Advertisement. For information about purchasing ads, please click here.

We Build Alaska

U.S. Supreme Court appears poised to allow local governments to enforce anti-camping laws on public property

(This is the latest installment of the Alaska Landmine’s coverage of the Ninth Circuit’s rulings regarding homeless encampments. For a full background, you can read the coverage here, here and here.)

On April 22, 2024, the U.S. Supreme Court heard argument on the much-anticipated City of Grants Pass v. Johnson appeal. The argument lasted just under two and a half hours. The appeal presents the interesting  legal question: does the 8th Amendment’s prohibition on cruel and unusual punishment bar local governments from enforcing anti-camping ordinances against the homeless if the number of homeless outnumbers available shelter beds? Based on the exchanges at the argument, it appears likely the U.S. Supreme Court will answer that question “no.” That anticipated ruling would remove the judicial hurdle that cities and public officials have often cited as why they cannot clear homeless encampments.

A short background. The Ninth Circuit enjoined (barred from enforcing) the City of Grants Pass from fining the homeless for violating its local ordinance that prohibits camping on municipal property. The Ninth Circuit reasoned that the 8th Amendment barred enforcement of civil fines on the homeless if they did not have a house or other dwelling to go for. For the reasons explained in this prior Landmine article, that legal reasoning is on shaky ground, at best.

On appeal to the U.S. Supreme Court, the City of Grants Pass gained some unlikely allies who all sought reversal of the Ninth Circuit’s ruling. Here are a few of those allies: Governor Gavin Newsom (D – California), San Francisco Mayor London Breed, the City of Los Angeles, the City of Phoenix, and many others. Even the Biden administration—which ultimately supports the Ninth Circuit’s reasoning that the 8th Amendment prohibits enforcement of anti-camping ordinances against the homeless––urged the U.S. Supreme Court to invalidate the Ninth Circuit’s ruling.

The Biden administration argued that the Ninth Circuit misunderstood U.S. Supreme Court caselaw: “As explained, the Robinson principle asks whether enforcement of the challenged ordinances against a particular person constitutes impermissible punishment based on the condition of being without available shelter.” In other words, to the Biden administration, each homeless person has unique circumstances and courts cannot simply say that all homeless can camp on public property if the number of available shelter beds is less than the number of homeless.

The oral argument demonstrated the myriad of issues with the Ninth Circuit’s ruling. Consider the following questions discussed at oral argument.

What constitutes homeless?

Is a teenager who doesn’t want to go home because his parents make him do hours upon hours of chores homeless?

What about a person who has relatives with housing but does not want to go there because he isn’t allowed to bring his dog?

Is a person homeless if they have a place to stay but does not want to go there because he can’t do narcotics or drink alcohol at that location?

How are local governments and police supposed to parse out who is actually “homeless”?

What if police believe the person is lying about their circumstances?

Besides sleeping, what other “biologically necessary” conduct does the 8th Amendment shield from punishment? 

In Grants Pass the ordinance prohibited “camping” on public property, and defined camping as setting up equipment or materials to sleep. But based on the facts of the case, the Ninth Circuit was not tasked at looking at tents or broader encampments. The only materials at issue in Grants Pass was bedding materials – blankets and sleeping bags. The Ninth Circuit ruled that, in Oregon, blankets and sleeping bags were a requirement to stay alive while the person slept – a biological necessity. But at argument, the justices homed in on the problem with that logic. For instance, urination and defecation are also biological necessities. But every party agreed that Grants Pass could enforce public urination and defecation laws because those law were supported by “very substantial public health reasons.”

What about the right to build a fire for heat and cooking? The advocates supporting the homeless in the case went back and forth as to whether the homeless had a right to build such fires. What about stealing food from a store if no other food was available? Consuming calories is a biological necessity, after all. If the 8th Amendment prohibits punishment of homeless for camping because sleeping is a biological necessity, why doesn’t the law prohibit punishment of homeless stealing food and building a fire to fulfill the biological necessity of warmth and caloric intake?

A couple of exchanges from the transcript show how the Justices wrestled with these questions. One interesting exchange took place between Justice Samuel Alito and attorney for the United States Edwin Kneedler:

JUSTICE ALITO: Could you explain how your rule would be carried out by police officers on a day-to-day basis? Let’s say that there are 500 beds in a particular town and let’s say it’s 3 –3:00 in the afternoon, 4:00 in the afternoon on a winter day. What is an individual police officer supposed to do if individual police officer would go around and count the number of people who are getting ready to sleep outside? I guess, if it’s 4:00, you wouldn’t get that. Let’s say it’s 6:00. Count the number of people who are getting ready to sleep outside for the night and then ask each one of them whether you’ve tried to find a bed at –at a shelter? Whether that person would be willing to go to a shelter if a bed is available without any conditions or whether the bed –the bed would have to be available on the conditions that the individual wants, like I won’t go to a shelter where they won’t take my dog or something like that? Just explain how it would work on a — a daily basis.

KNEEDLER: Well, first of all, with respect to the individual encounter, I think the –the way this would work in the real world –and –and I think it’s important to understand what happens on the ground in these situations. The –I –I think, in the circumstances you’re talking about, I think what would happen is that the person –the –the person encountering the homeless person would know whether there is a –a spot available. The study –I don’t think the homeless person would be required to check each day with each shelter if there are multiple shelters. And in larger cities, these initial encounters are –are not handled by law enforcement. They’re typically handled by social services agencies who are in contact with people who are camping and –and –and know what their circumstances are and they are able to say: We know that at such and such shelter there are beds available

JUSTICE ALITO: What if there’s a –

KNEEDLER: –would you be willing to go?

JUSTICE ALITO: What if there’s a question whether there are, indeed, enough shelter beds available? Your rule wouldn’t apply if there are enough beds available, right? If there are 500 shelter beds and –and there are only 200 people who are trying to sleep outside, then your rule wouldn’t apply?

KNEEDLER: Right, right.

JUSTICE ALITO: So you have to have a comparison of the number of beds available with the number of people who want to sleep outside?

KNEEDLER: Right, yes. And I just –

JUSTICE ALITO: So that would be the threshold question?

KNEEDLER: Right. And I just want to clarify one –one point about that. It’s not simply a measure of the number of beds against the number of homeless people such that if there is a deficit, the City can’t enforce the law at all. If you have individualized questioning and you know that there are vacant –there are vacancies available, even if not for everybody, but there is a vacancy for the person being interviewed, then, yes, that person –if –if that person is offered and refuses, that –that person could be prosecuted and –or –or –or cited. So –

JUSTICE ALITO: Well, what if the person says I –I –yeah, I know there’s a bed available at the Gospel Rescue Mission, but they won’t take my dog?

KNEEDLER: Yeah, I don’t think — I don’t think the inability to take your dog to the shelter is –is a sufficient reason. There are shelters in some larger cities that may well take pets, but

JUSTICE ALITO: I could –I could — I know I could sleep in the home of a family member, but they really hate me and they’re really nasty to me.

KNEEDLER: I –you know, I –

JUSTICE ALITO: I’m not –these are

KNEEDLER: No, no –

JUSTICE ALITO: I’m just wondering how the –this is going to be administered on a daily basis.

KNEEDLER: And –and –and I think, you know, with all respect, I think that example is –if the –if the family is going to accept him, but, I mean, that’s the question, whether there is a –a place to sleep. But I –I don’t know that it would very often come down to that –that family hates me. On the other hand, if it’s a woman who left domestic abuse, she couldn’t be expected –

JUSTICE ALITO: Right.

KNEEDLER: –to go back to the — to the –to her home or maybe her relative’s home or his relative’s home or something. So there’s a lot of common sense. And, again –again, the law enforce –the –the first encounter that a police officer or somebody else has with a homeless person is very unlikely to be a situation in which the person would be issued a citation.

JUSTICE ALITO: Okay. You –you mentioned just a couple of things that I wanted to follow up on. Does it matter whether the person grew up in the town or not?  Suppose –

KNEEDLER: No. No.

JUSTICE ALITO: –that they –okay, that’s irrelevant?

KNEEDLER: And –and –and I think –

JUSTICE ALITO:  So they go up to — they go up to some police officer or social services in San Diego goes up to somebody and says, you know, where are you from? Oh, I’m from Fargo, but if I have to sleep outside, I sure would rather do it here than in Fargo. That doesn’t matter?

KNEEDLER: No, and –and I think –not because of –of any Eighth Amendment rule we’re talking about, but under this Court’s decisions in –in Edwards and and Saenz, the Privileges and Immunities Clause or the Commerce Clause or the various right to travel provisions would –would prohibit attaching that sort of –of limitation to a — to a newcomer. But I –but I would –as I mentioned, regarding people —

JUSTICE ALITO: Okay. Where I used to –where I used to live in New Jersey, there are a lot of really small municipalities, I think over 500 municipalities in the state. I could go for a 20-minute walk in the evening and be in three or four different municipalities. So, to get back to my –to Justice — to the Chief Justice’s question, if –you know, if there aren’t enough beds available in West Caldwell, does it matter –is it –West Caldwell is out of luck even though there are a lot of beds available in Caldwell, which is, you know, a couple –less than a mile away?

KNEEDLER: Yeah, I think the way you’re describing it, it would –it would be — it –it might be fair to say that that –that set of small and closely knit communities would be one community and –and the person wouldn’t wouldn’t basically be banished from where he lived or where he grew up by saying, you know, if there’s a shelter in this other location, then — then you could be expected to go there.

JUSTICE ALITO: There’s some tiny municipalities. What if a municipality doesn’t have a park, so if somebody is going to sleep outside, the only place where that person can sleep is going to have to be on the street?

KNEEDLER: I –

JUSTICE ALITO: What –does a time, place, or manner restriction work there?

KNEEDLER: I mean, certainly not on the street and –I mean, because of safety, traffic, et cetera. I mean, there are common-sense accommodations, and I think even in the smallest town, there are probably locations where a –a –a person could sleep. I –you know.

Justice Gorsuch had a similar exchange with Mr. Kneedler that showed the weakness of the position.

JUSTICE GORSUCH: Mr. Kneedler, I want to probe this a little bit further because it — it does seem to me the status/conduct distinction is very tricky. And I had thought that Robinson, after Powell, really was just limited to status. And now you’re saying, well, there’s some conduct that’s effectively equated to status and –but you’re saying involuntary drug use, you can regulate that conduct. That doesn’t qualify as status. You’re saying compulsive alcohol use, you can regulate that conduct in public. Public drunkenness, even if it’s involuntary, that doesn’t qualify as status, right?

KNEEDLER: Right.

JUSTICE GORSUCH: You’re saying you can regulate somebody who is hungry and has no other choice but to steal. You can regulate that conduct even though it’s a basic human necessity, and that doesn’t come under the — under the status side of the line, right?

KNEEDLER: Yes.

JUSTICE GORSUCH: Okay. But, when it comes to homelessness, which is a terribly difficult problem, you’re saying that’s different and –because there are no beds available for them to go to in Grants Pass. What –what about someone who has a mental health problem that prohibits them — they cannot sleep in –in a shelter. Are they allowed to sleep outside or not? Is that status or conduct that’s regulable?

KNEEDLER: I –I think the –the question would be whether that shelter is available.

JUSTICE GORSUCH: It’s available.

KNEEDLER: Well, no, available to the individual.

JUSTICE GORSUCH: It’s available to the individual.

KNEEDLER: But –

JUSTICE GORSUCH: It’s just because of their mental health problem, they cannot do it.

KNEEDLER: I –I think there might be –I mean, that’s –the mental health problem –

JUSTICE GORSUCH: Status or conduct?

KNEEDLER: The mental health situation is itself a status.

JUSTICE GORSUCH: Right, I know that.

KNEEDLER: Yes. But –but if the

JUSTICE GORSUCH: It has this further knock-on effect on conduct. Is that regulable

KNEEDLER: I –I –

JUSTICE GORSUCH: –by the state or not?

KNEEDLER: –I –I think that — I think if the –

JUSTICE GORSUCH: All the –you know, alcohol, drug use –

KNEEDLER: Right, right.

JUSTICE GORSUCH: –they have problems too and that that –and –and –but you’re saying that conduct is regulable. How about with respect to this pervasive problem of –of persons with mental health problems?

KNEEDLER: I –I think, in a particular situation, if the –if the –if the person would engage in violent conduct as –

JUSTICE GORSUCH:  No, no, no, don’t mess with my hypothetical, counsel. (Laughter.)

JUSTICE GORSUCH: I like my hypothetical.  I know you don’t. It’s a hard one, and that’s why I’m asking it.  I’m just trying to understand –

KNEEDLER: I –I –

JUSTICE GORSUCH: –the limits of your line.

KNEEDLER: I think it would depend on how serious the offense was on the –on the individual.

JUSTICE GORSUCH: It’s –it’s –it’s a very serious effect. The mental health problem is serious, but there are beds available.

KNEEDLER: Well, what I was trying to say, it would depend on how serious being required in –to –to go into that facility was on the person’s mental –if it would make his mental health situation a lot worse, then that may not be something that’s –

JUSTICE GORSUCH: So that’s status — that falls on the status side?

KNEEDLER: Well, I –I –I –I guess you could put it that way, but I –I guess what I’m saying is that –

JUSTICE GORSUCH: I –that’s what I’m wondering. I don’t –I’m asking you.

KNEEDLER: Well –

JUSTICE GORSUCH:  I really am just trying to figure out –

KNEEDLER: Well, what I was trying to say, it would depend on how serious being required in –to –to go into that facility was on the person’s mental –if it would make his mental health situation a lot worse, then that may not be something that’s –

JUSTICE GORSUCH: So that’s status — that falls on the status side?

KNEEDLER: Well, I –I –I –I guess you could put it that way, but I –I guess what I’m saying is that –

JUSTICE GORSUCH: I –that’s what I’m wondering.  I don’t –I’m asking you.

KNEEDLER: Well –

JUSTICE GORSUCH: I really am just trying to figure out –

KNEEDLER: No. You could view that as status or –

JUSTICE GORSUCH: You’re asking us to extend Robinson, and I’m asking how far?

KNEEDLER: Well, what I was going to say, you could — you could think of it as status, but I think another way to think about it, and this is our point about an individualized determination, is that place realistically available to that person because –

JUSTICE GORSUCH: It is in the sense that the bed is available –

KNEEDLER: I know that it’s –

JUSTICE GORSUCH: — but not because of their personal circumstances.

KNEEDLER: Right. Right. And that’s — and that’s my point. It — it’s available in a physical sense. It may be available to somebody else, but requiring an individualized determination might include whether that person could cope in that setting. That’s the only –

JUSTICE GORSUCH: So that — so that might be an Eighth Amendment violation?

KNEEDLER: Because it may not — yes, because it’s not available.

JUSTICE GORSUCH: So that’s an — it’s an Eighth Amendment violation to require people to access available beds in the jurisdiction in which they live because of their mental health problems?

KNEEDLER: If — if going there would — would –

JUSTICE GORSUCH: How about if they have a substance abuse problem and they can’t use those substances in the shelter? Is that an Eighth Amendment –

KNEEDLER: That is — that is not a — that is not a sufficient –

JUSTICE GORSUCH: Why? Why? They’re addicted to drugs, they cannot use them in the shelter. That’s one of the rules.

KNEEDLER: Well, if they — if they — if it’s the shelter’s rule, then they have no — they — they — they can’t go there if they’re — if they’re addicted. That’s not — that’s not —

JUSTICE GORSUCH: So that’s an Eighth — that’s an Eighth Amendment violation?

KNEEDLER: Well, no, the — the — the Eighth Amendment violation is prohibiting sleeping outside because the only shelter that is available –

JUSTICE GORSUCH: Is not really available to that person?

KNEEDLER: — won’t take them — won’t take them, yes. And that’s an individualized determination.

JUSTICE GORSUCH: Same thing with the alcoholic?

KNEEDLER: Yes.

JUSTICE GORSUCH: Okay. So the alcoholic has an Eighth Amendment right to sleep outside even though there’s a bed available?

KNEEDLER: If — if the only shelter in town won’t take him, then I think he’s in exactly — he’s in the same — he’s in the same condition. And there can be all sorts of reasons, and the City doesn’t normally –

JUSTICE GORSUCH: And judges across the country are now going to superintend this under the Eighth Amendment?

KNEEDLER: I — I actually don’t think that it — it requires the — again, I don’t think we should let the Ninth Circuit decisions –

JUSTICE GORSUCH: No, you want to –

KNEEDLER: — characterize this.

JUSTICE GORSUCH: Okay. You — you don’t like the class certification, but that question’s not before us, counsel.

KNEEDLER: No, but all we’re talking about is the core principle of Robinson, which is you cannot punish someone for a status. And — and I think communities guided by that principle, and it’s the only principle a court should be enforcing —

JUSTICE GORSUCH: How about –

KNEEDLER: — would retain a lot of flexibility.

JUSTICE GORSUCH: How about if there are no public bathroom facilities? Can — do people have an Eighth Amendment right to defecate and urinate outdoors?

KNEEDLER: No, we — we –

JUSTICE GORSUCH: Is that conduct or is that status?

KNEEDLER: I — it’s, obviously, there — there is conduct there and we are not suggesting that cities can’t enforce their –

JUSTICE GORSUCH: Why not, if there are no public facilities available to homeless persons?

KNEEDLER: The — the — that situation, you know, candidly, has never arisen. And whether or not there — I mean, in the litigation as I’ve seen. But no one is suggesting and we’re not suggesting that public urination and defecation laws cannot be enforced because there are very substantial public health reasons for that.

JUSTICE GORSUCH: Well, there are substantial public health reasons with drug use, with alcohol, and with all these other things too.

KNEEDLER: And they can all be –

JUSTICE GORSUCH: And you’re saying the Eighth Amendment overrides those. Why not in this circumstance right now?

KNEEDLER: No, I’m not — I’m not saying the Eighth Amendment overrides the laws against drug use.

JUSTICE GORSUCH: Oh, I know that.

KNEEDLER: Oh, I’m sorry.

JUSTICE GORSUCH: I know that.

KNEEDLER: No, I misunderstood what you –

JUSTICE GORSUCH: That one — that one the government wants to keep. I got that.

KNEEDLER: No, I misunderstood your question. Sorry.

JUSTICE GORSUCH: Yeah. Last one. How about — how about fires outdoors? I know you say time, place, and manner, but is there an Eighth Amendment right to cook outdoors?

KNEEDLER: No. I — I — I — I think what — what –

JUSTICE GORSUCH: That’s — that’s an incident — a human necessity every person has to do.

KNEEDLER: But this — but this is one — this is one of those things that, you know, is taken care of on the ground as a practical matter. There are restaurants where someone can go. There are –

JUSTICE GORSUCH: Well, no, no, we’re talking about homeless people.

KNEEDLER: No.

JUSTICE GORSUCH: They’re not going to go spend money at a restaurant necessarily. Let’s –

KNEEDLER: Well, there — there may be inexpensive places. Some people get –

JUSTICE GORSUCH: Let’s say there isn’t, okay?

KNEEDLER: And –

JUSTICE GORSUCH: Let’s say that there is no reasonable –

KNEEDLER: And — and the local community –

JUSTICE GORSUCH: Do they have a right to cook? They have a right to eat, don’t they?

KNEEDLER: They have — they have a right to eat, a right to cook if it entails having a fire, which I think it — it — it probably — it probably would, but — but, as I said, the — the — the eating, the feeding is taken care of in most communities by nonprofits and churches stepping forward –

JUSTICE GORSUCH: But if there isn’t

KNEEDLER: — as they have for 200 years.

JUSTICE GORSUCH: — but, if there isn’t, there’s an Eighth Amendment right to have a fire?

KNEEDLER: No, no, we are not saying there’s an Eighth Amendment –

JUSTICE GORSUCH: Well, I thought you just said there was.

KNEEDLER: Well, there — there’s food that you can eat without cooking it. I mean, they — and they could could get a handout from the — from a — from an individual that, you know, people can beg for money. I mean, there are — there are ways that this works out in practice.

Justice Kagan likewise had concerns about these “line-drawing” issues:

JUSTICE KAGAN: Well, I did want to you just about that. I mean, let’s say I’m with you, Mr. Kneedler, on the fact that you can’t prohibit being homeless, and because you can’t prohibit being homeless, you can’t prohibit sleeping outside if you are a genuinely homeless person. And let’s say I’m with you that the fact that this ordinance says, well, but we’re prohibiting using a blanket, that can’t be right. You know, you’re not, like, just, like, get hypothermia and the problem will — the constitutional problem will go away. But it does seem as though there are line-drawing issues as you go up, right? It’s a very cold night and somebody wants to make a fire. It’s raining and somebody wants to put up a tarp. The City has said you can sleep in particular areas, but it turns out that those areas have a ton of crime. You know, you could go on and on. And I’m not — how do you deal with questions like that? These are not, like, gotcha questions. This is, like, how do you deal with questions like that? Where is the line where the City can say our legitimate municipal interests can come in and say, you know, as to that, as to that, you can’t do that?

KNEEDLER: Yeah, so what — and there are several examples that you have there. With respect to tents and tarps, I guess, you — you were saying, I — I — I think there’s a difference between what you might need to realistically sleep outside if it’s raining, snowing, or something like that, and what you might prefer to have as a structure for long-term camping. As I mentioned, the City might say you can put up a tent if it’s very cold, but you’ve got to take it down in the morning. That’s like being in — some shelters say you can stay here overnight, but you have to leave during the day and you can come back. I mean, that might seem gratuitous of the City to do it. It might not want to do it. But — but we’re not saying that the Eighth Amendment would prevent it from doing it, and especially, as you say, if there’s no alternative and it’s, you know, 20 — 20 degrees. And with respect to fires, there are really important issues on the other side of that question. In an urban area, if you’re creating fires, there may be hazards in a — in a park. There might be —

JUSTICE KAGAN: So how does –

KNEEDLER: — there might be fireplaces in a park.

JUSTICE KAGAN: — how does a court make these judgments? Because these are tough judgments, and — and usually they’re the kind of judgments that we think of as municipal officials make them. But you’re saying, no, there’s a certain level where it’s out of their hands and it’s in the court hands. And I guess I want to know what the principle is where those questions go to the courts and — and why that principle is the right principle.

KNEEDLER: I think — I mean, I think there are two principles. One is that it — it’s the municipality’s determination certainly in the first instance with a great deal of flexibility how to address the question of homelessness and a time, place, and manner. And then municipalities should — should be able to choose the place, should be able to choose the attributes of that place, should be able to say we’re not going to allow more than, you know, 20 people or something, you know, to — to regulate it in that manner. And I think the — I think the principle, the Eighth Amendment principle, would be whether the — the City has effectively prevented sleeping outside because the protections needed from the elements are not available. And, certainly, in Grants Pass, I would think even a blanket would not be enough under some — but I think that’s the — I think that’s the touchstone. Are you basically — does it boil down to or is the core principle of Robinson that you can’t criminalize homelessness, which includes not being able to criminalize sleeping outside?

If you can’t sleep outside because of lack of protection from the elements, I think that’s the principle a court would — would apply. But the Ninth Circuit, in a number of cases, has gone way beyond that, and we think that’s really the source of the problems that have been identified in the briefs and not the core principle of — of Robinson.

By no means did the lawyer for the City of Grants Pass escape tough questioning. As the party appealing the Ninth Circuit’s ruling, that lawyer was first up at argument. The first 15-20 minutes of the argument was taken up by hardball questions from Justices Kagan, Sotomayor and Jackson. Like Mr. Kneedler, the lawyer for Grants Pass failed to answer tough questions directly and offered unhelpful non-responses.

Some examples include repeatedly refusing to answer the question can the government make it a crime to be homeless. Grants Pass eventually answered that question “no” but not until Justice Kagan had beat her into the ground for not answering the question. In this writer’s opinion, the lawyering on this case––by all parties–-was some of the worst ever witnessed at the U.S. Supreme Court. Another commentator rated the advocate performances as D minuses for everyone. That’s a bit harsh, but it was not good lawyering for a case at our highest court.

Prediction on the outcome

No one knows for sure how this case will turn out. Even a justice’s strong questions at oral argument that portend a certain result can simply be the justice playing devil’s advocate. But, given the questioning at oral argument, it seems likely that the U.S. Supreme Court’s decision will be 6-3 in favor of Grants Pass. It could also be unanimously 9-0 in favor of Grants Pass with Kagan, Sotomayor and Jackson urging for a more narrow reversal of the Ninth Circuit than the other six justices. Nevertheless, it seems very unlikely that the Court will uphold the Ninth Circuit’s holding that the 8th Amendment prohibits cities like Anchorage from enforcing its anti-camping ordinances whether the camper is a millionaire stargazer or a homeless individual.

What about the truly homeless that cannot comply with the law? It seems likely that the Court will state somehow that homeless individuals charged with the crime may raise the affirmative defense of “necessity” to defeat the charges. Alaska’s necessity defense is located at Alaska Statute 11.81.320, and requires a criminal defendant to prove by a preponderance of evidence at trial that their conduct was justified by necessity. That process puts the burden on the defendant to raise and prove the defense for each charge, which would then defeat a guilty verdict. That process would not stop local governments from enforcing anti-camping laws; rather, it would allow individual defendants to defeat the imposition of a criminal verdict.

Lee Baxter is a practicing Anchorage attorney. He provides periodic legal analysis for the Landmine in his spare time – when he is not fishing. He encourages prospective clients to first seek out a better attorney.

Subscribe
Notify of

4 Comments
Oldest
Newest Most Voted
Inline Feedbacks
View all comments
floridawoman
1 month ago

Sounds like across the country prisons are going to need more beds to “house” the arrested homeless. It is not like the unhoused will just disappear. Just saying.

Dan
1 month ago
Reply to  floridawoman

Very few municipalities will arrest homeless people for camping. They will haze and cite and move on. Catch and release. For, better or worse – we are getting ready to put the railroad bulls back to work. I have to say, that transcript makes Neil Gorsuch look totally uninterested in actually examining a difficult question, and more interested in badgering counsel. But, I’m glad he asked the hypothetical that he asked, as poorly formed as it may have been. If a person is mentally ill such that he “can’t” reside in a shelter, shall we haze, arrest and imprisoning him… Read more »

Akwhitty
1 month ago
Reply to  Dan

“shall”. This is an ambiguous word according to our legislators.

Akwhitty
1 month ago

This travesty will be seen in our parks and landscape. I’m getting use to disfunction everywhere I see. Drugged out people, trash camps, groups of men and women doing nothing. That’s why I’m voting for Suzanne Lafrance. I just hate change .