AG Fears Homeless Enforcement ‘Pendulum Swing’

State Attorney General Rob Bonta fears the U.S. Supreme Court could pave the way for more draconian crackdowns on homeless residents if it takes on controversial lower court opinions now reining in homelessness enforcement. 

Gov. Gavin Newsom, the city of San Diego and others across the Western United States have recently implored the Supreme Court to weigh in on a lower court case that halted an Oregon city’s enforcement of its homeless camping ban. The Grants Pass, Ore. case followed a 2018 Ninth U.S. Circuit Court of Appeals ruling barring western states from citing homeless people for sleeping outside if no other shelter is available. The Martin v. Boise ruling has limited cities’ efforts to clear homeless camps – and fueled debates about the amount and type of shelter necessary to comply.  

In a recent amicus brief, attorneys representing the Newsom administration wrote that the Martin case has “paralyzed communities and blunted the force of even the most common-sense and good-faith laws to limit the impacts of encampments.” 

Bonta fielded questions last weekend about the homelessness enforcement cases during and after a live podcast at Voice of San Diego’s Politifest event.  

Bonta said he understands the beefs Newsom, San Diego Mayor Todd Gloria and San Francisco Mayor London Breed have with the legal state of affairs but said he’s concerned what might come next. 

“They’re expressing themselves, but I don’t want us to move the pendulum too far the other way,” Bonta said. “We cannot make being homeless criminal and be punitive and be inhumane about it. We must always maintain our humanity and compassion and provide opportunities for shelter for those on the street.” 

What Bonta didn’t mention directly is that the Supreme Court now has a conservative majority that homeless advocates fear could take a more punitive view on how to address homelessness and potentially quash legal protections that 9th U.S. Circuit Court of Appeals ruling established for homeless people. 

Bonta seemed to reflect on that concern more in an interview after the podcast. 

“I hope there’s not a massive pendulum swing where there’s no commitment to the humanity of homeless folks and their situation, that there’s an ongoing commitment to provide support for them and not just a shift to punishment and criminalization,” Bonta said. “That would be to me a very devastating development in the law.” 

Bonta does agree there’s a need for clarification in the law. 

Bonta said there’s been confusion around whether cities need a shelter bed for everyone on the street to enforce laws tied to homelessness, which he considers unreasonable – or just those they are interacting with on a particular day.  

“I think some people think that it means that until you have a plan for every single homeless person in a jurisdiction – San Francisco, let’s say – you can’t move one of them off the street,” Bonta said. “I think that’s wrong.”  

Bonta also said he was “a little surprised” with the Ninth Circuit Court of Appeals’ interpretation that suggested enforcement without available shelter triggered the Eighth Amendment of the Constitution, which prohibits cruel and unusual punishment. 

Local legal settlements have long meant that San Diego police offer shelter beds before citing unsheltered residents for violations tied to homelessness though they do sometimes cite people for encroachment – or blocking a sidewalk – even after a shelter bed has been accepted. 

Police have continued those shelter offers under the city’s new camping ban. 

But the new law bars homeless San Diegans from settling certain areas – including near schools and shelters and in select parks – even when shelter isn’t available. 

In a May memo, City Attorney Mara Elliott’s office opined that this element of the ordinance was defensible as long as it didn’t leave unsheltered people with nowhere else to go and the city could articulate specific health and safety concerns in the areas where it’s banning camping at all times.  

Gloria and other proponents of the camping ban have emphasized the health and safety concerns tied to homeless camps while homeless advocates argue the ordinance is cruel. 

I asked Bonta how he views this element of San Diego’s camping ban. 

Bonta said he believes the city’s approach to protecting what he deemed sensitive sites is compelling but that judges may have different opinions on it if the ordinance faces a legal challenge. 

“I think some judges might find the city’s position compelling and some judges might feel it doesn’t fall into the sort of standard analysis under Boise,” said Bonta. “I think the city is doing what they think is right and courts will decide whether their position is defensible or not.”