Unhoused people have property rights, too
Andrew Lichtenstein // Corbis via Getty Images
Unhoused people have property rights, too
Police enforce a sweep of a homeless encampment, throwing tents and other possessions of the homeless in a trash truck in the East Village neighborhood of New York City.
In the years Faith Kearns spent living unsheltered on Phoenix’s streets, she had all kinds of belongings taken during sweeps of the public areas where she was staying. Kearns said police or city workers took, and often destroyed, her property—her birth certificate, the Visa card she used to access her disability income, medications, and the tent where she lived, reports The Marshall Project.
She’s a plaintiff in an ongoing federal lawsuit challenging how Phoenix treats unhoused people living and sleeping on public property, alleging these seizures violate their constitutionally-protected property rights. “This property is what they rely on for survival,” the suit reads. “It is all they have.”
Kearns’ litigation isn’t unique in using property rights arguments to seek better treatment of unhoused people by local governments. Even after the Supreme Court ruled in June that cities can enforce bans on camping in public places, courts are still being asked to evaluate how cities handle the property of unsheltered people when clearing them from where they are sleeping, resting for a bit, or even simply waiting for public transit.
The Supreme Court ruling in City of Grants Pass v. Johnson, overturned a lower court’s decision that said criminal penalties for sleeping outside when no other adequate shelter was available violated the Eighth Amendment’s protection against cruel and unusual punishment. Cities that had limited enforcement of camping bans and postponed enacting new ones are now released from their previous constraints. That has prompted a nationwide wave of local camping prohibitions and aggressive clearing of encampments.
Over the summer, cities from Fresno, California, to La Crosse, Wisconsin, imposed new camping bans, or strengthened existing prohibitions. Oakland and Long Beach, California, cleared encampments, while Spokane, Washington, began enforcing a ban on camping near schools, parks, and childcare centers. San Francisco’s mayor promised to begin aggressive sweeps of encampments.
However, the crackdown isn’t universal. In Springfield, Illinois, community resistance resulted in the city scrapping a proposed camping ban.
The Supreme Court’s decision left a difficult path ahead for lawsuits alleging that bans are cruel and unusual punishment. However, ongoing lawsuits also based on property right claims have resulted in orders for cities to take greater care of the belongings of unhoused people. Attorneys in these cases also say the Supreme Court decision did not impact claims about excessive fines and fees. In addition, suits filed in state courts cite additional protections under some state constitutions.
The Phoenix lawsuit, based in part on constitutional protections against government seizure of people’s property, asserts the city destroyed the belongings of unhoused people, like Kearns, without giving them adequate warning or any recourse. In December 2022, a judge temporarily prohibited the city from seizing property without prior notice, required the city to hold seized property for 30 days before destroying it and to provide a process for people to retrieve their things.
In response to this order, and another in 2023, the city updated its policies. City officials have touted a set of reforms in the police department, which cite 40 interviews (though only three with unhoused people themselves) which found limited cases of officials improperly handling belongings and no instances of such police misconduct after 2020.
Those findings, however, are in stark contrast with the results of a U.S. Department of Justice investigation, released in June, which found Phoenix police continued to destroy unhoused people’s property without notice or the chance for them to reclaim it—in violation of their constitutional rights.
Other lawsuits on behalf of unhoused people are also citing property rights. A lawsuit in Albuquerque, New Mexico, temporarily halted the destruction of property collected from homelessness enforcement. In San Francisco, an ongoing federal lawsuit led to a requirement that the city store belongings and notify their owners.
“It was very traumatic because it’s very cold outside and a lot of things they’re taking are warm clothes, warm jackets, blankets—things that you need just to survive,” Toro Castaño, one of the San Francisco plaintiffs, told KQED.
While judges are weighing unhoused policy in the courts, some voters will ponder similar questions in November. Responses to homelessness are a key issue in the mayoral elections in San Francisco, San Diego, and Phoenix. In the Washington state gubernatorial race, Democratic candidates tied homelessness to a lack of affordable housing, as their Republican opponents proposed moving unhoused people out of cities and onto camps on public lands, an approach put forward by Republican presidential candidate Donald Trump.
These electoral battles highlight a nationwide ideological clash, where the left-leaning argument for expanding access to permanent housing battles the conservative desire to treat mental health and substance abuse as the root causes of homelessness.
But some of the governments that have stepped up enforcement or considered expanding camping bans are led by Democrats. In July, California Gov. Gavin Newsom, a Democrat, issued an executive order directing state agencies to clear encampments and threatened to withhold funds from counties that failed to expand their own efforts. In 2022, Newsom found bipartisan support for a bill that allows courts to compel people to enter mental health treatment.
The Heritage Foundation’s Project 2025 proposes an end to housing-first approaches to homelessness. While Trump has distanced himself from Project 2025, the chapter that mentions homelessness was written by Dr. Benjamin Carson, who led the Department of Housing and Urban Development in the Trump Administration. Policies prioritizing permanent housing without mandating mental health treatment have reduced homelessness in places like Houston and Rockford, Illinois—and once enjoyed bipartisan support, including from Carson. Those policies now face conservative push-back and other challenges, like rising rents.
The conservative policy proposals closely follow those of the Cicero Institute, which has proposed model legislation to ban sleeping in public. A provision of Florida’s camping ban, heralded by the think tank, allows residents, business owners, or the state attorney general to sue cities and counties if they believe the law is not being enforced. In Arizona, voters will soon decide on a proposition that would similarly allow property owners to sue cities for a tax refund of expenses related to non-enforcement of laws targeting unhoused people.
Kearns, in Phoenix, will be moving into a new apartment next month, back in the same neighborhood where she once lived on the streets.
With housing, Kearns has been able to hold onto things like a new copy of her birth certificate, a rock collection, and letters from her family. But she still recalls the sting of losing her belongings. “We all lost treasures, thanks to the city,” she said.
This story was produced by The Marshall Project, a nonpartisan, nonprofit news organization that seeks to create and sustain a sense of national urgency about the U.S. criminal justice system, and reviewed and distributed by Stacker.
