The U.S. Supreme Court on Friday reversed lower court rulings, finding that public camping restrictions issued by southern Oregon’s Grants Pass do not constitute “cruel and unusual punishment.”
The court split largely along ideological lines in a 6 to 3 vote in a decision that likely will have significant reverberations around the country.
Justice Neil M. Gorsuch wrote for the majority that the enforcement of laws regulating camping on public property is “commonplace” and not barred by the Eighth Amendment. He found that homelessness is “complex” and that the city’s limited fines for first-time offenders, bans from public parks for repeat offenders and a maximum of 30 days in jail for any violators are punishments that don’t add “terror, pain or disgrace.”
Citing a brief from California Gov. Gavin Newsom, Gorsuch wrote that many broadly agree that “policymakers need access to the full panoply of tools in the policy toolbox” and must “have the latitude” to tackle the complicated issues of homelessness and lack of housing.
The court found that prior rulings by the 9th Circuit Court of Appeals in the Grants Pass case and another case in Boise that narrowed what cities can do to restrict public sleeping on streets, parks and sidewalks may have inadvertently increased the homelessness problem by weakening how cities can respond.
“In Portland, for example, residents report some unsheltered persons ‘often return within days’ of an encampment’s clearing,” understanding that case law has prohibited the city from taking more stringent measures, Gorsuch wrote.
The court also found that the Grants Pass restrictions don’t criminalize the “mere status” of being homeless. Despite counter arguments that Grants Pass issued fines and trespass notices only to homeless people sleeping in parks or on sidewalks, Gorsuch wrote that might suggest a viable argument for “selective prosecution,” but that claim was not made in the case.
In a strongly worded dissent, Justice Sonia Sotomayor called sleep a “biological necessity, not a crime” and said the city’s laws punish people with no access to shelter for the status of being homeless.
“That is unconscionable and unconstitutional,” she wrote, joined by Justices Elena Kagan and Ketanji Brown Jackson.
“It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles,” Sotomayor wrote. “Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.”
The court’s opinion was released just over two months after it heard oral arguments.
The case has been touted as one of the most significant involving homelessness to come before the court in decades and has been closely watched by state and city officials across the country grappling with how to address a growing homeless crisis.
It arose when several homeless people filed suit in federal court against Grants Pass in 2018, alleging the city’s aggressive enforcement of its public camping and sleeping ordinances were intended to banish them from town. Police repeatedly told them to “move along” and then issued tickets that carried fines starting at $295, park exclusions and then criminal trespass charges. The ordinances barred people from using blankets, pillows or cardboard boxes for protection from the elements while sleeping within the city limits.
A federal district judge in Medford blocked the city from enforcing its public camping laws during the day without a 24-hour notice and stopped it from enforcing the rules at night.
Then a sharply divided 9th U.S. Circuit Court of Appeals upheld the district judge’s ruling, finding the Grants Pass set of ordinances criminalized the status of being homeless in violation of the Eighth Amendment’s ban on cruel and unusual punishment, and the city petitioned for the Supreme Court’s review.
In a statement, the city of Grants Pass said the court’s ruling “will help guide our next steps regarding unhoused members of our community” but added: “While it is too soon to know specifically what steps we may take, we are committed to assisting residents struggling to find stable housing, and we will continue working to make Grants Pass a safe and welcoming community for all”
The National Homelessness Law Center said the ruling will “make homelessness worse in Grants Pass and nationwide” and called on the Biden administration and Congress to invest at least $356 billion in the next year “to ensure that everybody has safe, decent housing that they can afford.”
“Cities are now even more empowered to neglect proven housing-based solutions and to arrest or fine those with no choice but to sleep outdoors. While we are disappointed, we are not surprised that this Supreme Court ruled against the interests of our poorest neighbors,” the center said in a statement.
In April during more than two hours of lively argument, conservative justices questioned why federal judges should weigh into municipal policy decisions. They wondered why those affected by camping ordinances in Grants Pass can’t raise the defense in state courts that their individual circumstances have left them with nowhere else to sleep once they’re fined or charged with a crime, instead of seeking a preemptive broad ban on the city’s ordinances.
The liberal justices, in turn, hammered the city’s lawyer Theane D. Evangelis, who claimed that homelessness isn’t a status, and that the city wasn’t punishing people based on their status.
During the arguments, Kagan called sleeping a human necessity, adding, “It’s sort of like breathing.” She said she found the city’s stance “quite striking” and “off” track and that the Eighth Amendment is clear that it protects punishing people based on their status versus their conduct.
The 9th Circuit’s rulings in the Grants case and a prior case in Boise rested on a constitutional principle from the 1962 U.S. Supreme Court decision in Robinson v. California, which found that the Eighth Amendment prohibits the government from punishing people based on their “condition or status.” In that case, a man could not be punished for being addicted to drugs, only for illegally using drugs.
Gorsuch, in the majority opinion, said no one asked the Supreme Court to reconsider Robinson. The majority found that Grants Pass’ public camping ordinances don’t criminalize status but forbid actions like occupying a campsite on public property “for the purpose of maintaining a temporary place to live.”
“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,” Gorsuch wrote.
The majority wrote that states are free to add further protections for homeless pepole, citing Oregon’s law adopted in 2021 that allows for “objectively reasonable” time, place and manner limits on sitting, lying or sleeping outside. The 9th Circuit’s ruling in the Boise case, which restricted anti-camping ordinances if cities don’t have enough shelter beds for the homeless, was based on “back-of-the-envelope arithmetic,” that was “all but impossible to administer in practice,” Gorsuch wrote.
“Homelessness is complex. Its causes are many. So may be the public policy responses required to address it,” the majority opinion said. “At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not.”
Sotomayor countered in the dissenting opinion that many local governments have made criminalization a “frontline response” to homelessness, which can cause a “destabilizing cascade of harm.”
“For people with nowhere else to go, fines and jail time do not deter behavior, reduce homelessness, or increase public safety,” she wrote.
She argued that the Eighth Amendment is not limited to outlawing “medieval tortures” and that the majority has misunderstood the findings in the Robinson case.
“Grants Pass’s Ordinances criminalize being homeless,” Sotomayor wrote. “The majority protests that the Ordinances ‘do not criminalize mere status.’...Saying so does not make it so. Every shred of evidence points the other way. The Ordinances’ purpose, text, and enforcement confirm that they target status, not conduct. For someone with no available shelter, the only way to comply with the Ordinances is to leave Grants Pass altogether.”
The dissent went on to criticize the majority’s opinion: “With no discussion about what it means to criminalize ‘status’ or ‘conduct,’ the majority’s analysis consists of a few sentences repeating its conclusion again and again in hopes that it will become true.”
During argument before the Supreme Court, the justices appeared to struggle with where to draw the distinction between a person’s status and conduct in trying to determine what’s “cruel and unusual punishment” under the Eighth Amendment.
Deputy U.S. Solicitor General Edwin S. Kneedler said the Grants Pass laws went too far, calling its laws the “equivalent of banishment,” for people who have nowhere to sleep.
But he urged the court to throw out the “involuntary homeless” class certification in the case and instead require cities and law enforcement officers to make individual assessments of whether people actually have nowhere else to stay before issuing any citations, fines, park exclusions or trespass arrests.
Advocates for the homeless who have anxiously awaited the ruling said no opinion from the nation’s high court will end homelessness. What’s needed is housing and supportive services, they’ve argued.
There are more than 256,000 people living unsheltered in the United States on any given night, and a shortage of 7.3 million units of affordable housing, according to Ann Oliva, chief executive officer of the National Alliance to End Homelessness.
In 2022, about 17,000 people became homeless each week for the first time over the course of the year, according to the U.S. Department of Housing and Urban Development.
Oliva called for a need to fund safe and affordable housing and wrap-around services in the long term, and in the short-term, support for housing outreach, housing subsidies, safe parking sites with behavioral support and other services and low-barrier shelters.
William Knight, a former public defender in Arizona who now works as decriminalization director for the National Homelessness Law Center, said the 9th Circuit court ruling in the Grants Pass case and Boise’s Martin case never provided “solutions to homelessness” but instead were “emergency backstops” for when cities like Grants Pass “were making things worse, much worse, by criminalizing homelessness.”
Earlier this month, he said that however the Supreme Court ruled in the Grants Pass case, “it’s not going to improve the homelessness epidemic that we’re facing in this country, because housing solves homelessness, and that’s it.”
Helen Cruz, who was formerly homeless in Grants Pass for about six years and had racked up more than $2,000 in fines for sleeping in local parks, now lives at a church near a park and supports others who live on the city’s streets. She said people locally have “been on edge,” awaiting the Supreme Court ruling.
“What people don’t seem to understand is they don’t want to be in the parks,” she said.
People living in tents or sleeping in parks “want a place to live, you know, and we all have that right to have a place to live,” she said.
Attorneys for the League of Oregon Cities, the city of Portland and Washington state and Idaho city associations argued in a joint brief before the Supreme Court that the 9th Circuit made an “extraordinary incursion into local autonomy” and turned judges “into townhall chancellors.”
The city of Portland is set to start enforcing its scaled-back homeless camping ban on Monday, nearly two months after the City Council unanimously approved the new ordinance to replace a more stringent measure tied up in court. The new rules require people who are offered shelter to accept it or face penalties, and it directs homeless individuals that they must keep their camping area tidy if they can’t access shelter. The ordinance scales back the potential of a 30-day stint behind bars for violators to just seven days and emphasizes a preference to offer offenders diversion.
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