Tent Camps To Court: The Legal Fight Over Homelessness

By Jack Karp | March 25, 2022, 8:04 PM EDT ·

Unhoused people, like those living in this Chico, California, encampment after losing their homes in a 2018 wildfire, are increasingly suing cities to block enforcement of laws they say criminalize homelessness. (AP Photo/John Locher)

Andy Lambach used to live in Paradise.

But after his home in Paradise, California, burned during a 2018 wildfire, he wound up sleeping under a bridge and beside a creek in Chico, according to a recent lawsuit.

Since then, Lambach, who has congestive heart failure and bipolar disorder, has been forced to move repeatedly by police, threatened with arrest and had his tent, clothes and food confiscated several times, according to court documents.

"I do not know anywhere in Chico where I can lawfully sleep or rest without fear of another round of notices to move or being arrested," he told a California federal court in April 2021.

Several hours south, the tent encampment outside Harry Tashdjian's Los Angeles upholstery supply business is taking a toll on his company.

Customers would rather patronize competitors than navigate the crime and trash outside his store, he says. He's had a forklift stolen, been declined insurance coverage and spent thousands on added security.

"I always say I think this is rock bottom," Tashdjian told Law360, "and then it gets worse."

Lambach and Tashdjian both feel the impact of the nation's homelessness crisis, but in very different ways. And each has joined in on the cascade of lawsuits aimed at forcing cities to solve the problem — also in very different ways.

Unhoused plaintiffs want municipalities to stop enforcing laws they say criminalize homelessness, while residents and business owners want cities to clean up encampments, including by enforcing those same laws. Cities say they're caught in the middle.

But the suits are likely to continue until the political branches do more to address the problem, say attorneys.

"The city and the county have spent decades, decades flailing around these issues, spending lots of money, but the problem continues to get worse and worse," said Matthew Donald Umhofer of Spertus Landes & Umhofer LLP, an attorney involved in one case. "Darn right people are going to resort to the courts."

Fighting the Criminalization of Homelessness

Municipalities are increasingly being sued over homelessness by people who are homeless, say experts.

Lambach is one of several unsheltered plaintiffs who sued the city of Chico last year to block it from enforcing ordinances against public camping, remaining in closed parks and storing personal property in public.

The unhoused and their advocates have launched similar suits against other local governments in California, as well as in Florida, Vermont, Pennsylvania, Idaho, Hawaii and elsewhere.

That's because as homelessness has worsened, cities have increasingly enacted laws that essentially make it illegal to be without shelter, according to Tristia Bauman, senior attorney at the National Homelessness Law Center, which has participated in legal challenges to these laws.

In 2019, 72% of 187 cities surveyed had at least one law against camping in public, according to her organization's 2022 litigation study.

"People have rights under the Constitution and those rights aren't abandoned once a person loses access to housing," Bauman said.

The suits make a variety of constitutional claims, including that the ordinances violate plaintiffs' rights to due process and free speech, as well as protections against unlawful property seizure, according to the organization.

One of the most common allegations is that these laws run afoul of the Eighth Amendment's prohibition against cruel and unusual punishment, the litigation study found.

Under Ninth Circuit precedent, statutes against sleeping outside constitute cruel and unusual punishment if there are more unsheltered people than available shelter beds, explained Robert Newman, general counsel at the Western Center on Law and Poverty who represented the Chico plaintiffs.

"As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter," the appeals court wrote in Martin v. Boise .

There's "no question" that lawsuits like these can be effective in forcing local governments to deal with homelessness, according to Newman, who said, "In many cases, in the absence of a lawsuit, the city may have no strategy."

Those suits are succeeding.

One case filed by unsheltered Los Angeles residents resulted in a 2019 settlement preventing police from confiscating the possessions of homeless people in the city's Skid Row area.

In January, the Chico lawsuit led to that city's agreement not to enforce its anti-camping and other ordinances until it builds emergency housing, according to Newman.

Chico's city manager declined to comment to Law360 on the deal, saying, "there are facets of the settlement still being finalized, so city operational staff can not speak as freely as we would desire."

But 60% of legal challenges to camping bans and the dismantling of tent encampments have resulted in favorable outcomes for plaintiffs, according to the National Homelessness Law Center report.

These suits are an important tool not only in stopping the criminalization of homelessness, but also in helping ultimately end homelessness itself, insists Bauman.

They can reduce unhoused people's displacement and involvement with the criminal justice system. That, in turn, makes them more stable and better able to access employment, education and housing services, she said.

"All of that has the ultimate benefit of reducing barriers to escaping homelessness, reducing the harm that unhoused people face while experiencing homelessness, which has a cascading series of benefits," Bauman said. "There's a lot of benefit in stopping those policies and litigation is a tool for doing that."

Pushing Cities to Act

Business owners and residents are taking a different tack when suing cities over their response to homelessness, sometimes pushing them to enforce some of the same ordinances unhoused plaintiffs' suits are trying to block.

Tashdjian, for instance, is a plaintiff in a suit against the city and county of Los Angeles over their failure to address the encampment outside his business.

He's joined by a diverse set of residents, business owners, disabled people and even homeless and formerly homeless individuals impacted by increased crime and fires, and a deterioration of public health, safety and the environment in the city's downtown, according to Umhofer of Spertus Landes, who represents the plaintiffs.

In addition to claims of negligence and nuisance, they allege the city and county are violating the Americans with Disabilities Act by failing to maintain accessible sidewalks and the Constitution's due process and equal protection clauses.

"Traditional claims like nuisance and negligence don't tend to get the city and the county's attention as readily as constitutional issues," Umhofer said.

One important constitutional issue involves the doctrine of state-created danger, under which it can be a violation of due process if a state actor puts somebody in danger, according to Umhofer.

"There are several decisions that the city and the county have clearly made on the issue of homelessness that have made people less safe and put people at greater risk," Umhofer said, noting that Los Angeles' policy of steering unhoused people into Skid Row and out of other neighborhoods is one example.

Attorneys for Los Angeles declined to comment on the lawsuit. But the director of communications for the Los Angeles County Homeless Initiative told Law360 that in the past few years, the county and city have "significantly increased" temporary and permanent housing stock, and more construction is underway.

Meanwhile, suits have also been filed by residents and business owners in Austin, Texas; Santa Fe, New Mexico; Oakland, California; and Minneapolis, with some asking courts to order that cities enforce bans on public camping and other laws.

Some of these cases are also succeeding.

A case against San Francisco over conditions in its Tenderloin district resulted in a 2020 settlement in which the city agreed to offer hotel rooms to unhoused people and establish safe sleeping villages.

A federal judge issued a preliminary injunction in Umhofer's suit against Los Angeles, ordering the city and county to provide shelter to Skid Row's homeless population within 180 days and to set aside $1 billion to address the issue, among other steps.

The Ninth Circuit vacated that injunction, but the case is in court-ordered settlement talks, according to Umhofer.

Until politicians address the issue, frustrated city dwellers will continue to sue, attorneys and plaintiffs say.

"We're out here in the trenches seeing it day in and day out," Tashdjian said. City officials "need to clean it up. They need to provide services, provide shelter, enforce the law."

Walking a 'Tightrope'

Both sets of cases make it harder to address homelessness by forcing cities to "walk a tightrope to address the competing lawsuits," according to Amanda Karras, executive director and general counsel of the International Municipal Lawyers Association.

"Everyone's end goal should be trying to alleviate homelessness, and local governments are working to do that," Karras said. "These lawsuits can often detract from the solutions."

For instance, suits attempting to block the enforcement of certain ordinances, like Martin v. Boise, can be "challenging" for local governments, forcing them to redraft laws and retrain police and blocking them from dealing with encampments, she said.

Tashdjian traces the rise in homelessness outside his business directly to the 2019 settlement barring Los Angeles from enforcing certain laws.

Meanwhile, suits from residents and business owners trying to force cities to implement certain policies are "myopic" and aimed at reducing the "visibility" of homelessness rather than homelessness itself, according to Bauman of the National Homelessness Law Center. As a result, they can foreclose potential solutions.

Olympia, Washington, for example, tried to establish a sanctioned encampment where unhoused people could centrally access services, but local businesses sued to stop the project, she said.

Fighting lawsuits also siphons resources from addressing the underlying problem, according to Karras.

Homelessness is a complicated issue and best addressed by elected officials and not unelected judges, she insisted, pointing to a judge's order that Los Angeles place $1 billion in escrow to build temporary shelters.

Whether a local government should spend tax money on temporary shelters, long-term housing, addiction treatment facilities or mental health counseling is a political decision and not a judicial one, Karras said.

"If we allow unelected judges to dictate policy, there is no way to hold them accountable for their decisions," she said.

Whether either — or both — type of lawsuit is an effective method to address the homelessness crisis or is making the situation worse, courts will likely see more of each, attorneys agree.

They disagree, though, about whether that's a good thing.

"There is no doubt that homelessness has reached a crisis point in many communities around the country, but lawsuits against cities that are actively trying to alleviate the problem are not the answer," Karras said.

But until the political branches succeed in addressing the problem, these suits may be necessary, say others.

"There is a movement in this country around housing as a human right," Bauman said, and "litigation is a tool that can support movements. That is a big-picture goal and a long-term goal that the cases are aimed at as well."

--Editing by Nicole Bleier and Kelly Duncan.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

Hello! I'm Law360's automated support bot.

How can I help you today?

For example, you can type:
  • I forgot my password
  • I took a free trial but didn't get a verification email
  • How do I sign up for a newsletter?
Ask a question!