A Legal Right to Shelter: The Response to Ending the Criminalization of Homelessness

by Anna Marchiony, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

In 2022, over half a million Americans experienced homelessness.1The terms “unhoused,” “unsheltered,” and “person experiencing homelessness” are current terms used to address the issues discussed in this article. However, for the sake of uniformity, this article uses the terms “homelessness” and “homeless person/population” to stay consistent with the language governments, courts, and news outlets still use; State of Homelessness: 2023 Edition, Nat’l All. To End Homelessness, https://endhomelessness.org/homelessness-in-america/homelessness-statistics/state-of-homelessness/. This number has been on the rise since 2017,2Id. a statistic that some link to the Ninth Circuit Court of Appeals’ decision in Martin v. City of Boise.3Rachel M. Cohen, The Little-Noticed Court Decision that Changed Homelessness in America, Vox (June 12, 2023), https://www.vox.com/23748522/tent-encampments-martin-boise-homelessness-housing. Cities and states have long struggled to implement successful programs and legislation to combat homelessness and, though Martin is regarded as a win for the ethical treatment of homeless individuals, the decision has made it even more difficult for governments to address the growing homeless population.

Part II of this article will discuss the landmark decision of Martin v. City of Boise. It will also discuss how cities and states have attempted to comply with Martin’s mandates, either by ceasing the use of anti-camping ordinances or by finding loopholes in Martin that permit the continuance of anti-camping ordinances. Additionally, Part II will discuss recent legislative trends as governments seek to find new solutions that align with Martin. Part III will explore whether a legal right to shelter is a viable option in order to give guidance to cities and states on how to comply with Martin and whether a legal right to shelter can help accomplish the goals of reducing the homeless population. Part IV concludes by calling for a recognition of a legal right to shelter in all states.

II. Background

A. The Precedent of Martin v. City of Boise

In response to concerns about the growing homeless population, many American cities enacted what are now known as “anti-camping ordinances.” Anti-camping ordinances are laws that criminalize sleeping on or erecting temporary shelter on public property.4Eric S. Tars, Criminalization of Homelessness, Nat’l Homelessness L. Ctr. (2021), https://nlihc.org/sites/default/files/AG-2021/06-08_Criminalization-of-Homelessness.pdf. An example of an anti-camping ordinance is prohibiting anyone from using “any of the streets, sidewalks, parks, or public places as a camping place at any time,” and prohibits “the use of public property as a temporary or permanent place of dwelling, lodging, or residence.”5Martin v. City of Boise, 920 F.3d 584, 603-04 (9th Cir. 2019) (quoting Boise City Code § 9-10-02). While anti-camping ordinances may have been enacted for benign purposes, the practical use has been to fine and criminally penalize homeless people who have no choice but to sleep, sit, or lay on public property.6Housing Not Handcuffs 2021: State Law Supplement, Nat’l Homeless L. Ctr. (Nov. 2021), https://homelesslaw.org/wp-content/uploads/2021/11/2021-HNH-State-Crim-Supplement.pdf.

The Ninth Circuit Court of Appeals addresses the constitutionality of anti-camping ordinances in the landmark case Martin v. City of Boise.7920 F.3d 584. The plaintiffs, six current or former residents of Boise, were cited by the police for violating the city’s anti-camping ordinance during periods of homelessness.8Id. at 603. The plaintiffs sued, claiming that the anti-camping ordinance violated the Eighth Amendment’s prohibition of cruel and unusual punishment.9Id. The Ninth Circuit agreed, holding that “an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them.”10Id. at 604. Relying on Supreme Court precedent,11Id. at 615-17. The Ninth Circuit likened the criminalization of homeless to the criminalization of being an addict, which the Supreme Court held to be a violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment in Robinson v. California, 370 U.S. 660, 667 (1962). The Ninth Circuit also analogized from Powell v. Texas, 392 U.S. 514 (1968), in which five justices agreed that “the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being.” Powell, citing Robinson at 1291. the Ninth Circuit stated that since the state cannot criminalize the status of homelessness, the state cannot criminalize conduct that is unavoidable and biologically necessary as a human being.12Id. at 617. This effectively meant that cities could not use anti-camping ordinances to fine or jail homeless people for sleeping on public property when no shelter beds were available. Although this holding certainly limited the enforceability of anti-camping ordinances, the Ninth Circuit acknowledged that cities may still prohibit sitting, sleeping, or laying at certain times or locations.13Id. at 618. Moreover, the Ninth Circuit was clear that it was not mandating cities to provide sufficient shelter.14Id. at 617.

B. Grappling with Martin v. City of Boise’s Mandates

In the wake of Martin, cities have struggled to navigate how to address the issue of homelessness. Some cities read Martin as a mandate to stop all citations of the homeless, including anti-camping ordinances and other laws such as those against drug use, disorderly conduct, and public urination. Other cities tried to identify exceptions to the Martin decision and continued issuing anti-camping citations. Both approaches led to lawsuits against the cities. Most importantly, while Martin vindicated a homeless person’s right to simply exist outside, the decision did little if anything to address the root causes of homelessness.

1. Abandonment of Anti-Camping Ordinances Led to Public Nuisance

Some cities, like Phoenix, Arizona, stopped issuing anti-camping ordinances, but did little to help their growing homeless population. In Phoenix, many homeless people live along a stretch of road known as “the Zone,” where semi-permanent encampments are erected on public sidewalks.15Katya Schwenk, Phoenix’s Largest Homeless Encampment Has Sparked a Lawsuit. What Now?, Phoenix New Times (Aug. 17, 2022), https://www.phoenixnewtimes.com/news/phoenixs-largest-homeless-encampment-sparks-lawsuit-14213947. While the Zone has always attracted a homeless population due to its proximity to social service agencies, the number of those who live there has significantly increased in recent years.16Id. Many point to the Martin decision as the turning point.17Id. In an effort to comply with Martin, Phoenix halted the issuance of anti-camping citations in 2021.18Id. However, Phoenix also stopped enforcing any other laws in the Zone, such as those against public urination, disorderly conduct, and drug use.19Id. Note that Martin leaves it unclear as to whether some of these laws would be enforceable as the unavoidable consequence of being homeless.

As a result, local businesses and property owners filed a lawsuit against the city, alleging that Phoenix has “created, maintained, and/or failed to abate a public nuisance,”20Under Advisement Ruling at 2, Brown v. City of Phoenix, 2023 Ariz. Super. LEXIS 24(Ariz. Super. Ct. Mar. 27, 2023) (No. CV 2022-010439), https://www.goldwaterinstitute.org/wp-content/uploads/2023/03/The-Zone-ruling-preliminary-injunction.pdf. which has resulted in irreparable harm to those who live or work in the area.21Schwenk, supra note 14 Petitioners highlighted the increase in violent crime, property crime, and drug use in the Zone, as well as the constant presence of trash, urine, and feces, leading to a decrease in the value of the properties and in the number of patrons to businesses.22Under Advisement Ruling, supra note 20, at 6-8.

In response, Phoenix attempted to remedy the issues by conducting “clean ups” of the Zone.23Schwenk, supra note 15. “Clean ups” involve shutting down roads, asking those in the encampment to move, power washing the area, and then allowing people to resettle in the area. These clean ups were reminiscent of previous “sweeps” that resulted in the Department of Justice’s investigation into the Phoenix Police Department in 2021.24Jessica Boehm, US Cities See Homelessness as Blight Problem. Could Phoenix DOJ Investigation Change That?, AZ Cent. (Aug. 25, 2021), https://www.azcentral.com/story/news/local/phoenix/2021/08/25/justice-department-investigation-phoenix-homeless-rights-could-have-national-implications/8154387002/. Phoenix launched an encampment clean up program in 2018, which led to a Department of Justice investigation regarding whether the clean ups resulted in the unlawful seizure and disposal of the belongings of homeless individuals. In response, the ACLU filed a civil rights lawsuit against the City of Phoenix on behalf of homeless individuals, alleging violations of the Fourth, Fourteenth, and Eighth Amendments.25Complaint for Declaratory and Injunctive Relief at 15-18, Fund for Empowerment v. City of Phoenix, 2022 U.S. Dist. LEXIS 234327, (D. Ariz. Nov. 30, 2022) (No. CV-22-02041), https://www.acluaz.org/sites/default/files/2022.11.29_plaintiffs_complaint.pdf. The ACLU alleged that the City of Phoenix unreasonably seized and destroyed property, thus violating the Fourth Amendment; deprived the plaintiffs of their property without due process, thus violating the Fourteenth Amendment; and violated the Eighth Amendment’s prohibition of cruel and unusual punishment. The lawsuit alleged that the clean ups “criminalize, punish, and scatter” the homeless population, as well as result in the seizure and destruction of property belonging to homeless people.26Id. at 3-4. The ACLU stated that “the City is knowingly penalizing unsheltered residents for engaging in unavoidable human activities.27Id. at 4.” The District Court granted the injunction in part, permitting the City to conduct the clean ups, but prohibiting them from seizing and destroying property or enforcing anti-camping bans so long as there are more unsheltered people than beds.28Order at 1-2, Fund for Empowerment v. City of Phoenix, 2022 U.S. Dist. LEXIS 234327, (D. Ariz. Nov. 30, 2022) (No. CV-22-02041), https://www.acluaz.org/sites/default/files/12.15.2022_ffe_v._phx_injunctive_order.pdf.

Ultimately, the Superior Court of Arizona Maricopa County found that Phoenix was maintaining the Zone as a public nuisance.29Under Advisement Ruling, supra note 20, at 14. Phoenix expressed concern regarding how to implement a remedy that also complies with Martin.30Id. at 19. However, the court stated that Phoenix “erroneously applied the Martin case” and that the city must still enforce other “health, quality of life, and even criminal laws and ordinances in the Zone.”31Id. at 3. While the Superior Court of Arizona Maricopa County encourages the City of Phoenix to enforce health, quality of life, and other criminal laws against homeless individuals, the constitutionality of doing so is unclear. In Martin, the Ninth Circuit noted that whether other ordinances are consistent with the Eighth Amendment will depend on whether the ordinance punishes the person for “lacking the means to live out the ‘universal and unavoidable consequences of being human.’” 920 F.3d at.8 (quoting Jones v. City of Los Angeles, 444 F.3d 1118, 1136 (9th Cir. 2006)). The court stated that “the City created and maintains the dire situation that currently exists in the Zone through its failure, and in some cases refusal, to enforce criminal and quality of life laws in the Zone.”32Id. at 15. The court emphasized that Martin’s mandate only applies when people truly have nowhere else to go.33Id. at 19. The Court opined that some individuals are simply “service resistant” and are homeless by choice.34Id. at 5. The court ordered Phoenix to abate the nuisance and develop a plan to address the issue.35Under Advisement Ruling, supra note 20, at 22. Although the court ordered the City to clear the encampment, it did not provide any guidance on how to accomplish this, nor on how to address the root causes of homelessness in the city.36Schwenk, supra note 15.

2. Maintaining Anti-Camping Ordinances Violates Constitutional Rights

Other cities, like San Francisco, California sought to continue enforcement of anti-camping ordinances by complying with Martin’s parameters.37920 F.3d at n.8 (Noting that “even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible”). Despite taking the opposite route as Phoenix, San Francisco still ended up entangled in a lawsuit, this time brought by the Coalition on Homelessness (“Coalition”).

Among other causes of action,38Complaint for Declaratory and Injunctive Relief at 85-97, Coalition on Homelessness v. City & Cty of San Francisco, 2022 U.S. Dist. LEXIS 231388 (N.D. Cal. Dec. 23, 2022) (No. 3:22-cv-05502), https://lccrsf.org/wp-content/uploads/2022/09/Filed-Complaint-COH-et-al.-v.-CCSF.pdf. Other causes of action include unreasonable search and seizure under the Fourth Amendment, violation of due process under the Fourteenth Amendment, exposure to a state-create danger under the Fourteenth Amendment, violations of the Americans with Disabilities Act, and conspiracy to deprive plaintiffs of their constitutional rights, as well as various similar violations under the California Constitution. the Coalition alleged that San Francisco violated the Eighth Amendment by engaging in “a custom and practice of citing, fining, and arresting . . . unsheltered persons to force them to ‘move along’ from public sidewalks and parks.”39Id. at 3. The Coalition noted that since Martin, the City continued to make arrests and issue citations pursuant to anti-camping laws despite there being an inadequate number of shelter beds. The Coalition sought declaratory and injunctive relief to prevent the City from enforcing anti-camping ordinances and conducting sweeps of homeless encampments.

Acknowledging the severe shortage of shelter beds, the District Court granted the Coalition’s request for injunctive relief.40Order on Motion for Preliminary Injunction at 50, Coalition on Homelessness v. City & Cty of San Francisco, 2022 U.S. Dist. LEXIS 231388 (N.D. Cal. Dec. 23, 2022) (No. 22-cv-05502), https://lccrsf.org/wp-content/uploads/2022/12/PI-Order.pdf. However, the City failed to comply41Plaintiffs’ Notion of Motion and Motion to Enforce Preliminary Injunction; Memorandum of Points and Authorities at 2-3, Coalition on Homelessness v. City & Cty of San Francisco, 2022 U.S. Dist. LEXIS 231388 (N.D. Cal. Dec. 23, 2022) (No. 22-cv-05502), https://lccrsf.org/wp-content/uploads/2023/05/Pls-Motion-to-Enforce.pdf. and appealed the District Court’s order,42Preliminary Injunction Appeal at 2, Coalition on Homelessness v. City & Cty of San Francisco, 2022 U.S. Dist. LEXIS 231388 (N.D. Cal. Dec. 23, 2022) (No. 22-cv-05502), https://www.sfcityattorney.org/wp-content/uploads/2023/01/2023-01-23-Case-4.22-cv-05502-DMR-Notice-of-Appeal.pdf. stating that the injunction “puts the City in an impossible situation.”43Annie Gaus, San Fransisco Appeals Court Order Banning Homeless Sweeps, Citing “Impossible Situation,” The San Francisco Standard (Jan. 23, 2023), https://sfstandard.com/2023/01/23/san-francisco-appeals-court-order-banning-homeless-sweeps-citing-impossible-situation/. The Governor of California asserts that the court’s interference prevents the state from solving a critical problem, and hopes the case will go to the United States Supreme Court.44Associated Press, San Francisco Homeless Encampments: Gavin Newsom Says State Will Intervene in Sweeps Ban, The San Francisco Standard (Sept. 13, 2023), https://sfstandard.com/2023/09/13/gavin-news-state-will-speak-on-case-over-san-francisco-encampments/. As of September 2023, the lawsuit is ongoing and the injunction remains in effect.

3. Combatting Homelessness with State-Sanctioned Encampments

Some states have turned to the Cicero Institute, a Texas think tank, urging the creation of state-sanctioned encampments to find solutions that comply with Martin. Cicero Institute’s model legislation implements state-sanctioned homeless encampments with six-month residency limits and makes sleeping on public property a Class C misdemeanor.45Model Bill: Reducing Street Homelessness Act, Cicero Inst. (2022), https://ciceroinstitute.org/wp-content/uploads/2023/02/Homelessness-Policy-Model-Language-.pdf. The model legislation also permits a state’s attorney general to bring a civil action against cities that violate the legislation, as well as prohibit state and federal funds from going to any city that fails to enforce the legislation.46Id. As of 2022, nine states have introduced bills with similar or identical language to the Cicero model legislation.47Kristina Hernández, Homeless Camping Bans Are Spreading. This Group Shaped the Bills, Stateline (Apr. 8, 2022), https://stateline.org/2022/04/08/homeless-camping-bans-are-spreading-this-group-shaped-the-bills/.

One such state is Missouri, where SB 1106 went into effect on January 1, 2023. The Missouri law, like Cicero’s, redirected federal and state funding away from construction of affordable housing and towards the creation of temporary, state-sanctioned camps that provide substance abuse and mental health treatment.48Rebecca Rivas, New Missouri Law Makes Sleeping on State Land a Crime for People Experiencing Homelessness, Missouri Indep. (June 29, 2022), https://missouriindependent.com/2022/06/29/new-missouri-law-makes-sleeping-on-state-land-a-crime-for-people-experiencing-homelessness/?utm_source=TMP-Newsletter&utm_campaign=4a3bbaa47c-EMAIL_CAMPAIGN_2023_08_25_07_08&utm_medium=email&utm_term=0_5e02cdad9d-4a3bbaa47c-%5BLIST_EMAIL_ID%5D. The law makes it a Class C misdemeanor for people experiencing homelessness to sleep on state-owned land.49Id. It also authorizes the Missouri attorney general to sue local governments who do not enforce the laws.50Id. Local governments can also lose federal and state funding if they do not comply with SB 1106.51Id.

Sponsors of the bill believe that the legislation will provide treatment and quality places for the homeless to live.52Id. Cicero Institute believes that the state-sanctioned encampments will encourage self-sufficiency and decrease violence.53Clara Bates, Missouri’s New Law Criminalizing Homelessness is Already Causing “Uncertainty and Fear,” NPR (Jan. 17, 2023), https://www.kcur.org/news/2023-01-17/missouris-new-law-criminalizing-homelessness-is-already-causing-uncertainty-and-fear. Additionally, by providing state-sanctioned temporary housing, states may be able to assert that anti-camping ordinances are enforceable as every person has an option for shelter. However, these goals likely will not come to fruition.

The National Coalition for Housing Justice has brought the bill to the attention of the Department of Housing and Urban Development, expressing concern that the bill may violate the federal Housing First initiative.54Rivas, supranote 48. The bill diverts both state and federal funding intended for the creation of permanent housing to the creation of temporary housing, as well as substance abuse and mental health treatment. The bill also raises many additional questions regarding enforcement, as it does not clearly define what is encompassed by “state-owned land.”55Bates, supra note 53. Moreover, Missouri is already facing a lawsuit regarding SB 1106. While the challenge to the Missouri bill is quite different than those filed in west coast cities and states,56Petition for Declaratory and Injunctive Relief at 8-9, Byrd v. State of Missouri et. al., No. 22AC-CC05079 (Mo. Mar. 24, 2023), https://www.citizen.org/wp-content/uploads/Byrd-v.-Missouri-Petition.pdf. The petition alleges violations of Missouri Constitution’s single-subject requirement, clear-title requirement, and original-purpose requirement. the driving cause behind the lawsuit remains the same: to prevent additional harm to those who are unhoused.57Joe Harris, Advocates for the Unhoused Sue Over Missouri’s Ban on Sleeping on Public Land, Courthouse News Serv. (Sept. 6, 2022), https://www.courthousenews.com/advocates-for-the-unhoused-sue-over-missouris-ban-on-sleeping-in-public-land/. Advocates for the homeless believe that while the Missouri bill and Cicero model legislation offer immediate solutions for shelter, they do little to address the underlying causes of homelessness and are not viable as long-term solutions.58Hernández, supra note 47.

State-sanctioned encampments are also unlikely to be permitted in states where Martin is precedent. The lawfulness of these types of encampments was addressed by the District Court in Warren v. City of Chico.59Warren v. City of Chico, No. 2:21-CV-00640, 2021, U.S. Dist. LEXIS 128471 (E.D. Cal. July 8, 2021). The plaintiffs sought injunctive and declaratory relief preventing the city from enforcing anti-camping ordinances and destroying their property during sweeps.60Id. at 1-2. The City of Chico attempted to remedy the issue by creating a state-sanctioned outdoor temporary shelter.61Id. at 6. In its decision, the court addressed the question of “what is shelter.”62Id. While the City tried to assert that shelter is simply a place for unhoused persons to go, the court declared that “[c]alling a plot of land a shelter does not make it so.”63Id. at 6-7. The court suggested that true shelter requires an indoor structure that offers real protection and is equipped with the basics such as running water and electricity.64Warren, U.S. Dist. LEXIS 128471, at *7-8. “Even Martin, which does not directly answer this question, seems to contemplate shelter will offer individuals a place to sleep ‘indoors.’ 920 F.3d at 617. Under none of these definitions is the airport site a ‘shelter.’ It is an asphalt tarmac with no roof and no walls, no water and no electricity. It is an open space with what amounts to a large umbrella for some shade. It affords no real cover or protection to anyone.” Furthermore, the court noted that the state-sanctioned encampment still violates the City’s anti-camping ordinance.65Id. at n.3. The City cannot just invite the homeless to temporarily live on public property; rather, the City must change the anti-camping ordinance and formally codify whether any exempted spaces exist.66Id.

4. A Legal Right to Shelter

New York, on the other hand, has not had to frantically grapple with the requirements set forth in Martin. The state and city of New York have had a firmly established legal right to shelter since the 1980s. In 1979, the Coalition for the Homeless brought a class action lawsuit against New York City on behalf of all homeless men living in the city.67Coalition for the Homeless, The Callahan Legacy: Callahan v. Carey and the Legal Right to Shelter, https://www.coalitionforthehomeless.org/our-programs/advocacy/legal-victories/the-callahan-legacy-callahan-v-carey-and-the-legal-right-to-shelter/. The Coalition argued that pursuant to Article XVII of the New York Constitution,68Ny Const. art. XVII, § 1 (“The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such a manner and by such means, as the legislature may from time to time determine.”). all persons have a constitutional right to shelter. In 1981, the lawsuit was settled and the Supreme Court of the State of New York issued a consent decree, stating that the city “shall provide shelter and board to each homeless man who applies for it,” provided the man either qualifies for the home relief program or is need of shelter due to a “physical, mental, or social dysfunction.”69The Callahan Consent Decree at 2, Callahan v. Carey, 307 A.D.2d 150 (N.Y. June 10, 2003) (1981) (No. 42582/79), https://www.escr-net.org/sites/default/files/callahanconsentdecree_0.pdf. The decree also outlined specific standards that all shelters must meet.70Id. Standards include cleanliness requirements, capacity limits, access to mail, telephones, and transportation, as well as other standard of living requirements. The consent decree and the legal right to shelter was extended to protect homeless women in 198371Eldredge v. Koch, 98 A.D.2d 675 (App. Div. 1st Dept. 1983). and homeless families with children in 1986.72McCain v. Koch, 70 N.Y.2d 109 (1987).

Since the consent decree and the court’s finding of a legal right to shelter, New York has been forced to open new shelters and develop concrete plans for housing homeless individuals. While short-term shelters still exist in New York, the city has invested in supportive housing options.73Jennifer Egan, A Journey from Homelessness to a Room of One’s Own, The New Yorker (Sept. 11, 2023), https://www.newyorker.com/magazine/2023/09/18/a-journey-from-homelessness-to-a-room-of-ones-own?utm_source=TMP-Newsletter&utm_campaign=a62d25a0b3- Supportive housing resembles regular apartment complexes; however, rent is paid by the New York City Department of Housing Preservation and Development in combination with funds from public assistance or the tenant’s income.74Id. Supportive housing offers longer term stability for many homeless individuals and may not require them to comply with strict shelter rules.75Id.

III. Discussion

While the homelessness crisis certainly has not been caused by the Ninth Circuit’s holding in Martin v. City of Boise, the lack of guidance regarding how to enforce the decision has resulted in cities engaging in drastically different and equally problematic practices. Cities are still searching for solutions on how to resolve the issue of homelessness without the use of anti-camping ordinances and criminalizing the status of homelessness. One proposed solution is for courts and legislatures to recognize a legal right to shelter. A legal right to shelter will help standardize cities’ and states’ responses to the homelessness population, ensure those responses are constitutional, and move towards addressing the underlying issues that lead to homelessness.

A. What Should a “Legal Right to Shelter” Include?

A legal right to shelter should apply to all citizens.76Illinois Bill of Rights for the Homeless Act, 775 ILCS 45/5, https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3517&ChapterID=64 (stating that is the longstanding policy of this State that no person should . . . be deprived of shelter or the basic rights incident to shelter”). Unlike the legal right to shelter recognized in New York,77The Callahan Consent Decree, supra note 69, at 2, (Providing that “the City defendants shall provide shelter and board to each homeless man who applies for it provided that (a) the man meets the standard to qualify for the home relief program established in New York State”). whether someone has the right to shelter should not be based on their ability to qualify for housing assistance. In order to qualify for housing assistance, a person’s income must be below a certain percentage of the poverty level, they must qualify as elderly, disabled, or be a family, and they must have citizenship or eligible immigration status.78U.S. Department of Housing and Urban Development, HUD’s Public Housing Program (2023), https://www.hud.gov/topics/rental_assistance/phprog. Additionally, they must pass a reference check.79Id. Further, a person may be denied housing assistance if their “habits and practices may be expected to have a detrimental effect on other tenants or on the project’s environment.”80Id. Limiting a legal right to shelter by applying it only to those who qualify for housing assistance may leave out persons who, despite not qualifying, are still in need of protection and shelter. Therefore, the right should apply to everyone.

A legal right to shelter should outline the specific standards that must be met for something to qualify as “shelter.” At a bare minimum, what qualifies as a “shelter” should be defined similarly to the court’s decision in Warren v. City of Chico.81Warren, U.S. Dist. LEXIS 128471 at *7-8. This would mean that to find that a state or city has provided shelter, they must provide an indoor space with a roof and walls, and there must be running water and electricity. Additionally, a legal right to shelter should include “shelter standards,” such as those provided for in New York’s consent decree.82The Callahan Consent Decree, supra note 69, at 2-3. The legal right to shelter would delineate requirements pertaining to beds, bedding, storage for personal belongings, and other necessary amenities.

A legal right to shelter should establish that no person can be subject to discrimination based on their housing status.83Illinois Bill of Rights for the Homeless Act, 775 ILCS 45/5, https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3517&ChapterID=64 (Stating that “it is the longstanding policy of this State that no person should . . . be subject to unfair discrimination based on his or her homeless status”). This would be in line with Martin’s recognition that a person’s status of homelessness cannot be criminalized.84920 F.3d at 617. It could also permit courts to recognize homelessness as a protected status and class, thus requiring that heightened scrutiny be applied to laws criminalizing the homeless.

B. What Would a “Legal Right to Shelter” Accomplish?

A legal right to shelter clearly establishes a government’s obligations to the homeless population and provides parameters regarding legislation pertaining to homelessness. By establishing this right, cities and states will no longer be able to debate whether they must respect a person’s right to shelter and whether they can implement laws criminalizing a lack of shelter. They will also have clear guidelines regarding what must be provided to satisfy a person’s legal right to shelter.

A legal right to shelter would also cure a flaw in the Martin decision. While Martin permitted homeless individuals to exist in public spaces, it did nothing to establish a right to housing nor did it require cities and states to remedy the homelessness crisis.85Id. Therefore, a legal right to shelter would require governments to come up with real solutions, ensuring that cities and states do not simply wash their hands of the problem.

A legal right to shelter shifts the lens regarding homelessness from a punitive one to one of human rights,86Tasneem Owadally & Quinn Grundy, From a Criminal to a Human-Rights Issue: Re-Imagining Policy Solutions to Homelessness, Nat’l Libr. of Med. (Aug. 2023), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10345991/. encouraging policymakers to implement legislation that helps citizens rather than criminalizes them. By criminalizing homelessness, cities and states only exacerbate the problem by creating more barriers for people seeking stable housing and employment.87Eric S. Tars, Criminalization of Homelessness, Nat’l. Homelessness L. Ctr. (2021), https://nlihc.org/sites/default/files/AG-2021/06-08_Criminalization-of-Homelessness.pdf (Describing how criminalizing homelessness “create[s] arrest records, fines, and fees that stand in the way of homeless people securing jobs or housing”). However, by shifting funding from enforcement of punitive measures towards creation of housing solutions, cities and states can better attain the goal of reducing homelessness.88Id. (Finding that “the providing of housing using a Housing First model, which focuses on providing people with quick, low-barrier access to housing followed by any needed services to maintain housing stability is cheaper and more effective than all other strategies for addressing homelessness”). Moreover, focusing on housing solutions and enforcing a legal right to shelter would be more effective and cost less than continuing to criminalize homelessness.89Id. (Stating that “criminalization is the most expensive and least effective way of addressing homelessness and wastes scarce public resources on policies that do not work”).

IV. Conclusion

The holding in Martin v. City of Boise, prohibiting the enforcement of anti-camping bans when the number of homeless outnumber available shelter beds, left many cities without guidance regarding how to address growing homeless populations. Cities’ responses have varied widely, from continuing the enforcement of anti-camping bans, to ceasing the enforcement of any laws against the homeless, to advocating for the implementation of state-sanctioned encampments. All these solutions have posed significant legal problems. Therefore, courts and legislatures should implement a legal right to shelter. Though a legal right to shelter does not address the underlying causes of homelessness, at a bare minimum, it provides guidance to cities and states regarding their legal obligation to ensure all citizens have shelter and what the standards of shelter must be. A legal right to shelter may also shift government funding towards more effective solutions regarding the homelessness crisis. Finally, establishing a legal right to shelter may protect a person’s housing status and could require a court to apply a heightened level of scrutiny to laws penalizing those without housing.

Cover Photo by dreamingyakker on flickr


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