In 2009, several homeless people in Boise who had received citations for sitting or sleeping on public property enlisted the counsel of local legal nonprofits. Shortly thereafter, two of these nonprofits — Idaho Legal Aid and the National Homelessness Law Center — along with Latham & Watkins, a white-shoe multinational firm, helped their clients file a lawsuit against the city on the grounds its enforcement of anti-camping laws violated the Eighth Amendment’s ban on cruel and unusual punishment. The plaintiffs lost the case in Idaho District Court but sought review from the Ninth Circuit Court of Appeals, which ultimately ruled against the city in Martin v. Boise (2018).¹ “As long as there is no option of sleeping indoors,” Judge Martha Berzon wrote, “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 court took pains to clarify its Martin decision was “narrow” and only concerned cases in which “no sleeping space is practically available in any shelter.” But it provided little specification of what ‘practically available sleeping space’ meant in actuality. Was shelter space “practically available” if it did not allow for pets or significant others? Or if it only provided unpartitioned beds, which many people refused? Or if it was only available in a nearby city? Confused by vague jurisprudence — and perhaps fearful of more drawn-out litigation — many cities across the Ninth Circuit simply stopped routinely enforcing their anti-camping laws.

As an immediate consequence, the number of encampments and unsheltered homeless people skyrocketed in cities throughout the region. For instance, in Los Angeles County, the number of unsheltered homeless increased by almost 25% (from 36,084 to 44,850) between 2018 and 2022; in Portland, the number of unsheltered homeless increased by over 50% (from 2,037 to 3,057) between 2019 and 2022; and in Tucson, the number of unsheltered homeless increased by an astounding 300% (from 363 to 1501) between 2018 and 2023.²

Wherever cities did attempt to enforce anti-camping laws, they were usually sued by homeless legal advocates on the grounds that encampment sweeps violated Martin. Thus in San Bernardino, where in 2018 officials began issuing 72-hour eviction notices prior to sweeping encampments, the ACLU successfully sued the city on the grounds its actions violated Martin. Similarly, in Grants Pass, Oregon in 2020, the nonprofit Oregon Law Center helped a group of homeless people file a successful class action lawsuit against the city (Johnson v. Grants Pass) on the grounds encampment bans violated the Eighth Amendment (and, by extension, Martin). And most recently, in San Francisco in 2022, the Coalition on Homelessness — equipped with high-powered Latham & Watkins trial attorneys — sued the city for its modest attempts to control encampments and won a preliminary injunction (again based on Martin) prohibiting officials from removing tents.

Last month, after years of repeated requests for review, the Supreme Court finally announced it will hear arguments on Grants Pass v. Johnson in April and release its decision in June. If it overturns Johnson, it will also nullify Martin and all subsequent cases based on the Eighth Amendment defense of encampments. But even this outcome would not require cities to clear encampments, nor would it preclude homeless advocates from engineering another successful ban on clearing encampments based on, say, the Fourth Amendment, which prohibits unreasonable searches and seizures.³ Forcing cities to clear streets (and keep them clear beyond brief visits from foreign dictators) requires a legal counteroffensive — a lawsuit alleging the city’s toleration of encampments violates certain laws, whether these be disability laws, public nuisance laws or other local ordinances.

This is exactly the strategy successfully employed in Phoenix, where a group of citizens frustrated by a massive, 1,000-tent encampment on their doorsteps sued the city on public nuisance grounds, won, and forced officials to begin dismantling the site. Here’s how it worked.

THE PHOENIX MODEL

At its core, the strategy used by those seeking to clear encampments in Phoenix was identical to that used by homeless advocates in Boise, Grants Pass and San Francisco: find aggrieved potential plaintiffs; connect them with high-powered attorneys sympathetic to the cause; and construct an aggressive complaint alleging city policy regarding encampments directly violates existing rights of residents.

Aggrieved plaintiffs in Phoenix were easy to find. Prior to Martin, the west side of the city had a small, transient population of unsheltered homeless people who were mainly drawn to the neighborhood’s “Human Services Campus,” a 13-acre collection of nonprofit and government facilities providing various homeless support services. But when city officials stopped enforcing anti-camping laws after Martin, the area steadily filled up with tents. Soon, officials began to use the neighborhood as a de-facto containment zone. Community nonprofit partners provided “courtesy rides” to bring homeless people from across the city to “the Zone”; the Human Services Campus provided new tent-dwellers with medical care, meals, and PO boxes; and the police — per testimony at trial — generally declined to arrest homeless people accused of crimes in the area, preferring instead to “pursue [supportive] services for the individual instead of a conviction.”

Under these conditions, the Zone quickly became a lawless no-go area where open-air prostitution, drug dealing, and violence flourished, sidewalks and curbs overflowed with trash, and police responded “on multiple occasions to situations involving burned or burning human bodies…including that of a burned, deceased newborn baby found lying in the street and a deceased man found burned alive in a dumpster.” The plaintiffs who brought the case to trial each had specific material grievances against the Zone. One testified he had experienced multiple car break-ins at the hands of Zone residents, including one instance in which someone had thrown a cinderblock through his car window; another testified he was frequently solicited by those operating a ‘prostitution tent’ outside his home; others testified they did not go outside when it rained because of “puddles full of human urine and feces” that formed on their doorsteps, and so on.

Armed with these and other grievances, the plaintiffs enlisted the legal counsel of Tully Bailey, an Arizona-based firm specializing in government litigation and administrative law. The attorneys at Tully decided to bring the case on public nuisance grounds, alleging the encampments violated a series of conditions declared dangerous to public health under Arizona state law, including prohibitions on pollution or contamination of domestic waters, public deposits of “sewage, human excreta, wastewater, [or] garbage,” and unlawful obstructive to “the free passage or use of any public park or street.”

This was a shrewd decision; the prosecution could have argued the case on the grounds encampments violated the ADA (Americans with Disabilities Act of 1990) or one or two municipal codes prohibiting, say, open fires or prostitution. But public nuisance arguments are particularly powerful because, unlike ADA, they do not require proving the presence of discrimination; they simply require showing the city has omitted to solve issues that significantly interfere with public rights. And public nuisance suits often provide more flexibility in available remedies, which can include outright cessation of all harmful activity, rather than mere compliance with specific accessibility requirements.

The strategy proved fruitful. The court sided with the plaintiffs (read the full decision here), holding that the city “erroneously applied the Martin case” by interpreting its narrow holding as precluding the “enforcement of [...] other health, quality of life, and even criminal laws and ordinances in the Zone.” It ordered the city to remove “all tents and other makeshift structures [in the Zone] by November 4, 2023”; maintain “its public property in the Zone in a condition free of: (a) tents and other makeshift structures in the public rights of way; (b) biohazardous materials including human feces and urine, drug paraphernalia, and other trash; and (c) individuals committing offenses against the public order”; and reimburse plaintiffs for all legal fees they had incurred over the course of the lawsuit.

Thus marked the end of the Zone.⁴

EXTENDING THE MODEL ELSEWHERE

The sheer scale of the encampments in Phoenix made them particularly suitable targets for a public nuisance lawsuit. But there is little reason why residents in other cities across the Ninth Circuit can’t apply the same model to smaller encampments in their neighborhoods. In fact, San Francisco appeared to be headed in this direction in 2020, when UC Hastings (now known as UC Law San Francisco) and a collection of business leaders and residents in the Tenderloin sued the city on the grounds that proliferating encampments in the area constituted a public nuisance. But the plaintiffs in that case committed a strategic error. Rather than take the case to trial — where they could have forced the city to agree to keep the Tenderloin permanently clear of encampments — they decided to settle outside of court. Per the settlement, the city agreed to “remove up to 300 tents and encampments [in the Tenderloin]” and “make all reasonable efforts to achieve the shared goal of permanently reducing the number of tents to zero, along with encamping materials and related personal property.” But nearly four years on, the tents are back, and the plaintiffs are now reportedly attempting to pursue renewed legal action.

The takeaway? Don’t settle too early; find the plaintiffs, find the law firm, sue the city, and see the lawsuit through to the end. There’s no shortage of shocking public nuisances at encampments across the West Coast, so aggrieved plaintiffs should be easy to find. In Seattle, for instance, where there are an estimated 400 tents within city limits, a public nuisance lawsuit could come from the senior citizens in Highland Park who say they “keep their curtains closed” for fear of stray bullets from a crime-ridden encampment across the street. In San Francisco, where there are an estimated 600 tents throughout the city, residents of SoMa and the Tenderloin who frequently find human feces on their sidewalks could bring a public nuisance lawsuit against the city. In Los Angeles, where there are at least 4,200 tents across the county, parents of students who have been harassed by residents of an encampment that popped up next to a middle school in Koreatown could bring a public nuisance lawsuit. And so on.

Regardless of whether the Supreme Court decides to vacate Johnson (and, by extension, Martin and the entire Eighth Amendment defense of encampments), the enduring legacy of those cases will remain unchanged: homeless policy, once strictly under the purview of elected officials and municipal employees, is now primarily determined by activist litigation. And the only way to fight activist litigation is with more activist litigation — provided the latter is shrewder, sounder and, ultimately, more persuasive at trial.

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1. For a detailed discussion of the chronology of Martin, see this article in the Harvard Law Review.

1. The pandemic, which pushed thousands into homelessness, is admittedly a confounding factor here, but city officials across the Ninth Circuit are unified in their insistence that Martin remains the key driver of encampment growth. (See this amici curiae brief related to Johnson filed by officials in the Bay Area.)

1. This strategy is already at work; the Coalition on Homelessness’ ongoing lawsuit against San Francisco alleges encampment sweeps, in addition to violating Martin and the Eighth Amendment, also violate the Fourth Amendment.

1. Of course, the Zone’s proponents are not going down without a fight; the City of Phoenix recently filed an appeal against the injunction ordering it to clear encampments. Separately, the ACLU has filed a federal case against the City of Phoenix to get it to stop clearing encampments (Fund for Empowerment v. Phoenix).