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Supreme Court Case Related to Public Safety Heightens Debate Between Retail Groups and Advocates for Unhoused

With major retailers and big-box stores increasingly working to improve public safety in their communities, the Retail Litigation Center and Retail Industry Leaders Association filed an amicus brief Monday with the U.S. Supreme Court in a case that addresses how to deal with public health and safety issues related to the complex problem of homelessness.

In January, the U.S. Supreme Court decided to take up the case of City of Grants Pass, Oregon v. Gloria Johnson to determine whether, under the Constitution, local governments can make public encampments and living outside a crime. The Supreme Court will review last year’s decision by the Court of Appeals for the Ninth Circuit that followed precedent that states are not allowed to make sleeping outside, if adequate shelter is not available, a crime. The National Alliance to End Homelessness and other agencies that support the unsheltered have spoken out publicly that the court should not allow such a policy. The alliance has indicated it is planning to file amicus briefs.

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Homelessness has been on the rise since 2017, and that has led to an overall increase of 6 percent, according to the National Alliance to End Homelessness.

Conversely, the RLC and RILA are asking the court to overturn the decision.

In last year’s decision in the U.S. Court of Appeals for the Ninth Circuit, the court ruled against Grants Pass v. Johnson, deeming that its laws violated the Eighth Amendment’s prohibition on “cruel and unusual punishments,” since Grants Pass did not have enough shelter beds to house its unhoused population. Grants Pass officials, as well as those in some other communities, are looking to arrest the unsheltered under select circumstances. In Grants Pass, the charge was “camping,” which local police saw as sleeping outdoors with a blanket, pillow or a sheet of cardboard to lie on per public ordinances.

The RLC’s position on the upcoming Supreme Court case is that applicable ordinances that regulate public campsites “are one of many community tools for responding to established public health and safety problems.” The organization contends that retailers are “on the front lines of experiencing these problems and work with a diverse array of community partners to build durable solutions.” The group suggested that the Ninth Circuit’s decision “imposes unworkable requirements on communities and results in de facto non-enforcement and post-hoc judicial policy making.”

In its amicus brief filing Monday, the RLC highlighted RILA’s “Vibrant Communities Initiative,” a partnership between the association and the National District Attorneys Association that is designed to address the safety concerns of employees and consumers. The union also unites social service leaders, law enforcement representatives and other community organizations from around the U.S. to highlight the challenges, share information and address the problems that are impacting the vibrancy of cities.

The filing highlighted the Home Depot Foundation’s funding of 750 new housing units for veterans dealing with homelessness. Target’s $10 million Coronavirus Relief Fund to Help Partners Care for Communities was also cited as a way that retailers are trying to pitch in.

The RLC argued that the Ninth Circuit’s “constitutional regime imposes unworkable requirements on communities and results in de facto non-enforcement and post-hoc judicial policy making.” Its filing Monday states that campsites are situated near or on the doorsteps of stores, and the shoppers and employees could face safety risks and that municipalities are relied on to combat those risks.

Some retailers in Denver; Seattle; San Francisco; Portland, Ore., and New York City have pointed to homelessness as an issue that is impacting their businesses, and in some instances contributing to store closings. New York City Mayor Eric Adams has initiated sweeps of public encampments to provide the unsheltered with temporary housing. However, the city’s Department of Homeless Services reported last year that only 119, or 5 percent, of the more than 2,300 individuals impacted by an eight-month city-led “cleanup” in 2022 sought temporary housing, according to a report released by New York City Comptroller Brad Lander.

Meanwhile, in Minneapolis, city council members are considering “safe outdoor spaces” ordinances to create legal, regulated ways for the unsheltered to sleep outdoors. To try to offset the problem in California, Gov. Gavin Newsom has been advocating for Proposition 1, which would provide more funding to address the issue. It would allocate more funds from a millionaire’s tax that was passed and earmarked to finance mental health services. If passed by voters, it would require counties to spend 60 percent of those funds on housing and programs for unhoused people with serious mental illnesses or substance abuse problems. Separately, last fall Newsom revealed plans to set aside about $300 million for local jurisdictions to clean up encampments near highways.

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