The Wild, Wild West: The Right of the Unhoused to Privacy in their Encampments
The issue of what, if any, protection the Fourth Amendment and its state counter- parts give to the home that is not a house recently surfaced in three decisions of panels of the Washington, Oregon, and California courts of appeals, which reached conflicting decisions on nearly identical facts. Descriptively, this Article argues that property-law concepts continue to play an outsized role in judicial determinations of the reasonableness of individuals’ expectations of privacy in particular areas. As a result, courts have a hierarchy of Fourth Amendment protection, with the “home” at its center. Conversely, courts tend to find that trespassers categorically lack constitutional privacy protection on the lands on which they trespass, often relying on assumption-of-risk logic. The court opinions discussing the sanctity of the “home” and the peril of the trespasser contemplate only brick-and-mortar structures occupied by individuals with either a deed or a lease to the premises.
Normatively, this Article argues that the binary opposition of resident versus trespasser is an outdated one that fails to recognize the modern problem of the long-term unhoused and the ambiguous legal status of their permanent encampments. Local anti-camping and trespassing ordinances have, in effect, become the new vagrancy laws, criminalizing a status rather than a voluntary behavior in any meaningful sense. Courts should recognize the dwellings of the unhoused as homes and grant them corresponding Fourth Amendment protection. Both societal norms and understandings about camping and makeshift dwellings and international human-rights norms support the recognition of a constitutional right to privacy of the unhoused in their homes. Courts’ failure to grant such recognition stems from longstanding and nefarious prejudices against the unhoused.