Homelessness is a premier crisis facing the United States. Municipal and state governments have widely failed to create long-term solutions to this complex social issue, and homeless encampments have proliferated across the nation. Encampments provide residents with community, protection, and storage, but can also negatively affect public health and facilitate intra-encampment crime. Governments have responded with short-term solutions: “sweeps,” which eject encampment residents for site cleaning. They are expensive, detrimental to residents’ health, and counterproductive in addressing homelessness. When done during extreme environmental conditions and while shelter space is unavailable, they become cruel and deadly.

Executive actions like sweeps are normally entitled to immunity. However, the state-created danger doctrine under the Fourteenth Amendment allows the piercing of this veil. Under the Ninth Circuit Court of Appeals’ standard, when government officials conduct sweeps with deliberate indifference to foreseeable, harmful environmental conditions so as to throw unhoused people into a metaphorical snake pit, they commit actionable constitutional violations. Advocates have successfully used this doctrine in several circuits to obtain temporary restraining orders against sweeps. Yet the Fifth Circuit Court of Appeals stands alone as the only circuit to consistently refuse to accept the doctrine. This leaves unhoused people powerless against unconstitutional sweeps despite states in the Fifth Circuit’s jurisdiction facing a growing homelessness crisis and worsening environmental conditions.

This Note argues that it is necessary for the Fifth Circuit to join its sister circuits and finally adopt the state-created danger doctrine. A claim based on an encampment sweep is the perfect vehicle for it to do so, as such a claim is not predicated on harm from a third party and has historical analogs predating the Fourteenth Amendment.