Estimated read time: 4-5 minutes
WASHINGTON — The U.S. Supreme Court heard arguments in an appeal of a lawsuit on Monday to determine how far a local government can go in its enforcement of camping bans or policing of homelessness.
The lawsuit, titled City of Grants Pass, Oregon v. Gloria Johnson, was filed by a group of people experiencing homelessness against the southern Oregon city, which passed an ordinance against outdoor sleeping. The local ordinance barred unsheltered people from using blankets, pillows or cardboard boxes while sleeping outside in public even in wet or cold-weather conditions.
The enforcement of such bans can include jailing or fining those breaking the ordinance. At the time, officials were explicit in their hopes that people would go elsewhere. Violators could be fined $295, and repeat offenders could be criminally prosecuted for trespass, punishable by up to 30 days in jail.
Last year, the 9th Circuit Court of Appeals ruled that criminally punishing unsheltered people for doing something they cannot avoid when no shelter options are available violates the Eighth Amendment.
"As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter," the 9th Circuit Court of Appeals wrote.
The 9th Circuit Court of Appeals decision was appealed by Grants Pass to the Supreme Court, which is expected to make a ruling on the case by the end of June.
"The 9th Circuit's arrogation of quintessential policymaking authority over public health and safety has struck a blow not only to the principle of democratic governance but also to the practical ability of cities to address the growth of public encampments," stated the petition to the court.
In the petition, Grants Pass argued that the Eighth Amendment applies to punishments following conviction and not laws that establish what is a crime in the first place. Fines and jail time are not inherently cruel punishments — they are constitutional, regardless of the crime or circumstances of the person being punished, the city added.
The case's outcome will have a national impact on homeless camping laws and perimeters on enforcement, prompting advocates across the nation to file briefs on behalf of the homeless. It will not have much impact in Oregon, though, which passed a state law in 2021 that prevents cities from punishing people sleeping outside on public property
An amicus brief was filed by the national ACLU and signed on by the ACLU of Utah and affiliates in 17 states earlier this month, arguing that "the original intent and meaning of the Eighth Amendment squarely protects unhoused people from the cruel and unusual punishment of being arrested or fined for simply existing."
In Monday's hearing, the question arose of whether enforcement of the ordinance constituted the criminalization of a status.
Kelsi Corkran, the lawyer arguing for the plaintiffs, agreed, telling the justices that the ordinances "make people with the status (of homelessness) endlessly and unavoidably punishable if they don't leave Grants Pass. Indeed, all the ordinances do is turn the city's homelessness problem into someone else's problem by forcing its homeless residents into other jurisdictions."
That point was addressed by liberal Justice Sonya Sotomayer, who asked Theane Evangelis, a lawyer for Grants Pass, "Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this? Where are they supposed to sleep? Are they supposed to kill themselves, not sleeping?"
"This is a complicated policy question," Evangelis responded.
Proponents of the ordinance or similar enforcement argue that such policies are necessary for public safety.
"We think that it is harmful for people to be living in public spaces on streets and in parks, (with) whatever bedding materials. When humans are living in those conditions, we think that that's not compassionate and that there's no dignity in that," said Evangelis.
"Neither is providing them with nothing," countered Sotomayer.
Approximately 653,100 people were experiencing homelessness on a single night in 2023 — a 12% increase (or about 70,650 more people) from 2022, according to U.S. government estimates. As the nation grapples with an affordable housing and housing stock crisis, options for rapid rehousing can be limited. A Pew Research analysis found that homelessness is high in urban areas where rents are high, and homelessness rises when rents rise.
On the other side of the bench, some conservative justices questioned whether the ordinance violated the Eight Amendment. Those justices suggested other legal recourse or a necessity defense, as mentioned by the lawyers for Grants Pass.
"If a state has a traditional 'necessity' defense," asked Justice Brett Kavanaugh, "won't that take care of most of the concerns, if not all, and therefore avoid the need for having to constitutionalize" the issue?
A ruling by the Supreme Court is expected by the end of June.
