9th Circuit court decision ‘reaffirms’ Anchorage can’t dismantle homeless camps without indoor shelter

A federal appeals court this week declined to reconsider a pivotal case out of Oregon that has major implications on local homelessness policy across the Western United States, including in Anchorage.

In a decision Wednesday, the U.S. 9th Circuit Court of Appeals said it would not rehear Johnson v. City of Grants Pass, a case in which a three-judge panel previously held that cities cannot criminally sanction people who sleep in outdoor spaces if indoor shelter is not available.

In Anchorage, where there are currently no indoor shelter beds available, the ruling means that the city will continue to be barred from dismantling homeless camps on public land without risking legal challenges, said Ruth Botstein, the legal director for the ACLU of Alaska.

“The main thing that the 9th Circuit did today is reaffirm that Martin v. Boise and Grants Pass are still good law, and they still apply in Alaska,” Botstein said. “The municipality continues to be under an obligation to follow those principles.”

[9th Circuit conservatives blast homelessness ruling, say issue is ‘paralyzing’ U.S. West]

The ACLU has twice sued the city this summer to halt the destruction of camps in Anchorage parks, including last week.

In a statement, the administration of Mayor Dave Bronson said its legal team was reviewing Wednesday’s decision “to evaluate what it may mean for Anchorage.”


The Grants Pass case and a landmark 2018 federal court ruling out of Boise, Idaho, have together shaped the way cities large and small have responded to a mounting homelessness crisis in the West. Anchorage is one among many cities that aren’t legally allowed to dismantle camps when adequate shelter space isn’t available.

The courts have been clear that cities that do have indoor shelter space to offer unhoused people can clear camps, said Botstein. But if there’s no alternative available, destroying camps is tantamount to “criminalizing them for being unhoused, for being indigent.”

[Read the ruling from the 9th U.S. Circuit Court of Appeals]

In sharp dissents to Wednesday’s decision, several conservative justices said the decision hamstrings municipalities around the region from doing anything to stop encampments from proliferating across cities, taking over parks and other public spaces. Cities like San Francisco and Los Angeles are “fast coming undone,” one dissent said.

Another called the ruling a “regrettable mistake that entrenches and expands upon previous deeply damaging jurisprudence.”

The issue of whether the city can legally move campers off public land is central to a debate this summer over camping in Anchorage.

The city closed the main mass shelter in May without a new walk-in shelter opening, sending people on to the streets with handout tents. Makeshift camps, including some with more than 100 people living in them, have since popped up in places like Cuddy Family Midtown Park and a downtown lot at Third Avenue and Ingra Street.

Last week, the ACLU of Alaska filed a lawsuit seeking to halt the city from clearing a long-established camp in Mountain View’s Davis Park.

Earlier in the summer, the ACLU had also filed a similar suit seeking to keep the city from clearing campers from Cuddy Park, where a music festival was to be held. Both lawsuits relied on the legal reasoning of the Grants Pass and Boise decisions, which hold that clearing camps without available indoor shelter is tantamount to cruel and unusual punishment, in violation of the Eighth Amendment of the U.S. Constitution.

In the case of the midtown Cuddy Park encampment, the ACLU’s lawsuit came when most of the residents had already moved on. Earlier this week, the city agreed to “indefinitely suspend” attempts to clear the Davis Park camp.

The federal court decisions offer some “workarounds” for cities, said Alexis Johnson, the city’s homeless coordinator. But she contends that the municipality knows it’s operating without indoor shelter space within the confines of the court rulings. She pointed to safety risks as the basis for the attempted camp clearings in Davis Park and Cuddy Park.

“If we had adequate shelter space in shelters — yeah, abatement would be a tool that would be more utilized,” she said. But right now “there’s nowhere else for people to go.”

• • •

Michelle Theriault Boots

Michelle Theriault Boots is a longtime reporter for the Anchorage Daily News. She focuses on in-depth stories about the intersection of public policy and Alaskans' lives. Before joining the ADN in 2012, she worked at daily newspapers up and down the West Coast and earned a master's degree from the University of Oregon.