With Prior New Hampshire Precedent, Recent U.S. Supreme Court Ruling Gives Flexibility
The homelessness crisis and its effects on our community, state, and country have become increasingly severe in recent years. Yet the legal principles that New Hampshire courts have applied in reviewing local government actions to address the issue have remained relatively consistent over the last decade. And now, a recent decision by the U.S. Supreme Court reinforces that local authorities and others must have flexibility in crafting their policies and decision-making in this area.
Just over a decade ago, in early 2013, a group of three homeless individuals who had been camping in various locations around Concord filed a lawsuit against the commissioners of the N.H. Department of Administrative Services and the Department of Transportation. The petitioners argued that local authorities violated their constitutional rights by posting “No Camping” notices and threatening to fine anyone who remained and to remove their property from the campsites. The New Hampshire Superior Court disagreed, concluding that the relevant state statute prohibiting camping on public property without approval was a regulatory law, as opposed to a punitive one, and was therefore constitutional. In so ruling, the court went out of its way to note that whether the law should change and policy decisions for how to address homelessness were the province of the other branches of government, not the courts.
A more recent encampment case played out in Manchester last year. In January 2023, a homeless individual, who was residing at an encampment of approximately 50, filed a lawsuit seeking to enjoin the City from evicting the encampment. Similar to the ruling in Concord a decade earlier, the Superior Court found in favor of the City. The court’s decision in the Manchester case was based on (a) the encampment presenting a serious public health and safety hazard and (b) the City providing support for the notion that there was sufficient available, safe overnight shelter that individuals could use. (For full disclosure, the author of this article was one of the attorneys of record who represented the City in that proceeding.)
Most recently, in late June of this year, the U.S. Supreme Court issued a major ruling on homelessness, with the outcome in line with those previous New Hampshire decisions. The U.S. Supreme Court was reviewing certain restrictions enacted by the city of Grants Pass, Oregon against encampments on public property. Those restrictions were one piece of the city’s multifaceted approach in responding to the homelessness crisis there. The Supreme Court sided with the city, holding that the enforcement of generally applicable laws regulating camping on public property does not constitute “cruel and unusual punishment” in violation of the Constitution. But beyond that ultimate conclusion, like the New Hampshire Superior Court did in 2013, the Supreme Court went out of its way to explain that homelessness and its causes are complex issues, and the policy decisions for how to respond need to be left to local communities. As the Supreme Court explained, “Yes, people will disagree over which policy responses are best; they may experiment with one set of approaches only to find later another set works better; they may find certain responses more appropriate for some communities than others. But in our democracy, that is their right.”
The Supreme Court’s decision in this regard thus presents an opportunity for Concord. Rather than restricting the scope of what may be done to address the challenges posed by and for homeless individuals, the Supreme Court has allowed the city, local businesses, charitable and other organizations, mental health professionals, law enforcement, and others the chance to work collaboratively together to innovate and pursue solutions that work for the community.