The Invisible Among Us: Defending the Right to Self-Shelter Using the State-Created Danger Doctrine

Introduction

To be homeless in America is a crime. The Supreme Court’s 2024 decision in City of Grants Pass v. Johnson marked a turning point in the legal treatment of homelessness, holding that local ordinances penalizing people for sleeping outdoors do not violate the Eighth Amendment of the U.S. Constitution.^[1] This decision grants governments broad discretion to criminalize the conduct of unhoused people, effectively sanctioning policies that punish survival rather than addressing the root causes of homelessness. For decades, advocates have sought to challenge these ordinances by calling for a positive “right to shelter.”^[2] However, only two states and the District of Columbia have embraced this positive conception of the right to shelter.^[3] For example, Massachusetts enshrined a right to shelter in its state constitution, and New York City recognizes it under its Bill of Rights.^[4] However, these rights remain politically vulnerable and can be rescinded depending on shifting legislative priorities.

While federal courts have historically been reluctant to recognize new positive rights,^[5] the Ninth Circuit, in Martin v. City of Boise, held that the Eighth Amendment prohibits criminalizing urban camping when no adequate alternative shelter exists.^[6] While this ruling was ostensibly hailed as a victory for advocates of the unhoused, cities and states contend that the Ninth Circuit’s intervention prevented local governments from addressing the humanitarian crisis while balancing community concerns over public safety and use of public spaces.^[7] The Supreme Court’s reversal of Martin in Grants Pass eliminated that protection, leaving the current legal landscape barren of meaningful constitutional recourse for those cast aside by circumstances beyond their control. The Grants Pass decision sends a stark message: the Court is willing to uphold laws that prioritize the aesthetics of our nation’s parks and sidewalks, and speculative public safety concerns, over constitutional liberties. While some concerns over public health and safety are legitimate, by framing homelessness as a matter of choice and shelter adequacy as a policy issue, the Court’s decision reflects a detached reality, one in which the consequences of criminalizing homelessness are ignored in favor of punitive measures that only perpetuate the crisis. If the Eighth Amendment is closed off as a vehicle for protection, a new doctrinal strategy is needed.

To fill the constitutional gap left by Grants Pass, this Note proposes recognizing a constitutional right to self-shelter as a liberty interest informed by dignity and enforced through the State-Created Danger Doctrine (“SCDD”) under the Due Process Clause. The SCDD is a narrow exception to the rule that the government bears no duty to protect individuals from harm inflicted by private parties.^[8] Nevertheless, the SCDD “allows for the possibility of holding the government responsible for creating or increasing a danger to an individual.”^[9] This language ultimately creates a pathway for unhoused people to hold the government accountable for enforcing anti-camping ordinances that take away their ability to choose how to shelter and displace them in environments that are often dangerous.

Part I of this Note looks at the state of homelessness in America. Part II examines the Grants Pass decision and reflects on its shortcomings in narrowing Eighth Amendment protections. Part III explores how dignity-based conceptions of constitutional liberty can inform the recognition of a right to self-shelter. Part IV explores the doctrinal foundations of the SCDD and addresses the circuit split by advancing a framework for its resolution. Finally, this Note demonstrates how this framework can be applied by analyzing President Trump’s Executive Order No. 14,321: Ending Crime and Disorder on America’s Streets, signed on July 24, 2025, and considers how courts should evaluate this order under a refined state-created danger analysis.

Part I: Homelessness in America & Criminalization through Anti-Camping Ordinances

According to the Housing and Urban Development’s (“HUD”) 2024 Annual Homeless Assessment Report to Congress (“AHAR”), the number of people experiencing homelessness on a single night in January 2024 was the highest ever recorded, with a total of 771,480 people in the United States experiencing homelessness, and of that amount, 274,224 were unsheltered.^[10] At the end of 2024, HUD reported a 6.9% nationwide increase in the number of people experiencing homelessness who were unsheltered in the 2023–2024 calendar year.^[11] While it is true that the total number of shelter beds nationwide has increased, many states still lack sufficient beds to meet the needs of those requiring shelter, forcing them to seek alternative places to live.^[12] Although people experiencing unsheltered homelessness often sleep in public spaces without access to water, bathrooms, blankets, or emergency medical care, many shelters impose strict curfews and exclusionary rules based on gender, age, income, sexuality, religious practice, or prohibitions on pets and drug use, rendering them inaccessible to unhoused people who may need them most.^[13]

Homelessness is a complex and dynamic issue driven by intersecting structural and cultural factors.^[14] The worsening national affordable housing crisis, rising inflation, stagnating wages among middle and lower-income households, and the persisting effects of systemic racism have stretched homelessness services systems to their limits.^[15] These pressures have been compounded by additional public health crises, natural disasters that have displaced people from their homes, the rising number of people immigrating to the United States, and the expiration of pandemic-era prevention programs, such as emergency rental assistance and the expanded child tax credit.^[16] To combat the growing homelessness crisis, state and local governments have experimented with a range of policies, from rental assistance programs and temporary shelters to outreach efforts for mental health and substance use treatment, to eradicate homelessness in their own jurisdiction.^[17]

At the same time, however, many local governments and municipalities have turned to anti-camping ordinances as the focus of their response.^[18] These ordinances criminalize sleeping or erecting encampments or other structures on publicly owned property, with penalties that range from fines to incarceration.^[19] At the heart of the dispute between advocates for the unhoused and state and local governments are the community interests in public health, safety, and welfare.^[20] Proponents of ordinances, as echoed in the Grants Pass opinion, argue that encampments spread disease, lack sanitation and access to running water, and pose safety risks to residents and surrounding communities.^[21] Opponents counter that shelters are often inaccessible for several reasons and that punishing encampment residents or those who sleep outside strips them of any meaningful choice.^[22] The impact of this punitive measure can lead to collateral consequences, such as loss of care or disqualification from HUD-funded public housing and voucher programs, due to “unpaid fines or [outstanding] warrants.”^[23] These competing arguments frame the political debate. Yet underlying this debate is the core problem this Note seeks to address, which is that anti-camping ordinances deny unhoused people the most basic exercise of liberty—the ability to self-shelter, the only option available to them when no adequate alternative exists. By criminalizing conduct essential to their survival, the government strips unhoused people of their dignity, forcing them into shelters or subjecting them to punitive measures, denying them the freedom to choose how to shelter. The next section will turn to Grants Pass to analyze how the Court’s decision narrowed constitutional protections for unhoused people and why the SCDD is needed.

Part II: A Look at the Grants Pass Decision & the Erosion of Constitutional Protections

A. The Supreme Court’s Decision in Grants Pass

In June 2024, the Supreme Court decided City of Grants Pass v. Johnson, a case brought by two homeless individuals (“Plaintiffs”) in Grants Pass, Oregon, challenging the constitutionality of the city’s public-camping laws.^[24] The ordinances at issue prohibited: (1) sleeping on public sidewalks, streets, or alleyways; (2) camping on public property; and (3) camping and overnight parking in the city’s parks.^[25] Violations of these ordinances triggered escalating penalties.^[26] An initial violation triggers a possible fine, followed by exclusion orders barring repeat offenders from city parks for 30 days, and violations of those orders can constitute criminal trespass punishable by a maximum of 30 days in prison and a $1,250 fine.^[27] Plaintiffs argued that these ordinances violated the Eighth Amendment’s Cruel and Unusual Punishment Clause and sought class-wide relief for all involuntary homeless people living in Grants Pass.^[28]

In a 6–3 decision authored by Justice Gorsuch, the Supreme Court held that the Grants Pass ordinances do not violate the Eighth Amendment’s Cruel and Unusual Punishment Clause.^[29] Justice Gorsuch began the opinion by framing the case against the backdrop of the homelessness crisis in the western United States, and by stressing concerns from state and local governments that Martin injunctions “paralyze their ability to act,” given the risk of lawsuits.^[30] Doctrinally, the Court confined its analysis to its prior precedent in Robinson v. California and Powell v. Texas, rejecting the Ninth Circuit’s expansion of Robinson in the Martin case.^[31] The majority in Grants Pass rejected Martin’s conclusion that ordinances prohibiting public sleeping in the absence of adequate shelter effectively criminalized the status of homelessness.^[32] For the majority, Robinson already sat uneasily with the Amendment’s text, original meaning, and precedent, and could not be stretched further.^[33] Instead, the Court turned to Powell and adopted Justice Marshall’s plurality view that Robinson “does nothing to curtail a State’s authority to secure a conviction when ‘the accused has committed some act . . . society has an interest in preventing,’” even if that act is involuntary or closely tied to a condition or status.^[34] Just as public intoxication could be punished in Powell despite its link to alcoholism, the Court concluded, so too could public camping be punished despite its connection to homelessness.^[35]

Justice Gorsuch also relied on Justice Marshall’s caution in Powell that expanding the Eighth Amendment to excuse conduct based on involuntariness would lack a limiting principle and improperly entangle courts in defining standards of criminal responsibility.^[36] That warning, in the majority’s view, materialized in Martin, where the Ninth Circuit created an unworkable test for involuntariness.^[37] The majority stressed that involuntariness is too “dynamic” to be judicially administered because it would require courts to determine in real time whether an individual was compelled to sleep outside.^[38] Likewise, the Court rejected the Ninth Circuit’s focus on shelter adequacy as a constitutional matter, framing it instead as a policy judgment beyond judicial competence.^[39] The Court reasoned that determining whether shelters are safe, accessible, or a sufficient alternative would improperly grant judges authority to oversee homelessness policy, a legislative function.^[40]

The dissenters in Grants Pass argued that Robinson controlled, and the ordinances at issue effectively criminalize the status of being homeless, not merely certain conduct.^[41] Additionally, the dissent emphasized that sleep is a biological necessity, and for homeless people with no access to adequate shelter, sleeping outside is unavoidable.^[42] Punishing homeless persons for participating in a biological necessity, the dissent reasoned, is indistinguishable from punishing them for their status—precisely what Robinson prohibits.^[43] The dissent also contended that the majority mischaracterized Powell, noting that the case did not turn, as the majority suggested, on whether the conduct was “involuntary”—the correct characterization of Powell was whether the conduct was inseparable from the underlying status.^[44] The dissent concluded that the Court has an obligation to safeguard constitutional rights for all, including the most vulnerable, a duty it failed to fulfill by permitting the punishment of people living without shelter.^[45]

The Court’s majority decision accomplished two things that concern the rights of unhoused people. First, the Court narrowed Eighth Amendment protections by foreclosing challenges to anti-camping ordinances under the Cruel and Unusual Punishments Clause; second, the Court engaged in judicial retreat, reframing the issue as a separation of powers problem and insisting that regulating homelessness is a matter for the legislature to address, not for the courts to resolve.^[46] Both decisions by the Court effectively insulate punitive measures from constitutional review and leave unhoused people without a clearly enforceable constitutional remedy.

B. Critique of the Grants Pass Decision

The result of Grants Pass created a constitutional vacuum for people experiencing homelessness. By narrowing Eighth Amendment protections without recognizing any corresponding right to self-shelter, the Supreme Court’s decision leaves unhoused people vulnerable to the enforcement of anti-camping ordinances.^[47] The Court’s reliance on the fractured Powell plurality rested its reasoning on a precedent that never squarely addressed the issue presented in Grants Pass. Although Powell never resolved whether involuntary conduct could be punished under the Eighth Amendment, the majority in Grants Pass nonetheless conflated survival conduct with choice, reasoning that unhoused people could be punished if they declined to use whatever shelter options the city offered, regardless of how limited or unsuitable those options might be.^[48] While it is true that many unhoused people reject shelter offers due to safety concerns, risk of family separation, curfews, sobriety requirements, or religious conditions, this reasoning effectively erases the involuntariness of homelessness, allowing courts to overlook the dangers of inadequate shelter, and renders punitive ordinances indistinguishable from punishing the status of homelessness.^[49]

The majority further justified the Grants Pass ordinances as neutral laws of general applicability, regulating conduct such as camping on public property for everyone.^[50] However, this neutrality obscures their disproportionate effect because only unhoused people lacking private space are realistically burdened, turning the ordinances into direct bans on survival. The tension between the Court’s doctrinal minimalism and institutional restraint highlights the need for a new doctrinal framework. By refusing to extend the Eighth Amendment, the Court left unhoused people without any constitutional basis to challenge laws that create or increase their exposure to danger. This case should have recognized a dignitary right to self-shelter, but instead, it dismissed involuntariness and shelter adequacy as policy questions beyond judicial reach.

Moreover, the Court missteps again, but this time in its failure to meaningfully engage with pre-enforcement constitutional challenges, particularly those rooted in the Due Process Clause, that it gestures to but does not fully develop.^[51] The majority’s focus on post-enforcement remedies overlooks the fact that for unhoused people, the constitutional injury arises from the enforcement itself—when their belongings are destroyed, when they are cited, or when they are incarcerated—not afterward.^[52] Remedies available only after the fact are also often illusory, given the barriers to accessing representation and the difficulty of reversing harms already suffered.^[53] This makes pre-enforcement protections, rooted in substantive due process, all the more critical. Yet, the majority offers only a cursory treatment of how a due process challenge to anti-camping ordinances might succeed. Both the majority and dissent acknowledge that Robinson’s admonition—that “[e]ven one day in prison would be . . . cruel and unusual”—may more appropriately fall under the Fifth or Fourteenth Amendment’s Due Process guarantees.^[54] Still, the Court stops short of affirming that involuntarily unhoused people have a constitutional right to avoid criminal penalties for sleeping or camping in public when no shelter is available. The failure to engage with the doctrinal and practical implications of due process protections leaves open important questions and contributes to uncertainty for lower court litigants. For a Court that purports to safeguard the dignity and constitutional rights of all people, its unwillingness to entertain the viability of pre-enforcement due process claims—particularly in light of the lack of historical grounding for the Robinson ordinance and similar laws like those in Grants Pass—is a striking omission. It is in this pre-enforcement gap that the SCDD may offer a more promising path forward. Unlike the majority, which defers entirely to local governments, the SCDD requires judicial oversight when government action creates or heightens danger. In this sense, Grants Pass does not foreclose judicial intervention but opens the door for a potential new remedy for unhoused litigants.

In the next section, I argue for the right to self-shelter and demonstrate how anti-camping ordinances function similarly to the anti-sodomy law at issue in Lawrence v. Texas. The ordinances and laws in Grants Pass and Lawrence were not designed to prevent tangible harm but intended to stigmatize and subordinate a vulnerable group by punishing moral disapproval with the use of punitive sanctions. And, just as Lawrence rejected moral condemnation as an insufficient basis for criminalizing intimate conduct, courts should also reject ordinances that punish unhoused people for exercising the most basic liberty, the choice to self-shelter, which in itself is also a moral condemnation.

Part III: Dignity & the Right to Self-Shelter

The right to self-shelter may be recognized as a constitutional liberty interest under the Fifth and Fourteenth Amendments, which prohibit the deprivation of liberty without due process of law.^[55] This liberty interest can be informed by the constitutional value of dignity, which safeguards an individual’s ability to make necessary choices for survival and self-preservation.^[56] While the Constitution does not explicitly reference “dignity,” the principle has become deeply ingrained in U.S. constitutional jurisprudence,^[57] particularly through Justice Anthony Kennedy’s opinions.^[58]

Justice Kennedy’s jurisprudence illustrates how dignity operates as a constitutional value rather than an independent constitutional right—according to Justice Kennedy, dignity was often invoked as a shield against cruelty inflicted on either the physical body, social self, or psychological self.^[59] At his Senate confirmation hearing, Justice Kennedy emphasized that constitutional interpretation must begin with the text.^[60] Because “dignity” is not expressly mentioned in the Constitution, its application must be grounded in specific constitutional provisions.^[61] For example, in Planned Parenthood of Southwestern Pennsylvania v. Casey, Justice Kennedy “expressly linked dignity to autonomy” under the Fourteenth Amendment, writing that matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”^[62] At the heart of this liberty, Kennedy explained, is the “right to define one’s own concept of existence.”^[63] This approach, often referred to as “constitutive autonomy,” safeguards those personal decisions that are integral to identity and personhood.^[64]

Lawrence v. Texas provides a particularly useful illustration of Justice Kennedy’s use of dignity to inform the constitutional right to liberty under the Due Process Clause. To provide background, in Houston, Texas, police officers responded to an anonymous call reporting a weapons disturbance.^[65] When the officers entered John Lawrence’s apartment, they discovered Lawrence and Tyron Garner engaged in consensual sexual conduct.^[66] Both men were arrested and charged under Texas’s anti-sodomy law, which criminalized same-sex intimacy, and were fined.^[67] The Court considered whether two adults were free to engage in private, consensual sexual conduct without government intervention.^[68] Striking down a Texas statute that criminalized same-sex intimacy, the Court held that the Due Process Clause protects such choices as part of the liberty to which all persons are entitled.^[69] Writing for the majority, Justice Kennedy explained that “[l]iberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”^[70] In doing so, he grounded constitutional liberty in the value of dignity, recognizing that laws criminalizing intimate choices demean individuals by targeting conduct inseparable from their identity and operate to subordinate disfavored groups.^[71]

As Professor Ben McJunkin explains, while the Court in Lawrence was vague about whether the conduct at issue constituted a fundamental right, Justice Kennedy’s prolonged exploration of the “‘transcendent’ dimensions of due process” leaves little doubt that the Court was articulating the contours of one.^[72] The Court took a novel approach, defining the right not by its deep roots in the nation’s history and traditions, as is typical under originalist interpretations, but instead grounding its opinion through respecting an individual’s “self-definition” and self-governance, ultimately centering on intimate personal choices—although Lawrence concerned sexual intimacy, Justice Kennedy’s reasoning extended beyond privacy.^[73] He further explained that dignity protects a person’s right to make choices central to one’s personhood, even when those choices are stigmatized or unpopular.^[74] Criminalizing sodomy, he explained, demeaned the existence of LGBTQ+ people by branding their most intimate choices as crimes.^[75]

Seen through a dignified lens, Lawrence supports recognizing the right to self-shelter as a liberty interest rooted in dignity. Just as the Constitution protects a person’s intimate decision of whether and with whom to engage in sexual relationships, it should also protect the intimate decision of where and how to shelter oneself during periods of homelessness when no adequate alternative exists. Choosing where and how to shelter is a personal decision, thus reflecting a core liberty interest tied to dignity because it implicates survival, personal choice,^[76] and the preservation of community.^[77] When unhoused people set up encampments^[78] or sleep outdoors in the absence of adequate shelter, they are exercising autonomy over how to survive and endure conditions beyond their control. Anti-camping ordinances that prohibit encampments or sleeping outdoors strip individuals of this autonomy, forcing them into shelters that may be unsafe, inaccessible, or discriminatory, which otherwise subjects them to punitive sanctions. These ordinances undermine the very form of dignity-based liberty Justice Kennedy articulated in Lawrence—the right of individuals to define for themselves the most intimate and constitutive choices of existence.

A likely objection to grounding a right to self-shelter in Lawrence is that Lawrence itself confined liberty to private spaces, while self-sheltering necessarily takes place in public. McJunkin addresses this distinction by emphasizing that the answer lies in the comparison between the right to make sexual decisions and the right to self-shelter by distinguishing Lawrence’s private-space limitation.^[79] In the case of public sex, the state may invoke a weighty interest in prohibiting indecent exposure or lewd acts before nonconsenting observers—interests long recognized as grounded in moral and social norms and viewed as dangerous, disruptive, and infectious.^[80] By contrast, no similar potential for third-party harm arises from public camping.^[81] Simply existing in public spaces, even when visibly homeless, does not generate harm in the same way public sex might—at most, “exposing poverty to nonconsenting viewers . . . generates strong feelings of disgust and discomfort” among observers.^[82] But as McJunkin notes, such reactions are “insufficient grounds for criminal intervention[].”^[83] Moreover, arguments that homeless encampments unfairly convert public property into private space are also unconvincing. McJunkin expounds that “public spaces exist to be occupied, and homeless people are no less part of the ‘public’ entitled to use them like anyone else.”^[84] The true objection is not occupation itself, but the manner of use, as homelessness makes public spaces appear undesirable to others.^[85] In Grants Pass, while Justice Gorsuch cited public safety risks associated with sleeping outdoors, those risks are no greater than the countless ordinary dangers of everyday public life.

It is clear, after examining the Court’s long-established precedent in Lawrence, that the majority in Grants Pass failed to engage with its conception that liberty, informed by dignity, protects intimate and identity-defining choices from state-imposed harm. In Lawrence, the criminalization of same-sex intimacy effectively punished the status of being homosexual. The conduct at issue, engaging in sexual intimacy with a same-sex partner, was inseparable from the defendants’ identity as homosexual men. By criminalizing that conduct, Texas did not merely prohibit certain conduct; it rendered the very status of being homosexual legally suspect. The Court recognized this as an infringement on liberty because it denied individuals the ability to make intimate choices constitutive of their personhood and dignity. Similarly, ordinances that criminalize sleeping outdoors or erecting an encampment do not punish only “conduct,” but effectively punishes the status of being unhoused. The act of self-sheltering is a byproduct of homelessness, an unavoidable consequence of the condition when no adequate alternative shelter exists. In both contexts, the state transforms identity-defining choices into crimes; thus, infringing upon the liberty protected by the Due Process Clause.

Part IV: The State-Created Danger Doctrine

A. Background

The SCDD emerged from the Supreme Court’s 1989 decision in DeShaney v. Winnebago County Department of Social Services.^[86] In that case, Joshua DeShaney (“Joshua”), a four-year-old boy, was repeatedly abused by his father while living in Winnebago County, Wisconsin, from 1982 to 1984.^[87] Winnebago County Department of Social Services (“DSS”) received multiple reports of suspected abuse.^[88] On at least one occasion, Joshua was removed from his father’s custody, but later returned after DSS concluded that there was insufficient evidence of abuse.^[89] Afterwards, despite repeated reports to DSS of ongoing incidents of child abuse and a DSS caseworker reporting her suspicion, Joshua remained in his father’s custody.^[90] In 1984, Joshua was beaten so brutally that he suffered severe permanent brain damage and “is expected to spend the rest of his life confined to an institution for the profoundly retarded.”^[91] Joshua’s mother sued Winnebago County and its DSS officials, arguing that their failure to intervene to protect him against a risk of violence of which they knew or should have known deprived Joshua of his liberty without due process of law under the Fourteenth Amendment.^[92]

The central question before the Court was whether the government’s failure to protect an individual against private violence could amount to a constitutional violation.^[93] Chief Justice Rehnquist, writing for the majority, answered: “No.”^[94] The Court emphasized that because “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors,” the Clause is “phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security.”^[95] In other words, the Constitution generally protects individuals from affirmative state interference, not from state inaction. The Court’s precedent supports that the Due Process Clauses “generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.”^[96] Although the Court denied the existence of any general government duty, Chief Justice Rehnquist identified circumstances where the government would have a duty to provide protection. He states, “[i]n the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf—through incarceration, institutionalization, or other similar restraint of personal liberty—which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.”^[97] Put differently, the Court acknowledged that the Due Process Clause may be implicated when the state itself plays a part in creating a danger or renders an individual more vulnerable to it.^[98] This acknowledgment became the basis of the SCDD. In the decades since DeShaney, nearly every federal circuit court has recognized some version of this doctrine, but it remains unsettled by the Supreme Court, leading to a circuit split and significant inconsistencies in how lower courts apply it.^[99]

B. The Circuit Split

The Supreme Court has not established a specific test for the State-Created Danger Doctrine. While the Court has established general culpability thresholds for constitutional torts under the Due Process Clause—holding that negligence is insufficient, but that deliberate indifference and recklessness may be sufficient, and that in emergency situations, liability requires conduct that “shocks the conscience”—it has left lower courts to develop their own frameworks.^[100] The circuits that recognize the doctrine vary in how narrowly or broadly it is applied.^[101]

The Second Circuit has recognized liability when state actors take affirmative actions that create or increase a risk of danger to victims.^[102] While it does not define “affirmative actions,” it has extended this reasoning beyond overt acts to include implicit conduct and sustained inaction that amounts to affirmative conduct, even if there is no approval or encouragement.^[103] The Second Circuit rejected DeShaney’s “special relationship” condition, which broadens the circumstances under which plaintiffs can bring their claims.^[104] The Third Circuit adopted a more structured test with four elements to prove liability. First, the harm caused was foreseeable and fairly direct.^[105] Second, the government conduct shocks the conscience.^[106] Third, a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general.^[107] Finally, the state actor affirmatively used their authority in a way that created danger or rendered the plaintiff more vulnerable than if no action had been taken.^[108] This circuit also struggles to define “affirmative conduct” like the Second Circuit.^[109] However, it does recognize liability in “hyperpressurized environments” where liability attaches only when a plaintiff shows that the harm was intentionally caused.^[110] The Fourth Circuit has also been highly restrictive. In Pinder v. Johnson, it held that recognizing a right to affirmative protection would raise public policy concerns because it may expose the government to limitless liability.^[111] Looking at Callahan v. North Carolina Department of Public Safety, it emphasized that only affirmative government conduct that directly creates or increases danger qualifies, while omissions or failures to act categorically do not.^[112]

The Sixth Circuit focused on the issue of vulnerability to danger through deliberate indifference and has relied on the Supreme Court’s definition to establish liability.^[113] However, there is a lack of consistency in how state-created danger claims are decided.^[114] In Cartwright v. City of Marine City, the court adopted a “special danger” element, requiring that the state’s conduct must place the plaintiff at risk, as opposed to the public at large.^[115] In Jones v. Reynolds, the court outlined two other elements.^[116] First, an affirmative act by the state that either created or increased the risk that the plaintiff would be exposed to an act of violence by a third party.^[117] Second, knowledge or constructive knowledge on the part of the state that its actions specifically endangered the plaintiff.^[118] The Seventh Circuit recognizes the doctrine but also has strict requirements. Its test requires that affirmative state acts create or increase danger, the state’s conduct must be the proximate cause of the plaintiff’s injury, and the state’s failure to protect the individual must shock the conscience.^[119] This circuit often rejects claims where plaintiffs are deemed to have assumed the risk.^[120] The Eighth Circuit developed a five-factor test, excluding the affirmative act element, and requiring that plaintiffs are members of a limited and definable group, the government’s conduct put the person at significant risk of serious, immediate, and proximate harm, the risk was obvious or known, the government acted recklessly in conscious disregard of the risk, and the conduct shocks the conscience, when viewed in total.^[121] To prove the last element, the government action must be so egregious and so outrageous that it shocks the contemporary conscience.^[122]

The Ninth Circuit has long embraced the doctrine, even prior to DeShaney, most notably in Wood v. Ostrander.^[123] Its test requires that the state affirmatively created or enhanced danger, acted with deliberate indifference, and caused foreseeable harm to the plaintiff.^[124] The Tenth Circuit requires that there be an actual intent to harm or expose the victim to risk without regard to the consequences to prove liability.^[125] It applies a six-part test that requires that the state actors created or increased the danger, the plaintiff belongs to a limited, definable group, the conduct put the plaintiff at substantial risk of serious, immediate, and proximate harm, the risk was obvious or known, the government acted recklessly in conscious disregard of that risk, and when viewed in total, the conduct shocks the conscience.^[126] The Tenth Circuit has not established a standard for conscience-shocking conduct, resulting in uncertainties regarding how the test should be applied.^[127] The Eleventh Circuit uses both subjective and objective standards.^[128] Subjectively, plaintiffs must show that the government had subjective knowledge of a serious risk and disregarded it with deliberate indifference.^[129] Objectively, the test asks whether a reasonable official would recognize that their conduct constitutes a constitutional violation.^[130]

Looking across the circuits, it is clear that no two courts apply the SCDD in the same way. For example, the Second and Ninth Circuits apply it broadly, allowing liability for a wide range of government conduct, whereas the Third, Fourth, and Seventh Circuits impose strict limitations, requiring a more direct or narrowly defined misuse of state authority. Although there are recurring elements in some circuits, such as the requirement of an affirmative act, the foreseeability of harm, or the need for a definable plaintiff, the circuits define these terms differently. These definitional divergences create uncertainty about what the doctrine actually requires and make it more difficult for courts and even litigants to determine when liability will attach. The SCDD has been applied in cases ranging from law enforcement officers abandoning individuals in dangerous situations^[131] to law enforcement officers releasing an abusive partner, which foreseeably led to the abuser killing the victim.^[132]

This SCDD could similarly be extended to laws that criminalize homelessness, as they actively place unhoused people in greater danger than they would have otherwise faced. For instance, incarcerating unhoused people for sleeping in public spaces exposes them to violence, exploitation, and unsafe conditions while detained.^[133] Encampment sweeps forcibly displace unhoused people from established communities, often leaving them without shelter or belongings, making them vulnerable to assault, theft, or fatal exposure to extreme weather.^[134] Additionally, restrictive shelter policies, such as prohibiting pets, barring individuals with substance use disorders, or imposing strict time limits on shelter stays, can result in individuals being left with no viable alternatives, forcing them to self-shelter, risking criminalization.^[135]

C. A New Test: The State-Created Danger Test

1. Elements of the Proposed State-Created Danger Test

To resolve the circuit split and ensure the consistent application of the SCDD, the Supreme Court should adopt a uniform standard: the State-Created Danger Test.^[136] Under this test, plaintiffs may bring a claim by showing that the government conduct: (1) materially increased the danger; (2) was undertaken with deliberate indifference or reckless disregard; and (3) had a clear nexus between the government’s action and the infringement of a constitutional right.^[137] This test avoids the Supreme Court’s “shocks the conscience” standard, which is notoriously difficult to satisfy—it also eliminates the “affirmative act” requirement, which has created confusion across the circuits.^[138] Finally, it removes the requirement that the plaintiff belong to a definable group, ensuring the doctrine protects all victims rather than discrete classes. Ultimately, this test strikes a proper balance between the countervailing interests at stake. On one hand, “[s]tate actors, especially those such as police who regularly operate in tense and dangerous circumstances, rightfully must be allowed to do their jobs without hesitating to calculate the likelihood of litigation.”^[139] On the other, the doctrine must be sufficient to empower citizens to “hold the powerful state responsible for flagrant and glaring abuses, . . . [which] could become worse and more prevalent if left completely unchecked.”^[140]

In this proposed test, the first element requires that the government’s conduct materially created or increased the danger to the victim. This element allows courts to make a qualitative judgment about the degree to which the defendant’s conduct heightened the likelihood that harm would occur.^[141] Importantly, this element recognizes the full spectrum of how government operates, where danger can result not only from overt affirmative acts but also from inaction in circumstances where the state has exercised control. This approach aligns with the Second Circuit’s recognition that both action and omission may qualify as “affirmative” when the state exercises control.^[142] By focusing on substance rather than semantics, this element avoids the definitional disputes over “affirmative acts” that have affected the outcome of some circuit cases.

The second element clarifies the appropriate threshold of culpability. Negligence is too low to justify constitutional liability, while the “shocks the conscience” standard is too high that it insulates even egregious misconduct.^[143] A deliberate indifference or reckless disregard standard resolves this imbalance. Liability would attach only when officials knew or should have known of the risk and consciously disregarded it. This may be established through prior warnings, a pattern of recurring harm, or well-documented consequences. This requirement provides a clear standard and is necessary to avoid penalizing negligible conduct while ensuring accountability for government actors who create danger to the victim.

The third element requires a nexus between the government’s conduct and the infringement of a constitutional right. This element prevents the doctrine from devolving into a generalized tort remedy,^[144] instead it ensures that liability arises only when government conduct directly burdens constitutionally protected interests such as liberty or property. By narrowing the inquiry to constitutional rights, courts can distinguish between ordinary negligence claims and constitutional violations. This element also balances public policy concerns. Some state actors, specifically law enforcement officers, frequently operate in dangerous and unpredictable situations where decisions must be made without hesitation. The point is not to expose them to liability for every imperfect decision they make. Nevertheless, when state actors act in a manner that is counter to the constitutional safeguards afforded to all persons, they should be held accountable.

2. Benefits and Limitations of the State-Created Danger Test

The State-Created Danger Test offers a well-defined, consistent, and constitutionally supported standard for applying the SCDD. This proposed test resolves the long-standing circuit split that has left the doctrine underdeveloped and inconsistently applied. Its focus is to ensure access to justice, especially for members of vulnerable groups. The test combines certain elements common to different circuits, including deliberate indifference or reckless disregard. This test also clarifies when deliberate indifference is sufficient and does not require the “shocks the conscience” standard, making it easier to hold government actors accountable for their conduct. Moreover, the test incorporates a nexus threshold to avoid opening the floodgates to multiple suits that could overwhelm the courts, ensuring that only government conduct that infringes on a constitutional right is actionable.^[145]

Nevertheless, some may view this test as expanding constitutional liability too broadly, to the point where it transforms the Due Process Clause into a general guarantee of protection that would allow anyone to challenge government action unfavorable to them, without considering that a particular law or policy was enacted for a legitimate government purpose. However, the test’s negative-rights structure provides a clear boundary, as it does not impose a general duty to aid but prohibits the government from worsening an individual’s condition. A further critique may be that the first element of the test introduces judicial subjectivity by requiring courts to evaluate the disproportionate impact of laws on a certain group of people. For example, determining whether anti-camping ordinances “target” unhoused individuals may appear speculative. Finally, there may be concern that this test could deter legitimate government decision-making and enforcement due to fear of facing litigation, particularly in cases involving laws aimed at addressing homelessness. However, the State-Created Danger Test does not prohibit law enforcement from enforcing laws or protecting public safety; it merely requires that when doing so, the government must not place people in danger.

Part V: President Trump’s Crackdown: Executive Order 14,321 and Encampment Sweeps in the District of Columbia

A. President Trump’s Executive Order

In July 2025, a year after the Grants Pass decision, President Trump signed Executive Order 14,321 (“EO”): Ending Crime and Disorder on America’s Streets.^[146] The order propelled a federal push to clear homeless encampments nationwide, which President Trump linked to rising crime, thus turning away from the longstanding federal homelessness policy to eradicate it by providing access to resources.^[147] The order aims to accomplish at least six goals. First, the EO encourages the expansion of involuntary civil commitment, allowing the Department of Justice (“DOJ”) to seek the reversal of judicial precedents and consent decrees that limit civil commitment, and to support states in adopting more flexible commitment and treatment laws.^[148] The problem with this provision is that mental health professionals have used it only for a short period of time, typically in rare instances, for selected patients with mental illness who pose a threat to themselves or others.^[149] Persons incarcerated in mental hospitals are deprived of liberty because those living in institutionalized settings are deprived of friends, family, and community, as institutionalized patients must live in unnatural surroundings under the control of strangers.^[150] Yet, the EO fails to address whether investments will be made to community-based resources, such as outpatient treatment, supportive housing, and mental health services that support the future health trajectory of the person.^[151]

Second, the EO eliminates unconditional federal support for Housing First. Under the evidence-based Housing First model, access to housing is prioritized without preconditions, such as sobriety or compliance with mental health or substance use treatment, while supportive services are offered on a voluntary basis to promote housing stability and improved quality of life.^[152] The EO departs from this approach by directing HUD and Health and Human Services (“HHS”) to condition housing assistance on active participation in treatment for substance use disorders or severe mental illness, as the administration believes Housing First deprioritizes accountability and fails to promote treatment, recovery, and self-sufficiency.^[153] Conditioning federal support of housing assistance in this way is a threat to a person’s dignity because the EO converts treatment from a voluntary service into a prerequisite for access to housing, thereby undermining individual agency and denying unhoused individuals a meaningful choice.^[154] Third, the EO prioritizes federal support for jurisdictions enforcing public safety laws that ban urban camping, loitering, squatting, and open-air drug use by awarding discretionary grants to local law enforcement for compliance.^[155] Fourth, the EO targets harm reduction efforts by authorizing DOJ to initiate enforcement action against federally funded organizations that operate safe consumption sites where drug paraphernalia is distributed or on-site drug use is permitted.^[156]

Lastly, the EO mandates interagency data sharing with law enforcement authorities, thus increasing surveillance of unhoused individuals and further compromising their autonomy and civil liberties.^[157] In effect, this EO aims to criminalize homelessness under the guise of public safety. Not only does this directive encourage punitive measures to address homelessness, but it also awards this treatment by providing funds to jurisdictions that follow its directive. Since the issuance of this EO, President Trump’s directive to dismantle homeless encampments in Washington, D.C.—further explored below—has displaced numerous unhoused individuals. These enforcement actions, especially when carried out with knowledge of an inadequate shelter system, constitute affirmative state action that foreseeably increases the risk of harm. Thus, this EO falls within the State-Created Doctrine’s reach, where constitutional scrutiny under the Due Process Clause is not only appropriate but imperative.

B. D.C. v. Trump: Crackdown in Washington, D.C.

In August 2025, President Trump declared a public safety emergency in Washington, D.C., and asserted direct federal control over the city’s law enforcement using Section 70 of the Home Rule Act.^[158] Trump announced that he was “taking over” the Metropolitan Police Department (“MPD”) and deploying National Guard Troops to assist in patrolling the streets.^[159] Trump justified this takeover by asserting that D.C. is “one of the most dangerous cities in the world” and claimed that homeless encampments made the city unsafe.^[160] On August 11, the White House declared a 30-day federal emergency in D.C., during which law enforcement was authorized to dismantle encampments.^[161] The U.S. Park Police spearheaded sweeps on federal land, such as national park areas and the National Mall, while MPD cleared encampments on city property.^[162] Although few arrests or confrontations occurred during the sweeps, the White House warned that it would fine or arrest individuals who refused to move.^[163] Federal officials directed people to nearby shelters.^[164] However, clearing these encampments displaced even more unhoused D.C. residents; people did not suddenly have shelter. Amber Harding, Executive Director of the Washington Legal Clinic for the Homeless, said, “[w]e do not have enough shelter beds for everyone on the street.”^[165] To stay out of sight, many displaced Washingtonians are riding city buses or the Metro trains at night, or finding secluded corners to sleep.^[166] With existing shelters at or near capacity, D.C.’s Department of Human Services made over 100 beds available in light of the crackdown, and Mayor Bowser’s administration also invoked the city’s cold weather shelter protocol, which allows overflow arrangements so that no one is turned away even if shelters are full.^[167] However, even with the additional shelter beds available, unhoused people are not guaranteed to use them. People are often kept out of shelters due to issues with their pets, partners, possessions, or substance-use issues.^[168] D.C.’s shelter system clearly demonstrates that merely providing a bed is insufficient; the inadequacies of the shelter system show the necessity of recognizing a right to self-shelter as a fundamental right.

C. Application of State-Created Danger Test

With regard to the first element, in the context of anti-camping ordinances that deny unhoused people the right to self-shelter, the government action of penalizing them for sleeping outdoors, through fines or incarceration, materially increases their risk of danger. Fines imposed on people already financially insecure exacerbate poverty, while incarceration often places them in unsafe or overcrowded jail conditions.^[169] Furthermore, encampment sweeps create or exacerbate the harm to unhoused people by displacing people from relatively stable communities where they have informal support networks. The mental toll of being forcibly displaced, often without notice, can cause or worsen mental health issues like anxiety and depression, especially when individuals are separated from familiar surroundings and social networks.^[170] Taken together, these actions create or increase danger by stripping unhoused people of the limited options they have for survival, infringing on their constitutional right to liberty.

In the context of homelessness, deliberate indifference can be demonstrated when government officials enforce punitive anti-camping ordinances while knowing they will disproportionately harm unhoused people, who are especially dependent on sleeping outdoors. For example, city officials who conduct encampment sweeps during extreme weather act with deliberate indifference to public health warnings and knowingly expose unhoused people to health risks.^[171] Likewise, when shelters enforce restrictive policies, officials know these rules exclude large segments of the unhoused population, forcing them outdoors and increasing their exposure to encounters with law enforcement. When this happens, unhoused people are at risk of incarceration or fines.^[172] Repeatedly arresting unhoused people with known mental health conditions without providing access to mental health resources demonstrates the same disregard for the severe and cumulative harm incarceration can cause.^[173] At the federal level, policies such as President Trump’s EO, which incentivizes punitive encampment sweeps and the removal of unhoused people from public sidewalks while disregarding their constitutional liberty, exemplify deliberate indifference because they expose individuals to foreseeable harms that government actors knew or should have known.

The nexus element can be satisfied in the context of anti-camping ordinances and similar policies that are facially neutral but enforced almost exclusively against unhoused people, effectively singling them out because they have limited sleeping options. This enforcement burdens the liberty interest in self-sheltering because it strips unhoused people of the autonomy to decide where and how to survive when no adequate alternative exists.^[174] Thus, this element ensures that the doctrine remains tethered to substantive constitutional protections rather than becoming a generalized tort remedy.

In short, the proposed three-element test yields a result distinct from Grants Pass because it recognizes the infringement of liberty that occurs when survival conduct is criminalized. At the same time, the test demonstrates the necessity of a uniform standard by showing how it could give judicial review of federal policies such as the Trump Administration’s Executive Order, ensuring the government is held accountable when its actions put people in dangerous situations.

Conclusion

By acknowledging the right to self-shelter and to be free from state-created danger, this Note seeks to illuminate a path forward in the wake of an unprecedented presidential administration. The Supreme Court’s refusal in Grants Pass to extend Eighth Amendment protections for unhoused people demonstrates the Court’s inflexible jurisprudential standards. Beyond leaving unhoused people without constitutional recourse against laws that disproportionately affect them, the decision threatens their survival. Nevertheless, this vacuum creates an opportunity for courts to rethink liberty through the lens of dignity, recognizing that the freedom to decide how to shelter is a fundamental choice safeguarded by the Constitution.

The SCDD, once the circuit split is resolved, provides a doctrinal framework that both adheres to institutional limits and ensures that the government is held accountable when its actions create or increase the conditions of homelessness. In conclusion, the right to self-shelter is not about circumventing the law, but about ensuring that constitutional liberties are safeguarded.