Matthew R. Silver is the founding partner of Civica Law Group APC and can be reached at msilver@civicalaw.com. Valerie D. Escalante Troesh is a partner at Civica Law Group, APC, and can be reached at vescalantetroesh@civicalaw.com.

Last year, the U.S. Supreme Court ruled that the Eighth Amendment bar on “cruel and unusual punishment” did not apply to local ordinances that regulate camping and personal storage on public property. Since then, public agencies have been considering their enforcement options. But while the City of Grants Pass v. Johnson ruling resolved Eighth Amendment lawsuits, it did not close the door to other challenges — including state legislation attempting to preempt local control.

In fact, the Supreme Court referenced other legal doctrines and constitutional provisions that could be considered in camping enforcement cases. The justices cited potential defenses, such as necessity, insanity, diminished capacity, and duress. Cities should consider these and more recent challenges to camping enforcement when crafting their ordinances.

Ongoing legal challenges  

In Grants Pass, the Supreme Court ruled that public agencies can enforce camping-related ordinances without first offering alternative shelter to homeless individuals, as previously required by Martin v. City of Boise and other cases. However, as the Supreme Court predicted, such enforcement could face other legal challenges. Only a few weeks after the Supreme Court’s ruling, this precise scenario played out in People v. Wood.

In that case, the California Court of Appeal considered the defense of “necessity,” in which a violation of law can be excused when the violator reasonably believes their action is necessary to preserve life or property. The case centered on a disabled, elderly homeless person’s claim that her illegal camp was “necessary” due to the lack of alternative available shelter and her camp’s location near a hospital that provided her care.

The appeals court did not rule on the “necessity” defense. Rather, it determined that a court must consider this defense when ruling on this type of ordinance violation. The practical effect is that offering shelter is an important factor — albeit not the only one — when responding to the “necessity” defense. Cities must be prepared to show that the violation was not a “necessity,” whether through alternative shelter or other options.

A few weeks later, Gov. Gavin Newsom issued an executive order instructing state agencies and departments to quickly remove homeless camps on state property and provide outreach services. The order also encouraged local agencies to adopt similar policies, stating that, “there is no longer any barrier to local governments … to address encampments with both urgency and humanity, or excuse for not doing so.”   

Cities followed the directive with varying degrees of haste. Yet, in February 2025, two federal court rulings forced cities to pump the brakes, issuing injunctions halting the removal of homeless camps for different reasons.

In Alfred v. City of Vallejo, a federal court in California issued a preliminary injunction blocking the city from removing a large, illegally constructed structure on public property that included windows, insulation, and a bathroom. The homeless plaintiff said she suffered from a variety of mental and physical health issues. She argued that without alternative shelter, the illegal structure was her only protection from the elements. Thus, demolishing her camp would place her in greater danger than if she remained in her camp, violating the “state-created danger doctrine” under the 14th Amendment.

The federal court agreed, ruling that removing the structure would likely “expose her to more dangerous conditions than she currently faces” considering her disabilities, the weather and season, and finding that the city had not done enough to connect her with housing resources. The court then issued an injunction stopping the city’s removal efforts. The city appealed the order to the Ninth Circuit Court of Appeals, where it is now pending.

Just a week later, in Berkeley Homeless Union v. City of Berkeley, another federal court temporarily halted the removal of an illegal homeless camp on public property. It ruled that the city’s failure to provide a “reasonable accommodation” before abating the camp posed a “serious question” about a violation of the Americans with Disabilities Act. While this is an interim order and the case is ongoing, it could have far-reaching consequences in California given the precedential value of federal court decisions.

Additional considerations

Cities must also contend with potential state action and other challenges. Earlier this year, Sen. Sasha Pérez introduced SB 634, a measure intended to restrict the application of the Grants Pass ruling in California. The bill would have blocked local agencies from issuing fines and jail time for any act immediately related to homelessness or anyone assisting a homeless person with any act related to basic survival.

After significant pushback, the author amended the bill to include only a prohibition on ordinances that bar a person or organization from providing support services to a homeless person. The bill is pending.

Additionally, the city of Fremont recently faced public scrutiny and amended its public camping ordinance to remove its provision making it a misdemeanor to “aid and abet” illegal camps. (The ban on public camping still stands.) Critics claimed the language was too vague for homeless outreach volunteers to avoid arrest. The city reiterated this was not its goal and removed the “aiding and abetting” language. Nonetheless, the city is now facing a legal challenge over the ordinance.

Late last month, Newsom determined that cities must have a plan to address encampments and issued a model encampment ordinance. The ordinance prohibits semi-permanent structures, camping for more than three nights in the same location, or sitting, sleeping, lying, or camping on a public street, bike path, or sidewalk in a manner that impedes passage.

The order directs city officials to make a reasonable effort to identify and offer shelter to people living in an encampment before taking enforcement action, as well as provide notice to vacate the encampment at least 48 hours prior to enforcement. Under the model ordinance, cities are required to collect personal belongings — defined as items with an apparent value of at least $50 or of personal value — and store them for 60 days. There is an exception for bulky items or items that present a health or safety hazard.

The model ordinance is only an example that cities can choose to adopt or modify as they see fit. A survey by Cal Cities found that most cities already have policies or ordinances in place to address encampments. However, the main issue for many cities is not the lack of an ordinance, but adequate funding to enforce it. Only one in five cities have access to state funding to address encampments.

Best practices for crafting public camping ordinances

There is no shortage of challenges for public agencies to consider and navigate when considering public camping ordinances and enforcement. Grants Pass validated the powers of public agencies to regulate and enforce such laws, but within an evolving landscape of constitutional challenges and with prerequisites. These cases highlight the importance of best practices, such as:

1. Tracking changes in the law and updating ordinances and policies as appropriate.
2. Offering shelter before abating homeless camps (even if refused), and documenting these efforts and the responses to them, particularly when the individual is disabled.
3. Before abating, evaluating the dangers that abating illegal camps pose to homeless occupants and ensuring any such dangers are mitigated and avoided to the extent reasonably possible.
4. Documenting the conditions of the camp and its effects on the community.
5. Considering whether CARE Court may be a viable and helpful option when dealing with homeless individuals suffering from certain schizophrenic illnesses.

These steps are not necessarily required by law but may be helpful. Many jurisdictions also have homeless outreach teams and resources, from mental health and transitional services to vouchers for transit and housing. Agencies should continue to utilize and document their use of these resources. These efforts go a long way in helping homeless residents find shelter and treatment, while also avoiding undue legal challenges.