The War to End All Encampments: Criminalizing Solidarity

Rachel Ida Buff

Judge Gorsuch’s decision attempts to criminalize protest and solidarity actions. https://jimwestphoto.com

IN THE SPRING of 2024, students around the world set up Gaza solidarity encampments — at the same time that the U.S. Supreme Court took up the legality of camping on public lands.

The concurrence points to connections between rightwing opposition to pro-Palestine organizing and the ongoing campaigns to delimit collective rights to public space. It also indicates a powerful ideological assault against a broad array of practices of solidarity.

In City of Grants Pass vs Johnson, unhoused respondents Gloria Johnson and John Logan claimed that regulations imposed by the city of Grants Pass, Oregon, prohibiting sleeping outside, are unconstitutional. The case engaged the question of whether municipalities can punish mostly involuntarily unhoused people sleeping in public spaces.

Theane D. Evangelis of Gibson, Dunn & Cutcher represented the city of Grants Pass. Indigenous land and water defender Winona LaDuke describes Gibson, Dunn & Cutcher as part of a “modern cavalry.”

This same firm supported Energy Transfer Partner’s SLAPP (Strategic Lawsuit Against Public Participation) case against Greenpeace for its support of the NO DAPL encampment at Standing Rock in 2015-16.

In addition, the firm did pro bono work to support the Brackeen family’s case against the Indian Child Welfare Act (ICWA) in Haaland v Brackeen, and represented Chevron, parent company of Texaco, against claims by the Indigenous Cofan people of Ecuador and their lawyer, Steven Donzinger.

Evangelis herself belongs to the Federalist Society, which supports the legal assault against Indigenous sovereignty, and organizes against the long tradition of federal Indian law. As the “modern cavalry,” such legal efforts oppose Indigenous collective practices, including ICWA’s protection for Indigenous forms of relationship and care outside of the nuclear family.

The firm’s support for the city in Grants Pass v Johnson illuminates ideological and strategic connections among three ongoing wars — against Indigenous sovereignty; the assault on Palestine solidarity organizing; and the criminalization of practices of solidarity, including encampments, caravans, and mutual aid funds.

Criminalizing Homelessness

Cities and towns around the country are experiencing the worst housing crisis since 2007, the eve of the Great Recession. Rampant real estate development and speculation inflate costs, placing home buying and even renting out of reach for many.

This crisis forces many people to become unhoused for the long or short term; a recent count places the number at over 600,000.

Grants Pass has one shelter, the Gospel Rescue Mission, which is operated by a private, Christian organization and does not have enough beds to accommodate the city’s burgeoning unhoused population.

But the city is determined enough to clear out its homeless population that a city council member suggested in 2013 that the city force them onto buses headed out of town, saying: “the point is to make it uncomfortable enough for them in our city so they will want to move on down the road.”

While a lower court ruled in 2018 that Grants Pass’ sanctions for sleeping in public spaces constitute a violation of Eighth Amendment protections against “cruel and unusual punishment,” the city pursued its appeal, winning the case with the support of the Gibson, Dunn & Cutcher and the court’s conservative majority.

Evangelis presented the case as a public safety issue, deploying purple prose worthy of 19th century “yellow peril” tracts to portray unhoused encampments as sites of drug dealing, filth, and gang activity.

Dismissing the defense’s arguments that outlawing public camping discriminates against unhoused people and punishes them with ballooning fines that they are unlikely to be able to pay, the court found that such penalties do not constitute “cruel and unusual punishment.”

Further, it found that targeting people sleeping outside does not discriminate against a particular class of people. Despite arguments by the court’s three-person liberal minority who argued that sleeping is a human need and should not be made illegal, the court’s decision essentially criminalizes homelessness, making people forced to sleep outside liable for the crime of doing so.

Penalties assessed against unhoused people are likely only to stack up, immuring those already contending with financial exigency further into debt and making it more likely that they will remain homeless.

The court’s decision legitimizes the municipal demolition of encampments, where unhoused people can share resources and create a modicum of shelter from the storm of being forced to live outdoors.

Such destruction, common around the country, gains traction as a way for municipal authorities to claim that they support public safety, but does little to contend with the ongoing housing crisis.

Writing for the majority, Justice Neil Gorsuch observed more than once that “those living without shelter often live together,” indication that he views such cohabitation as a problem in itself.

His decision insists that laws against public sleeping do not target a particular population, though most people targeted by the regulations the decision permits are unhoused.

Gorsuch asserts that “Under the city’s laws, it makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.”

It is unlikely that Gorsuch’s reference to a student encamped on a lawn was arbitrary. The justice would have had the Palestine solidarity encampments on his mind, as news coverage of them was ubiquitous at the time he was writing the decision.

His phrasing indicates the court’s broad agenda of criminalizing protest and solidarity. While Gorsuch emphasized that the Grants Pass decision empowers state and local governments, the outcome of the case invokes a thin cover of states’ rights and public safety to enable the repression of solidarity and protest.

Demonizing Student Encampments

The widespread campaign by university, municipal, state and federal authorities to prohibit the return of last spring’s campus encampments further reveals the extent of the rightwing war on collectivity.

As in the case for penalizing unhoused people for the crime of sleeping in public, this assault is presented as necessary for public safety, particularly the safety of Jewish students.

The Gaza solidarity encampments of spring, 2024 were exemplary educational spaces organized by students and supported by faculty, staff and community members.

They included teach-ins on multiple topics, interfaith services and peaceful protests demanding that universities end their complicity with the industrial military complex sending billions of dollars in weapons to facilitate the Israeli genocide in Palestine.

Students, faculty and staff from diverse backgrounds, including many Jewish people, took part in these activities. These peaceful encampments occasioned severe and ongoing repression, including physical brutality, from university administrations and local police.

At UCLA, university police stood by for hours as Zionist counter-protesters attacked encamped students, and then rallied to arrest twenty-seven encampment students, faculty and community members.

At the University of Wisconsin-Madison, Columbia and many other campuses, university administrators did not hesitate to direct university police to use physical force against encampment participants.

Hauled into special congressional sessions to testify about what was taking place on their campuses, college presidents were reduced to stammering, unwilling or unable to defend the freedom of expression and right to safety on campus of their students and employees.

Most campus encampments came down by summer, but that was not enough for the forces of order. Administrators worked tirelessly over the summer — not for the demands of the university communities they allegedly serve to divest and cut ties with Israel, but to implement policies and procedures preventing future encampments.

With the aid of paid educational consultants, they crafted convoluted and deceptively named freedom of expression and civility policies delimiting protest. Moving quickly, they suspended student organizations as well as individual student organizers for violating these policies.

At Cornell, university administrators set a precedent by calling the Immigration Customs Enforcement Agency (ICE) to deport suspended graduate student organizer Momodou Taal. This repression was partially enabled by definitions of antisemitism which include criticism of the state of Israel.

Just as the case against the unhoused is part of a broader effort to eradicate collective formations like Indigenous sovereignty, opposition to encampments and student protest on campus represent one arm of a long campaign to counter international condemnation of Israeli practices.

Speaking at a meeting of the American Israel Public Affairs Committee (AIPAC) in October, House Majority leader Steve Scalise (R-LA) vowed to strip accreditation and federal monies from public and private campuses which do not “crack down” on “anti-Israel protests.”

The Anti-Defamation League, founded in 1913 to combat antisemitism and discrimination and now a primary bolster of the notion that any criticism of the state of Israel is equivalent to anti-Semitism, issued a report on “Anti-Israel Activism on US Campuses, 2023-24.”

In it, ADL asserted that the Gaza solidarity encampments were spaces of violence and vandalism — in much the same way that the Gibson, Dunn, and Crucher lawyers and Justice Gorsuch portrayed unhoused encampments in Grants Pass.

While there may well be cause to set up more encampments, with the genocide in Gaza ongoing and Israel attacking the West Bank, Lebanon, Yemen, Syria and Iran, those seeking to set them up will face challenges from local forces of order, backed by state and federal law as well as powerful institutions. Like the assault on the civil rights of unhoused people, the impediments now installed against campus protests are as intentional as they are deadly.

Practices of Solidarity

The war against the encampment is an assault on collective solidarity.

Such assaults are familiar staples of white nationalist political rhetoric; they have been similarly mounted against other forms of collective solidarity, such as the mutual aid funds supporting protesters at Cop City in Atlanta, migrant caravans as dangerous, and sanctuary churches, campuses and cities that seek to shelter undocumented denizens.

People gather in impossible conditions, because being together in a church building turned sanctuary, or in a walking caravan, or in an encampment where tents and food and ideas are shared, is sometimes the only available shelter from the ongoing storm of history.

They set a watch for overnight so that people can sleep in safety; a Palestinian restaurant owner arrives in the early morning hours, van steaming with the fragrant aroma of her donated breakfast; a drowsy voice calls everyone to morning prayer over a fritzy sound system.

A neighbor passes milk through the window to a protester running from police, eyes stinging with teargas; a pet cockatoo makes the dangerous journey through the Darien Gap, hoisted onto familiar and strange shoulders; people from far away become beloved relatives because of their shared commitment to protecting the land or the water.

These are our collective resources and inheritance; they are what remains of the commons long shared by Indigenous nations and peasant agrarians.

Villainizing those who insist on working together and owning things in common is the oldest political traditions in the Americas. It has long been weaponized against Indigenous nations and collectivist formations: maroons, communists, labor organizers, anarchists.

Criminalizing solidarity is an attempt to conquer the commns and make us afraid of each other instead of collaborating for our collective survival.

January-February 2025, ATC 234