Attorney General Knudsen calls on Supreme Court to overrule restrictions on homeless camp bans

HELENA – Montana Attorney General Austin Knudsen, in a petition filed yesterday, led a coalition of 20 attorneys general in asking the Supreme Court of the United States (SCOTUS) to reverse a lower court’s decision that prohibits states and local governments from enforcing laws that prevent public spaces from becoming homeless encampments.

In the petition for a writ of certiorari submitted Monday in the case of Johnson v. City of Grants Pass, the attorneys general argue that the Ninth Circuit’s 2018 decision leaves the states powerless to help relieve the problem, constitutionally the states have criminal law and land-use policy authority, and that the decision is an outgrowth of the “evolving standards of decency” jurisprudence.

“The Ninth Circuit’s holdings are wrong on at least two levels. First, the Constitution nowhere strips States of the power to regulate use of public spaces. It empowers States and guarantees an inviolable sovereignty meant to address local issues like homelessness,” the attorneys general wrote in the brief. “Second, the Ninth Circuit relied on this Court’s ‘evolving standards of decency’ jurisprudence, which lacks textual, historical, or structural support. The Court should put that troublesome jurisprudence to bed once and for all.”

In 2018, the Ninth Circuit wrongly found that the Eighth Amendment provided the right to “sleep, camp, and defecate in public spaces.” Then in 2023, the court went even further to hold that the Eighth Amendment prevents civil fines for “engaging in involuntary, unavoidable life sustaining acts.” Meanwhile, cities in Montana and across the western United States are struggling to combat homelessness in their communities with their hands tied by the Ninth Circuit ruling.

For example, in Montana, Missoula had 60 separate encampments across its 400 acres of public parks as of August 2023. However, the city is restricted in its ability to combat the issue following the 2018 decision that said jurisdictions must have bed space that outnumbers homeless persons before enforcing an anti-camping ordinance. Since the city cannot meet that requirement, residents are forced to deal with dirty and unsafe parks, vehicles “full of human waste,” and debris clogging the city’s irrigation and waterways. Similar problems are occurring in other Montana cities including Billings, Bozeman, and Kalispell.

“When it comes to public encampments, States have significant land interests. States regulate public encampments to protect natural resources, prevent wildfires, preserve the value of recreation, and maintain an area’s dignity and public value,” the attorneys general wrote. “The Ninth Circuit’s decision leaves States unable to protect those interests.”

Attorneys general from Alabama, Alaska, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, and West Virginia also joined the brief led by Montana and Idaho.

Click here to read the petition.

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