The most significant homeless case in decades, according to some pundits, was heard by the Supreme Court on Monday. The decision in that case, Grants Pass v. Johnson, may determine how aggressive cities can be in breaking up homeless encampments and moving homeless people out of parks and other public spaces where they set up their tents and other shelters.
The city of Grants Pass, Oregon, population 38,000, encountered 600 homeless on any given day. To deal with this problem, the city passed a law in 2013 that effectively banned public camping on city property. The law prohibited sleeping in public while “using a blanket, pillow, or cardboard box for protection from the elements.”
A district court ruled the law unconstitutional, saying it amounted to cruel and unusual punishment and violated the Eighth Amendment. The Ninth Circuit Court of Appeals upheld the district court ruling. That decision follows the precedent the Ninth Circuit established by ruling in 2018 that a municipality, Boise, Idaho, could not enforce anti-camping ordinances on public land unless sufficient beds were provided in shelters for the residents of the encampments.
The plaintiffs’ argue in Grants Pass that, because the city has no public homeless shelters, by banning sleeping outside with protection from the elements, or camping in a park or other public space, homeless people are perforce involuntarily homeless and cannot be punished for not having a home. They are, in effect, being punished for a status — the status of being homeless.
The cruel and unusual punishment argument relies heavily on a 1962 decision, Robinson v. California, in which the court found that the Eighth Amendment prohibits a person from being punished for being addicted to drugs. The plaintiffs in Grants Pass expand that ruling to argue that the homeless possess an “involuntary status” — that is, homelessness — punishment for which is prohibited by the Eighth Amendment.
This case brings together unlikely allies. The state of California filed an amicus brief with Grants Pass, as did cities fighting their own homelessness issues like Phoenix, San Francisco, Los Angeles, San Diego, Portland, and Seattle. Joining them is the Goldwater Institute, never known as a friend of the Left.
These municipalities criticize the Ninth Circuit for a ruling that has led to sprawling homeless encampments within their boundaries. They want the court to clarify what they can do to reclaim their public spaces, for health and safety reasons, without running afoul of the law.
Timothy Sandefur, vice president for legal affairs of the Goldwater Institute, told the New York Times, “[T]he Ninth Circuit ruling that you have a constitutional right to sleep in a public park is unworkable and has got to be reversed.”
The lawyer for Grants Pass, Theane D. Evangelis, told the court: “[The Ninth Circuit’s ruling] left cities with really no choice. Either keep building enough shelter that may or may not be adequate or suitable to someone’s preferences or be forced to give up all of your public spaces. That is what’s happened.”
Observers at Monday’s SCOTUS hearing reported that the justices seemed to split along party lines, the conservatives siding with Grants Pass, the liberals with the homeless plaintiffs.
The conservatives on the court seemed sympathetic to the Grants Pass argument, that a complicated issue such as homelessness is better approached by local legislatures and courts than on a national level. Chief Justice John Roberts intimated that local decisions would be more effective than one-size-fits-all federal rulings. He asked, “Why would you think that these nine people are the best people to judge and weigh those policy judgments?”
Justice Brett M. Kavanaugh asked administration lawyer Edwin S. Kneedler, speaking for the U.S.: “I think one of the questions is, who takes care of it on the ground? Is it going to be federal judges? Or is it the local jurisdictions with – working with the nonprofits and religious organizations?”
Liberal justices energetically argued that homelessness was not conduct but a status, and thus protected by the Eight Amendment’s prohibition of cruel and unusual punishment. Justice Elena Kagan likened homelessness to breathing. “Sleeping is a biological necessity,” she said. “It’s sort of like breathing…. But I wouldn’t expect you to criminalize breathing in public.”
Justice Neil Gorsuch pushed back. “How about if there are no public bathroom facilities?” he asked. “Do people have an Eighth Amendment right to defecate and urinate? Is that conduct or is that status?”
The left side of the bench seemed to sympathize with the homeless plaintiffs. But Grants Pass worried that if the Supreme Court ruled its law illegal, a precedent would be set that would further handcuff local municipalities in dealing with homelessness, and encourage even more encampments.
The homeless problem is particularly acute in the Ninth Circuit footprint, the nine Western states under its jurisdiction. Credit the weather, the scenery, or permissive governmental attitudes toward homelessness, but 42 percent of all U.S. homeless individuals live in those states. California is way out ahead of the other states in homeless population; counting about 145,000 homeless, the Golden State tallies about 35 percent of the nation’s homeless and more than half the people (52 percent) living on the street. Other cities in the circuit also suffer acutely from the crisis.
While first looking at the homelessness problem as solvable, the cities in this region have thrown up their hands in the face of the rising flood of homeless people rushing into their municipalities. Phoenix, finally, after tolerating it for years, mustered the sand to clear a settlement of about a thousand homeless people camped near the capitol last year. Los Angeles faces similar problems and has cleared lengthy encampments bordering freeways and elsewhere, and mayoral candidates all vied for votes last fall with proposals to diminish the encampments. Portland banned camping on public property during daylight hours. San Francisco, as we know, famously scrubbed the city, to strident criticism from the Left, in preparation to China strongman Xi Jinping’s visit.
But always these cities have feared the legal repercussions of their actions, on the basis of the ambiguous Ninth Circuit rulings.
All parties are looking for legal clarification on the homeless issue. How can cities keep their citizens’ health and safety foremost while respecting the rights of those without homes?
An answer to that question is forthcoming in late June.
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