Several bags of belongings, a bicycle and small furniture sat just outside one of the entrances to a clearing off Houghton Street in Providence, where until recently roughly 35 homeless people lived. The encampment’s unhoused residents had gathered their belongings so they could move them gradually, sometimes on foot, to new locations.
In early May, the Providence Police Department notified residents of two encampments that they had to clear out or risk criminal or civil charges, though more than 800 people are currently on the waitlist for indoor shelter beds in Rhode Island, according to the Coalition to End Homelessness.
“They, obviously, don’t care where we’re going,” said Angelo Dwyer, who formerly lived at the Houghton Street encampment. “I guess to them, we’re no better than a city rat.”
The city’s sweep of the two homeless encampments came in the midst of national and local uncertainty about the future of legal protections for homeless people. A case before the U.S. Supreme Court will determine whether local governments can penalize people for sleeping on public land when they have nowhere else to go. Meanwhile, some Rhode Island legislators are pushing for stronger state-level protections of the rights of unhoused people.
“The status of the rights of the homeless is really in limbo,” said Steven Brown, executive director of the ACLU of Rhode Island.
The case before the U.S. Supreme Court stems from Grants Pass, Oregon, a city of about 38,000 people.
Court to decide how cities can respond to homelessness
In 2018, the federal Ninth Circuit Court of Appeals found that punishing homeless people for sleeping in public when they had no other options violated their rights under the Eighth Amendment, and constituted “cruel and unusual punishment.”
“[That case] said if there isn’t access to adequate temporary shelter, they can’t penalize people,” said Laura Riley, director of the clinical law program at University of California, Berkeley.
Since then, the western states in the Ninth Circuit jurisdiction, including Oregon, have not been able to enforce ordinances barring people from sleeping outside if no other options are available.
But in Grants Pass, people who sleep in public continued to face citations and fines under the local municipal code, even though the city does not have enough shelter beds for all of its homeless residents.
Shortly after the 2018 appellate court decision, a small group of local unhoused residents filed a class action suit arguing that the ordinances, which technically apply to all residents, “unconstitutionally punished them” and “criminalized their existence as homeless individuals”.
In 2022, that case made its way to the Ninth Circuit court as well, where a split panel of appellate court judges upheld a lower court injunction preventing the city from enforcing certain ordinances; Grants Pass then petitioned the Supreme Court to take the case. The justices heard oral arguments in late April.
In a decision expected next month, the justices could uphold the Ninth Circuit decision, extending its protections nationwide, or overturn it, reversing its restrictions on penalizing people who have nowhere else to go.
Three Providence city councilors, Rachel Miller, Sue Anderbois, and Miguel Sanchez, signed on to an amicus brief encouraging the justices to uphold the 2018 decision. Sanchez said he wanted to see the city represented alongside national organizations advocating to address homelessness without punishing people.
“Arresting ourselves out of an issue is never gonna work,” Sanchez said. He recently started doing street outreach work for Better Lives Rhode Island, an organization that provides services to the homeless.
Many local officials in western states have argued that the appellate court decision preventing them from punishing homeless people who have no other options has curtailed their ability to address the crisis of homelessness.
In one of dozens of briefs encouraging the justices to overturn the Ninth Circuit decision, San Francisco elected officials wrote that the case has prevented the city from enforcing local laws, with the end result that the “homelessness crisis has only seemed to worsen.”
Still, San Francisco and other places covered by the Ninth Circuit decision have continued to clear encampments.
“Nothing about the case right now prevents cities from clearing encampments,” said Jesse Rabinowitz, campaign director for the National Homeless Law Center. “It’s only about if they’re also able to punish people through fines and jail cells.”
The local context
How the decision will reverberate in Rhode Island is an open question. The state is not currently covered by the Ninth Circuit decision, so municipalities can issue fines or arrest people for sleeping in public if it violates local ordinances.
Many agree the Supreme Court seems poised to overturn the appellate court decision, which could give the “green light” to pass more restrictive and punitive laws governing people sleeping in public, and more readily enforce them, according to Brown of the Rhode Island ACLU.
“There will no longer be any federal constitutional claims that criminalizing homelessness is unlawful,” Brown said. “It would give every state or municipal entity the ability to criminalize this status.”
Local advocates worry that will mean more police actions to clear encampments across Rhode Island.
“It just gives license to towns and cities to use police raids as their supposed solution to the problem,” said Eric Hirsch, professor of sociology at Providence College and member of the Rhode Island Homeless Advocacy Project. “That’s what we’re worried about.”
If the Supreme Court were to uphold the Ninth Circuit decision, cities and towns in Rhode Island would have to evaluate what authority they have to civilly or criminally penalize people who are sleeping in public and have no other options.
“They would need to do an inventory of their local laws,” Riley, of U.C. Berkeley, said, “[And] see if there’s anything that punishes people for sleeping in public when there’s no alternative.”
Cities and towns in Rhode Island treat sleeping in public differently, according to a review of municipal codes conducted by The Public’s Radio. Some, like Charlestown and Bristol, appear to ban the practice outright, while others have restrictions on the times of day someone can sleep in public, or where they can sleep. How, and how often, cities and towns have enforced these laws by issuing fines or arresting people for violating them is not immediately clear.
The eviction notices that the Providence Police Department delivered to encampment residents on May 10 stated that anyone who failed to leave by the deadline could face “criminal prosecution” under the state trespassing law. Brown of the Rhode Island ACLU said if the court upholds the Ninth Circuit decision, cities would need to be “much more careful” before issuing these kinds of notices when people are sleeping on public property.
One of the encampments was on state-owned land, according to Josh Estrella, press secretary for Providence Mayor Brett Smiley. The other was in a larger area divided up into parcels owned by different groups. Tax records show the Providence Redevelopment Agency owns a large swath, but not all, of the land. Estrella said the PRA is in the process of selling its parcels to a private developer. (The Supreme Court case will only have implications for people sleeping outside on publicly-owned property, not private property.)
“We will determine the impact of the justices’ decision when that opinion is issued,” Estrella wrote in an email.
Estrella said no one faced criminal charges in association with the recent clear out of homeless encampments. In a written response to questions, he wrote, “arrests and penalties during this process are rare and not the goal of the city’s process.”
Reworking the Rhode Island Homeless Bill of Rights
As the U.S. Supreme Court considers a case that will have national implications, the Rhode Island legislature is considering a bill that could strengthen certain protections for homeless people. While the Supreme Court case will not have a direct influence on the pending legislation, it underscores the role state laws can play in protecting the rights of unhoused people, Brown said.
“It will be up to the states to set the rights that this population will have,” he said.
In 2012, Rhode Island became the first in the nation to pass a “Homeless Bill of Rights.” The law codifies that people who are homeless have the same rights, privileges, and access to public services as everyone else. But advocates say the bill has been poorly enforced.
Brown said he was aware of only one court case in the entire 12-year history of the legislation that alleged violations of the bill: the case his organization filed as the state cleared out the statehouse encampment in December 2022.
The proposed revisions, which vary slightly between the House and Senate versions of the bill, would allow organizations to sue on behalf of unhoused people, which could make it easier to bring cases. The revisions would also require agencies to issue 60-day notices to vacate. When Providence cleared the two encampments last week, the city initially provided residents 72 hours notice.
Additionally, the new bill would enshrine the right to trash receptacles and portable toilets. It would also clarify that people living in tents have the same rights to privacy as people living in houses and protect tents from unreasonable searches. Finally, the bill would require police departments to adopt policies in line with the new provisions.
“We have to be able to see that they know what they have to do and understand what they can’t do,” Hirsch, of the Rhode Island Homeless Advocacy Project, said.
Both the Rhode Island House and Senate held hearings during this legislative session on proposed updates to the legislation and referred it for further study. Neither body has scheduled the bill for a vote.
A decision in the U.S. Supreme Court case is expected before June 30.