Anchorage joins other cities asking Supreme Court to overturn 9th Circuit decision over homeless camping on public land

The Municipality of Anchorage is joining more than a dozen other cities and jurisdictions asking the U.S. Supreme Court to review a consequential federal court ruling that has reshaped how several Western states have been able to respond to homelessness in recent years.

Mayor Dave Bronson said Tuesday that Anchorage has signed on to an effort aimed at giving local governments more latitude enforcing bans on homeless camping on public land. The appeal centers on two rulings by the U.S. Court of Appeals for the 9th Circuit, which covers Alaska and eight other states in the West. Those cases, Martin v. Boise and Grants Pass v. Johnson, have protected the rights of homeless people to camp outdoors on municipal property when there’s no alternative indoor shelter available for them to go to otherwise.

“The homelessness crisis is a complex issue that requires a complex solution, and the 9th Circuit Court’s decisions have paralyzed our ability to address this crisis in places where it’s most severe,” Bronson said at a news conference.

The Supreme Court declined to take up the Martin v. Boise case in 2019, leaving in place the 9th Circuit’s conclusion that the Eighth Amendment of the Constitution protecting people from cruel and unusual punishment includes barring municipalities from penalizing them with jail or fines for needing to sleep outdoors when homeless shelters are full.

But criticism of that ruling has grown fiercer in recent months, coming from across the ideological spectrum as local governments big and small, liberal and conservative, have faced threats of lawsuits or injunctions trying to implement policies over homelessness.

[Earlier coverage: 9th Circuit court decision ‘reaffirms’ Anchorage can’t dismantle homeless camps without indoor shelter]

The other case, Grants Pass v. Johnson, concerns what exactly constitutes “camping” on public lands. The 9th Circuit ultimately ruled in favor of the homeless residents in the case, deciding they have a reasonable right to protect themselves from the elements when sleeping outdoors and keeping warm with blankets, for example. But the ruling does not put any parameters on what counts as reasonable, leaving municipalities and law enforcement scratching their heads on whether or not they can sanction elaborate camp setups on sidewalks and in public parks.

“The Ninth Circuit’s decisions in Martin and Johnson tie the hands of local policymakers and make solving this crisis harder,” wrote attorneys with the International Municipal Lawyers Association, which prepared the brief that Anchorage Municipal Attorney Anne Helzer signed onto, along with officials from cities including Seattle, Las Vegas, San Diego, Tacoma and Honolulu, along with the National League of Cities and the National Association of Counties.

“As a practical matter, these decisions compel local governments to choose between providing shelter or surrendering public lands to encampments that harm local communities,” the petition states. “This separation of powers violation has a substantial impact on local budgets and appropriates limited tax dollars for the direct benefit of a disproportionately small percentage of the population. It also presupposes that temporary shelter beds are the solution to homelessness, channeling local resources away from longer-term solutions like permanent supportive housing, mental healthcare, drug rehabilitation, and low-income housing support.”

A separate amicus brief filed in support of Grants Pass’ petition from California Democratic Gov. Gavin Newsom’s administration argues that the relatively narrow ruling in the Martin decision has been distorted by lower court judges.

“These courts have stretched Martin’s reasonable limit into an insurmountable roadblock, preventing cities and towns from imposing common-sense time and place restrictions to keep streets safe and to move those experiencing homelessness into shelter,” according to the California petition to the Supreme Court.

Civil rights groups like the ACLU of Alaska have threatened to take the Municipality of Anchorage to court over its efforts to clear camps out of public parks in recent months.

“Abatement is still unconstitutional in Anchorage,” said Meghan Barker, communications director for the ACLU of Alaska, noting that for the time being the 9th Circuit’s rulings still stand.

Barker noted that municipal officials made the decision this spring to demobilize the low-barrier mass shelter set up inside Sullivan Arena, and as such gave up hundreds of overnight spaces for people to escape the cold as winter approaches. Until there are more indoor beds available, the city cannot clear people off public land and dispose of their possessions.

“Until there is low-barrier cold weather shelter, the Municipality of Anchorage has an obligation not to violate the constitutional rights of our unhoused neighbors,” Barker said.

Mario Bird, Bronson’s chief of staff, said that in the five years since Martin v. Boise was first handed down, the list of jurisdictions asking the courts to reevaluate the ruling has grown.

“We’re happy to join other cities on the West Coast ... to again ask them to reconsider the issue,” Bird said.

There is no certainty that the Supreme Court will agree to review the Grants Pass v. Johnson decision, or how the nine justices might rule. Likewise, there is no clear timeline. Bird said it is unlikely the court would take up the issue in its next term.

In the meantime, the city is grappling with how to transition hundreds of people currently living outdoors to winter shelter options. Municipal officials say they plan to abate the sprawling encampment that’s taken root on a public parcel downtown at Third Avenue and Ingra Street, as well as a handful of camps in the woods near a popular Muldoon park. In order to do that, they’re banking on a few hundred hotel rooms coming online to absorb campers, as well as a new low-barrier shelter space inside the former administrative building for Solid Waste Services’ Central Transfer Station in Midtown. Plans for abating two other large encampments, one by Davis Park near Mountain View and another at the former Federal Archives site by Midtown’s Cuddy Park, are less firm, according to the city homeless coordinator, Alexis Johnson.