After Supreme Court ruling on homelessness, NH attorneys continue to fight

Ethan DeWitt
| New Hampshire Newsletter

The U.S. Supreme Court’s ruling last month allowing an Oregon city to clear homeless camps is already having implications for New Hampshire.

On July 2, the Manchester Board of Mayor and Aldermen voted to strengthen a ban on camping on city property, which would have allowed people to face fines. And the board removed an exception that allowed camping in the evenings when there were not enough beds available.

The vote, which would make it easier for city officials to remove encampments from public sidewalks and parks, was a priority for Mayor Jay Ruais, a Republican elected in November. And it signals a potential shift in the way New Hampshire cities and towns approach homelessness in the wake of the Supreme Court ruling, critics say.

In City of Grants Pass, Oregon v. Johnson, the court ruled along ideological lines, 6-3, that the Eighth Amendment to the U.S. Constitution does not prevent a municipality from evicting homeless people from public spaces—and that there is no requirement that municipalities provide adequate shelter for them before carrying out such an eviction.

But even as cities like Manchester move toward enforcement action, the ACLU and other civil rights groups in New Hampshire say there are still opportunities to enshrine such action in state law. And they have urged cities and towns to proceed with caution and humanity.

“We continue to warn New Hampshire law enforcement officials and law enforcement that efforts to criminalize homeless people may still violate the New Hampshire Constitution — and we will continue to monitor this,” Henry Klementowicz, deputy director of the American Civil Liberties Union of New Hampshire, said in a statement.

A dramatic shift

The Supreme Court ruling is a major policy shift for cities like Manchester. Before last month, many municipalities and states followed the lead of a U.S. Court of Appeals decision, Martin v. Boise.

In that ruling, the Ninth Circuit Court of Appeals in San Francisco held that it would constitute “cruel and unusual punishment” within the meaning of the Eighth Amendment for a government agency to evict a homeless person from a public property if there were no reasonable alternatives for that person to find shelter.

Deportations could only occur if beds or shelter were available for the persons being deported, the Ninth Circuit ruled.

The decision had no direct legal effect on New Hampshire, which is under the jurisdiction of the First Circuit Court of Appeals. But it still affected homeless policy, Gilles Bissonnette, legal director for the ACLU, noted in an interview.

After Martin v. Boise, cities and towns were more cautious about eviction attempts, Bissonnette said. And Manchester city council members passed an ordinance allowing camping in public spaces if no shelter was available.

“A lot of cities and towns — while it’s not mandatory in New Hampshire — have basically applied that principle, and I think that’s to their credit,” Bissonnette said. “Saying, ‘We’re not going to ticket people or evict people from public places unless there’s a shelter available.'”

Manchester’s ordinance didn’t prevent all evictions. In January, the city removed a homeless encampment from a sidewalk, a move that was later upheld by the Hillsborough County Superior Court after a judge ruled there was sufficient shelter elsewhere. But the ordinance required more deliberation and care, advocates say.

The Grants Pass ruling was a fatal blow to the precedent set in Martin v. Boise, in which conservative justices immediately rejected plaintiffs’ arguments that evicting someone without offering them an alternative housing option is unconstitutional.

After the Board of Aldermen’s vote, Ruais applauded the change, arguing in a statement that it would allow the city to “make our streets safe, clean and walkable.” But he also pledged to address homelessness in other areas.

“We must address this challenge in a comprehensive manner and we have already undertaken 11 initiatives to address the root causes of homelessness and the need for more affordable housing in our city,” he said.

Continuing the fight

While some housing advocates privately worry about large-scale evictions, Bissonnette says he thinks such actions could still be challenged. Even though the U.S. Supreme Court has ruled on the U.S. Constitution, state constitutions could still prevent similar evictions, he says.

New Hampshire has its own version of the Eighth Amendment. Section 33 of Part I of the state Constitution states that, “No magistrate or court shall require excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments.”

Unlike the U.S. Constitution, which prohibits “cruel and unusual punishment,” the state constitution uses the word “or,” Bissonnette said, which could make its application easier.

“We have always taken the position that our state Constitution provides greater protection than the Eighth Amendment,” Bissonnette said.

And he noted that at least one higher court judge seems to agree. When Manchester tried to remove homeless people from Pine and Manchester streets in January, the ACLU and New Hampshire Legal Assistance filed a lawsuit against the city in an attempt to get an injunction to stop the action.

Judge John C. Kissinger ultimately rejected that effort, but in his order he also stated, “If no safe alternatives were available, the court would agree that forcible removal from the camp would likely violate the state and federal constitutional rights of the people living in the camp.”

Kissinger argued in that case that there were safe alternatives, citing the city’s claim that month that there were 31 beds available at the Cashin Senior Activity Center and three beds at a facility run by Families in Transition. There was also a shelter available at the 1269 Café.

But legal rights groups say Kissinger’s order could open the door to using Section 33 to prevent evictions of homeless people in cases where there were not enough shelter beds. The Grants Pass decision does not apply to the state Constitution.

It is unclear how the state Supreme Court will rule on the Article 33 argument. Meanwhile, legal groups are amplifying their political appeals.

In a letter sent shortly before the City Council’s July 2 vote, the ACLU and NHLA urged Manchester to exercise restraint, writing that locking up homeless people “only fuels mass incarceration, keeping people in an endless cycle of poverty and institutionalization.”

“Whatever the Supreme Court of the United States says about the Eighth Amendment, elected officials have always had a choice,” the letter reads. “They can decide to invest in solutions — like safe, long-term housing and low-barrier shelters, as well as wraparound services and voluntary mental health and substance abuse treatment — that will increase people’s chances of finding jobs and housing.”

Ruais and others say they are acting deliberately and humanely.

“If an individual wants and needs assistance, it is available,” he said in a statement. “However, anyone who chooses to ignore our regulations or violate the law will be subject to appropriate legal consequences.”

This story was originally published by New Hampshire Bulletin.

A dramatic shift

Continuing the fight

Related Posts