Brief Case Law Summaries Related to Homelessness
In addition to considering human-centered approaches to addressing homelessness, the City also must consider risks and legal constraints on any response to homelessness, including state and federal court decisions interpreting the state and federal constitutions. These court decisions are colloquially known as “case law.” Below are summaries of some key court decisions related to homelessness. Other state court cases involving claims related to homelessness that have yet to be decided are described in this Background Paper(PDF, 189KB) (current as of October 2024). The Background Paper also provides additional analysis on some of the cases summarized below.
The Washington State Court of Appeals held in a criminal case that an unhoused person’s tent or shelter and its contents are entitled to constitutional privacy protection under the Washington State Constitution, Article I, section 7, and thereby protected from unreasonable searches.
This decision by the United States Court of Appeals for the Ninth Circuit is an example of a federal case holding that clearing homeless encampments must meet certain due process requirements (there are state court decisions that suggest similar holdings). In Levan, the Ninth Circuit held a municipality may not summarily remove the property of a homeless person without notice and an opportunity to be heard. Unattended property does not necessarily mean it is abandoned, and so a municipality may not summarily destroy seized property. Instead, it must be maintained in a secure location for a certain period of time.
Note: In Washington, state law provides similar statutory protection because chapter 63.32 RCW requires that certain requirements be followed when any personal property comes into the possession of city police, including a requirement that it be held for 60 days.
Until June 2024, cities in Washington State were restricted in enforcement efforts against individuals camping on public property. This was because of two Ninth Circuit cases, Martin v. Boise, 920 F.3d 584 (9th Cir. 2019), and Grants Pass v. Johnson, 72 F.4th 868, 890 (9th Cir. 2023), which held that municipalities were prohibited by the cruel and unusual punishments clause of the Eighth Amendment to the U.S. Constitution from imposing criminal sanctions or civil infractions that could later evolve into criminal sanctions against individuals experiencing homelessness for sitting, lying, or sleeping on public property without offering available and adequate alternative shelter. The Eighth Amendment’s texts states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
However, the United States Supreme Court accepted review of the Ninth Circuit’s Grants Pass decision and, in June 2024, the Supreme Court issued its decision rejecting the Ninth Circuit’s approach. The Supreme Court held that the Eighth Amendment concerns the “method or kind of punishment,” not whether certain acts should be punished. Ultimately, the Supreme Court’s decision reversed the judicial limitations previously imposed by the Ninth Circuit that required any city attempting to enforce a ban on public camping to first ensure the availability of sufficient shelter beds.
The Supreme Court’s Grants Pass decision does not mandate any action by local governments. Instead, it enables cities to exercise discretion to enforce anti-camping or anti-sleeping ordinances. Issuance of citations, trespass letters, or arrests for violations of local laws may now be used as a tool to address camping when there is a threat to public health or safety or when other solutions are not successful. In Kirkland, these enforcement mechanisms will be used as an additional tool when appropriate while continuing to apply a human-centered approach to addressing homelessness.
Kitcheon v. City of Seattle, No. 85583-2-I (Wash. Ct. App, Division I, December 9, 2024).
In this recent Washington State Court of Appeals decision, two individuals challenged the City of Seattle’s administrative rules governing homeless encampment removals, alleging that the rules violated two provisions of the Washington State Constitution: the right against “cruel punishment” (article I, section 14) and the right to privacy (article I, section 7). Article 1, section 14 of the Washington State Constitution states: “Excessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.” The court held that, while the Washington constitution’s cruel punishment provision it more protective than the federal Eighth Amendment, the protection against “cruel punishment” in Article I, section 14 still applies only to criminal punishment. The mere threat of criminal penalties (such as move-along orders) does not meet the definition of punishment under Article I, Section 14.
However, the court also held that Seattle’s rules allowing the removal of tents, personal property, and other items associated with encampments violated the state constitutional right to privacy in Article I, section 7 because the rules as written were overly broad. The court concluded that, while an individual’s right to privacy can reasonably be intruded upon for public safety and health reasons, Seattle’s specific rules did not set minimum standards or requirements that connect the removals to actual health or safety concerns. The rules allow the City to remove obstructions simply because they exist in a park or on a public sidewalk, without considering whether they pose an immediate hazard or interfere with public use. For this reason, the court found Seattle’s rules facially unconstitutional.
Potter v. City of Lacey, 3 Wn.3d 328 (2024)
In this case, the Ninth Circuit certified a question to the Washington Supreme Court, asking it to determine whether Washington law recognized a state constitutional right to intra-state travel that would guarantee the plaintiff the right to live in a recreational vehicle for free on City property. The Washington Supreme Court concluded that there was not a state constitutional “right to travel” that would allow individuals to park and reside in a recreational travel trailer on public property. Similarly, there is no federal constitutional right to intrastate travel that protects the right to remain in a particular place, in a particular manner, in a vehicle. The Washington Supreme Court also confirmed cities’ constitutional authority under Article XI, section 11 of the Washington Constitution to adopt parking laws of general applicability.
The Washington Supreme Court held that a vehicle can be a residence for purposes of the state’s homestead rights. Homestead rights protect a person’s residence and essential possessions from judgments and liens by debt-holders and other creditors (up to a certain dollar amount). See chapter 6.13 RCW. However, homestead rights do not prevent issuance of a parking citation or impoundment of a vehicle. Instead, homestead rights protect the homestead from creditors, so the rights protect a vehicle owner if the City attempts to collect a debt from the owner for impoundment and towing. As a result, the City needs to ensure that homestead vehicles are not sold at auction.
The Court also significantly expanded the circumstances under which an individual may bring an “excessive fines” challenge to a civil infraction under “excessive fines” provisions of the Eighth Amendment of the U.S. Constitution and Article I, section 14 of the Washington State Constitution, extending it to civil infractions and vehicle impoundments.
This webpage was last updated February 4, 2025.