Washington — The Supreme Court on Monday will weigh arguments in a case involving the homeless and bans on where they may sleep, the most significant one on the issue in decades.
The dispute involves whether laws that punish homeless people with civil citations for camping on public property are outside the bounds of the Constitution. Cities have been searching for ways to address homeless encampments that they say threaten public health and safety, as the nation confronts a spike in homelessness driven in part by high housing costs and the end of COVID aid programs.
A decision will shed light on how far city and state officials can go to address homeless encampments and is likely to reach beyond the borders of the Oregon city at the center of the dispute.
There were 256,000 unsheltered people in the U.S. on a given night in 2023, according to a December report from the Department of Housing and Urban Development. Homelessness rose 12% from 2022 to 2023, its highest level since tracking began in 2007, the report found, as housing prices soared and pandemic-era assistance programs expired.
The struggle for survival in Grants Pass
Grants Pass, a bustling city nestled in the heart of southern Oregon, is home to nearly 40,000 residents. However, a decade ago, the city took a firm stance by intensifying the enforcement of a set of regulations that prohibit camping on public grounds or within city parks. According to the ordinances, a campsite is defined as "any location where bedding, sleeping bags, or any other materials for bedding purposes, as well as stoves or fires, are set up."
Individuals found in violation of these rules face fines starting at $295, with repeat offenders possibly facing a 30-day ban from city parks. Moreover, those who defy the ban and continue camping in the parks could be charged with criminal trespass, a misdemeanor punishable by up to 30 days in jail and a fine of $1,250.
In court documents, the city defended its actions by claiming that the ordinances were enforced "with restraint," resulting in over 500 citations being issued between 2013 and 2018. A policy from the Grants Pass Department of Public Safety explicitly states that "homelessness is not a crime," and that the department does not resort to using homelessness as the sole reason for detention or law enforcement actions.
In a recent case, three individuals experiencing homelessness in Grants Pass took legal action against the city on behalf of the homeless community. They claimed that the city's public sleeping and camping laws were unconstitutional and amounted to cruel and unusual punishment, violating the Eighth Amendment.
Following a ruling by a federal district court in Oregon, Grants Pass was prohibited from enforcing the public-camping regulations during the day without 24-hour notice and entirely at night for the approximately 600 homeless individuals in the city. A divided panel of judges from the U.S. Court of Appeals for the 9th Circuit upheld the district court's decision regarding the public-camping ordinances.
One of the judges on the panel, Judge Roslyn Silver, stated, "The City of Grants Pass cannot, in accordance with the Eighth Amendment, penalize homeless individuals for simply sleeping outdoors with basic protection from the elements, or for sleeping in their vehicles at night when there are no other options available in the city." The full 9th Circuit rejected a rehearing of the case, despite opposition from several judges.
Judge Diarmuid O'Scannlain, along with other judges, criticized a previous ruling in a similar case involving a law in Boise that prohibited public sleeping. O'Scannlain argued that such decisions were hindering local communities and taking away decision-making power that should be left to the democratic process.
In that case, the 9th Circuit ruled that if the number of homeless people in a city is greater than the number of available beds in shelters, a city cannot punish homeless people with criminal citations for sleeping in public.
Grants Pass officials urged the Supreme Court to reverse the 9th Circuit's decision, arguing that "modest" fines and short jail terms for camping on public property are not cruel and unusual punishments under the Eighth Amendment.
They said that allowing it to stand prevents governments from "proactively addressing the serious social problems associated with the homelessness crisis," and threatens many other criminal prohibitions.
"The homelessness crisis is a significant challenge for communities large and small throughout the nation. But '[n]ot every challenge we face is constitutional in character,'" lawyers for the city wrote in a filing. "And the solution is not to stretch the Eighth Amendment beyond its limits and place the federal courts in charge of this pressing social problem."
But Ed Johnson, director of litigation at the Oregon Law Center, who brought the suit on behalf of the homeless people in Grants Pass, said the word "camping" in the city's ordinances is misleading.
Speaking out against the city's laws, Johnson argued that the Eighth Amendment prohibits governments from penalizing individuals without homes.
"The core issue at hand, currently under review by the Supreme Court, is whether a city can criminalize outdoor living for those without alternatives," Johnson emphasized. "We firmly believe that this is not permissible."
Johnson and his legal team contended in their court documents that the city's regulations unfairly target homeless individuals who simply seek shelter or rest "in any public space, even with just a blanket for warmth," and asserted that these laws effectively make it "physically impossible" for homeless individuals without access to shelter to remain in Grants Pass without facing legal repercussions.
"The city's goal was to make its homeless residents so 'uncomfortable' that they would move to other jurisdictions," the lawyers wrote in a filing, referencing a comment by a city councilor, who said in 2013 that the point of Grants Pass' policies should be "to make it uncomfortable enough for [homeless people] in our city so they will want to move on down the road."
Johnson said Grants Pass is an outlier for the broad scope of its public camping ban, and he said at least four states have similar sweeping laws that prohibit homeless people from sleeping in public spaces. Florida Gov. Ron DeSantis signed a bill into law last month that bans homeless people from sleeping on sidewalks, in parks and other public places.
Efforts to address a homelessness crisis
The dispute has attracted input from a range of advocacy and law enforcement organizations, cities, states, members of Congress and the Biden administration.
The Justice Department told the Supreme Court in a filing that the 9th Circuit was right to find that the Eighth Amendment prohibits a local government from effectively criminalizing homelessness by prohibiting individuals who lack access to shelter from residing in that area. But it said applying that principle to a particular person requires a look at their circumstances, and the lower court was wrong to issue the broad injunctive relief that it did.
Those broad injunctions issued by U.S. district courts "may limit cities' ability to respond appropriately and humanely to encampments and other legitimate public health and safety concerns," Solicitor General Elizabeth Prelogar, who represents the government before the Supreme Court, said.
She urged the Supreme Court to wipe away the 9th Circuit's decision and send the case back for further proceedings.
A group of 24 state attorneys general said in a friend-of-the-court brief there has been an increase in public encampments in large and small cities, creating public health and safety issues, and said upholding the 9th Circuit's decision would impinge on state and local governments' ability to respond to homelessness.
But six Democrat-led states said the ordinances in Grants Pass criminalize homelessness and, if adopted more widely, "could render significant portions of the country off-limits for people who are homeless."
"Every human being needs to sleep, and a person who is involuntarily homeless by definition has nowhere to sleep lawfully other than on public property," they argued in a filing. "Punishing such a person for sleeping on public property is equivalent to punishing her simply for being involuntarily homeless — the very criminalization of status that this court has held the Eighth Amendment proscribes."
Several major cities have asked the Supreme Court to allow them to address public health and safety concerns that arise from homeless encampments.
In a recent development, the city of Phoenix and the League of Arizona Cities and Towns have emphasized the importance of municipalities having the authority to take action against individuals camping on public property when their actions pose a threat to public safety. This stance was conveyed in a document submitted to the Supreme Court.
Meanwhile, in San Francisco, a city grappling with a homelessness crisis, local leaders have expressed their concerns to the Supreme Court as well. They highlighted that the 9th Circuit's ruling has hindered the enforcement of six state and local laws that regulate where and when homeless individuals can sleep or set up tents on public property.
According to the city's legal representatives, this legal barrier has impeded the implementation of approved policies, prevented the enforcement of voter-supported initiatives, and hindered the maintenance of public spaces. The situation has resulted in challenges for both the housed and unhoused populations, leading to blocked sidewalks, unsafe encampments, and a reluctance among homeless individuals to access available services.
A decision on this matter is anticipated to be reached by the Supreme Court before the end of June.
