Ridgefield (2006) (in which the court ruled that the government could be held liable for affirmatively, and with deliberate indifference, placing an individual in a dangerous situation they would not have otherwise faced), the federal court granted a preliminary injunction barring the City of Sacramento from clearing encampments. Relying on this state-created danger doctrine, federal district courts have likewise barred several cities from carrying out abatements during the height of the pandemic in Sausalito and Santa Cruz.
The Eighth Amendment’s prohibition on cruel and unusual punishment
Under the Eighth Amendment, the government cannot require excessive bail, impose excessive fines, or inflict cruel and unusual punishment.
Courts have held that the Eighth Amendment bars enforcement of anti-camping ordinances unless shelter is available. In Martin v. City of Boise (2019), the Ninth Circuit Court of Appeals issued a unanimous decision finding the City’s prohibition against sleeping in public violated the Eighth Amendment’s prohibition on cruel and unusual punishment when the homeless individuals have no access to alternative shelter. After Martin, cities cannot enforce ordinances that criminalize sleeping in public unless the city has shelter space available within its jurisdiction. However, the court in Martin made clear that limitations could still be placed on camping or sleeping during certain times and in certain places. Recently, the Ninth Circuit extended Martin to civil infractions. In Johnson v. City of Grants Pass (2022), the Ninth Circuit ruled that an ordinance precluding the use of bedding supplies, such as a blanket, pillow, or sleeping bag, when sleeping in public violated the Eighth Amendment.
Expressive conduct protected under the First Amendment
Courts have held that homeless encampments may be symbolic of speech and therefore protected under the First Amendment.
In Phillips v. City of Cincinnati (2020), a federal district court held that the action of living in a homeless encampment can be expressive conduct protected by the First Amendment. In Phillips, plaintiffs alleged that by living in encampments located in open and obvious areas, including the City’s central business district, they were calling attention to the city’s affordable housing crisis. The court agreed, noting the “nature and location” of the encampments made it plausible that onlookers would understand the residents were “communicating a message about the City’s inability to provide sufficient affordable housing.”
Conclusion and best practices
Local governments should be aware of the constitutional limits on abating encampments. In situations where it is necessary, consideration should be given to a more cooperative approach that may involve:
- Notice: Giving ample notice to those who are to be affected by the abatement;
- Coordination and Relocation: Engaging county, nonprofit, and community partners to let them know the need to abate a location, to coordinate resources which will be necessary, including available shelter beds, as well as available transitional and other housing resources;
- Potential Relocation: If necessary, assisting with relocation away from sensitive areas;
- Managing Personal Property: Establishing a personal property management system that will provide guidance to those working with unhoused residents to sort property that can be stored for later retrieval, and that which can be discarded;
- Hygiene and Trash Service: For larger encampments, providing hygiene and trash services so long as the encampment is not in a sensitive area, while further enlisting those agencies that can provide needed services.
Abatements do little to address the primary cause of homelessness – the lack of affordable housing. However, a Housing First approach will require the building of sufficient new affordable housing. This housing will take time to build; therefore, local governments should look for creative solutions that address the health and trauma of those community members living on the streets.
Contact René A. Ortega for more information. René thanks law clerk Samantha Ramadan for her research assistance and contributions to this article.