In Wake of Supreme Court Homelessness Decision, NH Advocates Say Fight Not Over

File photograph. (Image licensed by Ingram Image.)

by Ethan DeWitt, New Hampshire Bulletin
July 9, 2024

The U.S. Supreme Court’s ruling last month to allow an Oregon city’s efforts to clear out homeless encampments is already rippling through New Hampshire.

On July 2, the Manchester Board of Mayor and Aldermen voted to strengthen a ban on camping on city property, subjecting people to fines. And the board removed an exception that had allowed camping during evening hours if there were not enough shelter beds available.

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

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

But even as cities like Manchester move toward enforcement actions, the ACLU and other New Hampshire civil rights groups say there are still avenues to stop those actions in state law. And they have urged cities and towns to move cautiously and humanely.

“We continue to warn New Hampshire officials and law enforcement that efforts to criminalize the unhoused may still violate the New Hampshire Constitution – and we’ll be watching,” Henry Klementowicz, deputy legal director of the American Civil Liberties Union of New Hampshire, said in a statement.

A dramatic shift

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

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

Evictions could happen only if beds or shelter were available to those who were being evicted, the Ninth Circuit held.

The decision did not have direct legal power over New Hampshire, which is under the jurisdiction of the First Circuit Court of Appeals. But it still influenced homelessness policy, noted Gilles Bissonnette, legal director of the ACLU, in an interview.

After Martin v. Boise, cities and towns were more cautious when it came to eviction attempts, Bissonnette said. And city councilors in Manchester passed the ordinance that allowed camping in public spaces when there is no shelter space available.

“Many cities and towns – though that’s not binding in New Hampshire – were basically applying that principle, and I think to their credit,” Bissonnette said. “Saying ‘we’re not going to cite people or evict people from public places unless there is some shelter space available.’”

Manchester’s ordinance did not prevent all evictions. In January, the city removed a homeless encampment on a sidewalk, in a move that was later upheld by the Hillsborough County Superior Court after the judge found there was adequate shelter elsewhere. But the ordinance did require more deliberation and care, advocates say.

The Grants Pass decision struck a fatal blow to the Martin v. Boise precedent. In it, conservative justices directly rejected plaintiffs’ arguments that evicting someone without offering an alternative housing option is unconstitutional.

After the board of aldermen vote, Ruais hailed the change, arguing in a statement that it would allow the city to “make our streets safe, clean, and passable.” But he vowed to address homelessness in other areas.

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

Continuing the fight

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

New Hampshire has its own version of the Eighth Amendment. Article 33 of Part I of the state constitution states that: “No Magistrate, or Court of Law, shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments.”

Unlike the U.S. Constitution, which prohibits “cruel and unusual punishments,” the state constitution uses the word “or,” Bissonnette said, which could make it easier to apply.

“We have always taken the position that our state constitution provides more protections than the Eighth Amendment,” Bissonnette said.

And he noted that at least one superior court judge appears to agree. When Manchester attempted to clear out homeless people on Pine and Manchester streets in January, the ACLU and New Hampshire Legal Assistance sued the city in an attempt to get an injunction to stop the action.

Judge John C. Kissinger ultimately rejected that attempt, but in his order he also stated: “If there were no safe alternatives available, the Court would agree that forced removal of the encampment would likely violate the State and federal constitutional rights of the people residing in the encampment.”

In that case, Kissinger held that there had been safe alternatives, pointing to the city’s contention that month that 31 beds were available at the Cashin Senior Activity Center and three beds at a facility run by Families in Transition, and that a warming shelter was available at the 1269 Café.

But legal rights groups say Kissinger’s order could open the door to applying Article 33 against homeless evictions in cases where there weren’t enough shelter beds. The Grants Pass decision does not apply to the state constitution.

It is unclear how the state Supreme Court might rule on the Article 33 argument. In the meantime, legal groups are increasing their political appeals.

In a letter sent shortly before the July 2 board of aldermen vote, the ACLU and NHLA urged Manchester to show restraint, and wrote that incarcerating homeless people “only fuels mass incarceration, keeping people in an endless cycle of poverty, and institutionalization.”

“Whatever the United States Supreme Court may say about the Eighth Amendment, elected officials have always had a choice,” the letter states. “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 use treatment – which will increase people’s chances of obtaining employment and housing.”

Ruais and others say they are moving forward intentionally and humanely.

“If an individual wants and needs help, it is available,” he said in a statement. “However, anyone choosing to ignore our ordinances or break the law, will be subject to the applicable legal consequences.”

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