Supreme Court Justices on April 22 heard oral arguments in a case expected to have a profound impact on how local governments address homeless encampments—particularly in California and the West, where the crisis has for years been in a state of escalating emergency.
According to the Department of Housing and Urban Development, California’s homeless population swelled to 181,399 in 2023, 68 percent of whom are unsheltered.
Nearly half of all unsheltered Americans live in California.
At issue in Grants Pass, Oregon v. Gloria Johnson is whether laws regulating public dwelling or camping violate the Eighth Amendment’s ban on “cruel and unusual” punishment.
The case arrives before the highest court after a series of lawsuits brought against municipalities by homeless plaintiffs made a constitutional issue of the delicate balance governments face—between protecting the rights of homeless people, and protecting public safety and health.
Local governments are hoping a decision will clarify whether they can break up encampments or otherwise enforce laws regulating public spaces when they don’t have enough shelter beds for their entire homeless population.
Grants Pass, a tiny city in Oregon, is seeking to overturn a Ninth Circuit Court of Appeals ruling that struck down its anti-camping ordinances, preventing local law enforcement from citing people for violations.
That decision followed a 2018 Ninth Circuit ruling, in Robert Martin v. City of Boise, that found penalizing people for sitting or sleeping outside when they don’t have access to shelter violated the Eighth Amendment.
Homeless residents in Grants Pass challenged the city’s ordinances, and the lower court upheld the ruling. Now, Grants Pass is asking the Supreme Court to overturn it.
Oral Arguments
Arguing for the petitioners, attorney Theane Evangelis told the Justices that the Ninth Circuit ruling has tied cities’ hands by constitutionalizing policy debate over how to handle growing encampments.“This court should reverse and end the Ninth Circuit’s failed experiment, which has fueled the spread of encampments while harming those it purports to protect,” Ms Evangelis said.
Justice Sonya Sotomayor pushed back, suggesting a Grants Pass ordinance that prohibits people from covering themselves with a blanket while sleeping outside was a de facto criminalization of homeless people.
“If a stargazer wants to take a blanket or a sleeping bag out at night to watch the stars and falls asleep, you don’t arrest them. You don’t arrest babies who have blankets over them. You don’t arrest people who are sleeping on the beach, as I tend to do if I’ve been there a while. You only arrest people who don’t have a second home. Is that correct?” Justice Sotomayor asked.
Ms. Evangelis responded that the laws are generally applicable to everyone, and there is nothing in the law criminalizing homelessness.
Kelsi B. Corkran, an attorney for the respondents, argued the ordinances unjustly criminalize homeless people for activities non-homeless people are permitted, making it impossible to live in the city without facing endless fines and jail time.
The city, she said, is left with “an abundance” of tools to address homelessness, like restricting when and where homeless people sleep, banning tents and clearing encampments, enforcing sleeping bans when people decline shelter, or enforcing existing laws against a whole host of public behaviors and activities.
This appears less clear in practice, as described in amicus curiae by frustrated municipalities who say their hands have been tied from enforcing most such laws, as a result of ambiguities in the two cases.
Status versus Conduct
Much of the two-plus-hour discussion Monday centered on efforts to delineate status and conduct when it comes to homelessness.In 1962, the Supreme Court ruled in Robinson v. California that it was unconstitutional for California to punish an individual for the status of being addicted to narcotics. Challengers in the current case argue that anti-camping ordinances similarly punish people for the involuntary status of being homeless.
Justice Elena Kagan compared criminalizing sleeping in public to criminalizing breathing in public, while Justice Jackson said, “it seems both cruel and unusual to punish people for acts that constitute basic human needs.”
But where Justice Kagan contended homelessness is a status, “the status of not having a home,” other justices took issue with that interpretation.
Justice Clarence Thomas noted the underlying law in Robinson penalized both the use of drugs and being addicted to them, and asked, “is there a crime here for being homeless?” to which Ms. Evangelis replied there was not.
Chief Justice Roberts, meanwhile, pointed to the fluidity of such a status, asking whether a person would be considered homeless if they found shelter after being homeless for a week.
Ms. Evangelis argued challengers were attempting to collapse the difference between status and conduct, where they had been clearly delineated in Robinson.
Many municipalities have noted that, since Martin v. Boise, they have been prohibited from clearing encampments when they don’t have “adequate” shelter to accommodate their whole population of homeless people. Unresolved questions – about what constitutes “adequate,” and whether people can be voluntarily homeless – have left them in a maddening limbo.
Justices Barrett and Gorsuch prodded the idea of sleeping outside as an involuntary human need, asking if other activities, like building a fire, cooking outdoors, stealing food or urinating in public would be subject to the same constitutionality.
“The Eighth Amendment really doesn’t give us any answers to what cities can and can’t prohibit. It’s really administratively impossible for cities on the ground, as well as for courts, to administer,” Ms. Evangelis said.
Justice Kavanaugh and others suggested that, given those “line-drawing problems,” if a state already allows claims that an illegal action is justified due to a threat of harm– then that should suffice, without the need for federal overreach into local municipal affairs.
“Before constitutionalizing an area or extending a constitutional precedent … we usually think about whether state law, local law already… achieves those purposes so that the federal courts aren’t micromanaging homeless policy,” said Mr. Kavanaugh.
Justice Jackson noted Oregon had already adopted a law based on the Ninth Circuit’s ruling in Martin, which the city is now subject to, and questioned whether the high court should be considering the Eighth Amendment question at all.
While justices on the liberal side of the court, which has a conservative 6-3 supermajority, appeared more sympathetic to homeless advocates’ arguments, and conservative justices appeared sympathetic to the plight of municipalities, there was nuanced overlap, and a shared skepticism for further entangling the court in questions better determined at the local level.
This could, observers say, point to a middle ground, in which the court frees cities to enforce their laws, while enshrining protection against the criminalization of involuntary homelessness.
What Does This Mean for Cities?
Ninth Circuit rulings that the Eighth Amendment prohibits cities from punishing the homeless for sleeping on public property have been interpreted more broadly in practice, effectively banning some jurisdictions from regulating encampments in the absence of “adequate” shelter beds for their entire homeless population.Some, like Orange County, have found their way around this by obtaining a District Court’s consent decree to sidestep what it characterizes as “the unworkable Boise and Grants Pass framework.”
Others make new laws. San Diego last year came up with a new “Unsafe Camping” ordinance, formulated to comply with both Martin and the city’s own prior legal settlements.
But court orders have prevented several cities in California– including Sacramento and San Francisco, from enforcing existing codes to clear encampments.
For example, a 2022 injunction filed by the San Francisco Homeless Coalition is preventing the city from enforcing related ordinances, with exceptions to clean or clear encampments if people are offered and refuse housing.
In Los Angeles, there is a similar status quo, in which the city conducts sanitation sweeps without clearing encampments, or clears encampments while offering housing– as in the mayor’s Inside Safe program.
In an amicus brief, the city tried to walk the line between not criminalizing homelessness but maintaining an ability to regulate public spaces. But leaders are clearly infuriated by what they see as the Ninth Circuit’s injecting “an insupportable lack of clarity into the process of regulating public spaces in a constitutional manner,” and infringing on their ability to regulate public health and safety.
Los Angeles once had a citywide ordinance banning dwelling in the public right of way. It was invalidated 18 years ago by the Ninth Circuit, for violating the Eighth Amendment. The city settled the case, and says a negotiated enforcement plan has since effectively legalized public dwelling during overnight hours.
“The city has been grappling with the ramifications of that settlement (i.e., the strain of having a large population of persons experiencing homelessness dwelling on shared public spaces) for 18 years,” it wrote in its brief.
Then “sweeping, ambiguous and ill-defined language” in Martin left public officials and lower courts struggling to comply, Los Angeles claims.
Orange County put it this way: “The Ninth Circuit’s opinion in Boise is ill-considered, ambiguous, and, speaking from experience, entirely unworkable.”
A footnote in the Martin v. Boise decision has led to chaos and “countless” disputes between County attorneys and homeless advocates as to what constitutes “adequate shelter,” Orange County wrote.
Grants Pass took that decision further, prohibiting local governments from enforcing anti-camping laws unless they can demonstrate the availability of a shelter bed for every homeless individual within their borders, and failing to consider some may be voluntarily homeless due to mental illness or otherwise service resistant.
Los Angeles says it still doesn’t know whether it can just offer or require people to accept shelter, or clear the public right of way as shelter becomes available, or whether there is a constitutional requirement that there first be enough shelter for everyone.
Orange County credits the consent decree, authorizing it to work around the Boise and Grants Pass framework, for making it the only county in California to see a reduction in homelessness in 2022.
How do governments determine in real time if there are enough shelter beds for current homeless populations? What do they do if people are shelter resistant, suffering from mental illness that prevents them from accepting multiple offers? Is it the state, city or county that determines the number of beds that will allow sheriffs to enforce the law?
These are just some of the questions municipalities are grappling with.
Law enforcement agencies, meanwhile, argue the effect has been disastrous, leading to a widespread proliferation of homeless encampments across the Ninth Circuit’s Western states, which in turn has driven up police call volumes, crime rates and drug use, while decreasing livability in many cities.
Homeless Veterans
Sunita Patel, Founding Faculty Director of UCLA’s Veterans Law Clinic, argues reversal of Grants Pass would criminalize thousands of veterans merely for being homeless.Permitting localities to “punish survival – sleeping outside with adequate coverings”– would violate decades of precedent prohibiting punishment of status, and “eviscerate the minimal protections unhoused veterans have against degrading treatment while sleeping outside and in public spaces,” she wrote in an amicus brief in support of Johnson.
In a conversation with The Epoch Times, Ms. Patel said the issue before the court is in fact quite narrow, and localities are already permitted to enforce their ordinances. What is lacking, she said, is political will.
“The court’s job here is to say, under the Eighth Amendment, it is cruel and usual punishment for someone to be fined or cited or jailed if they are sleeping [outside] – that I think is a basic human principle we should all agree with, right?”
If every jurisdiction had a “banishment ordinance,” Ms. Patel said, where would people go?
“That’s the hard question, and Grants Pass and other jurisdictions look at these laws as ways to incentivize folks to take housing. Whether that’s actually true or not, I can’t say. But … we do know, especially if we think about the veteran context, that if you have the housing, you make it available, and have a range of options, people do take it.”
Deon Joseph, a police officer in L.A. County who has worked in the Skid Row area for more than two decades, said he hoped a decision will help the city get back to a balance that’s both humane and has some level of accountability for the homeless population.
“There’s not enough shelters. We recognize that,” Mr. Joseph told The Epoch Times. He said going back to a policy in which tents are allowed to be up at night, but are packed away from 6 a.m. to 9 p.m. daily, would allow police to maintain some order.
“We saw that actually worked, that had an impact, and it also reduced homelessness, because more people chose programs than the streets” he said.
Such was more humane than letting camps proliferate “when you know people are overdosing, you know women are being human trafficked, you know people are dying and suffering. And the quality of life is so poor,” he said.
Mr. Joseph said he doesn’t want to criminalize someone for being homeless. “But I cannot ignore criminal fallout that exists when we allow encampments to thrive.”
Lawmakers appear optimistic they’ll get clarity and some relief from the court’s forthcoming decision.
But even if cities are given more latitude to enforce their own laws, observers say it won’t solve the untreated addiction and mental illness crises that are fueling homelessness. Nor will it force the state to reckon with failed policies and an insistence on million-dollar condos and government-sponsored meth pipes as the best solution.
Some are preparing accordingly.
Shortly after the Supreme Court hearing, San Francisco Supervisor Matt Dorsey submitted a legislative drafting request to his City Attorney’s Office, proposing a pilot program that would establish “Right to Recovery” enforcement priority zones. Such wouldn’t enhance criminal penalties for drug possession, he said, but designate certain areas, near sites where people in recovery are at elevated risk of relapse and overdose, as priorities for enforcement.
The court is expected to issue an opinion in June.
