Since the 2018 ruling Martin v. Boise, the law regarding homelessness and city ordinances prohibiting camping on public lands has been unsettled.
The 9th Circuit Court of Appeals ruled in Boise that governments cannot criminalize normal human activities, which includes sleeping in public spaces under the 8th Amendment’s prohibition of “cruel and unusual punishment.”
Specifically, the decision determined that towns and cities cannot enforce anti-camping ordinances if they do not have enough homeless shelter beds available for their homeless population, but it also did not mean that a city could not enforce any restrictions on camping on public property. Instead, it left the definition nebulous and did not decide whether it would be legal to limit on which public properties or during what hours camping or sleeping could be banned.
Boise only applied to the western states in the 9th Circuit’s district, which includes Arizona. The U.S. Supreme Court declined to take up an appeal, letting the circuit ruling stand.
Last week, however, the Supreme Court took up a similar 9th Circuit case involving Grants Pass, Ore., which has a homeless population about the same size as that in Boise, despite the city being six times smaller and imposing stiffer penalties for violations of its anti-camping ordinance.
Audio of Oral Argument in City of Grants Pass, Oregon v. Johnson
The town impose a $295 fine for camping in public, increasing to over $500 if unpaid. After two citations, police ban individuals from city property, resulting in a possible conviction for trespassing, which can lead to 30 days in jail and another $1,250 fine.
Based on oral arguments it’s not entirely clear what the higher court may do. According to Amy Howe, writing for SCOTUSblog, the Supreme Court justices were divided on the merits and both the city and the challengers — three homeless residents — had no easy solution.
Grants Pass fines people who are homeless if they use blankets, pillows or cardboard boxes while sleeping within city limits. Lawyers for the city argued the ban applies to everyone, while the challengers argued city ordinances make it a crime to be homeless, violating the 8th Amendment.
Transcript of Oral Argument in City of Grants Pass, Oregon v. Johnson
City-of-Grants-Pass-Oregon-v-JohnsonJustice Brett Kavanaugh asked how reversing Boise and allowing bans would address homelessness, especially if a city still lacked shelter beds, a question to which the city’s attorney didn’t have an answer.
The challengers’ attorney argued that Grants Pass defines a “campsite” as anywhere a homeless person is, meaning they face fines and jail time regardless of where they are on public property.
Key to the challengers’ argument was the 1962 Robinson v. California ruling, which held that California violated the 8th Amendment by making it a crime just to be a drug addict, even if that person had never used drugs in the state. Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson seemed separately swayed, Howe wrote.
Jackson also noted that Oregon state law mirrors the Boise ruling, prohibiting Grants Pass from banning camping if state law is enforced in the city.
But status and conduct are different, and Chief Justice John Roberts noted that homelessness is not a status, but a condition that can be remedied by finding housing. Justice Samuel Alito observed that while status and conduct differ when it comes to homelessness, conduct and status are linked — finding a shelter bed for a night doesn’t change one’s status as a homeless person.
The justices asked about how affirming or overturning Boise would apply to stealing food, urinating or defecating in public; if Grants Pass could ban camping if a nearby town had a shelter; how police officers implement the ban and take homeless people to that shelter; and what would happen if a homeless person had a pet, but the shelter didn’t allow pets. Simply banning homeless people from camping and jailing or fining them doesn’t take any homeless people off the street or provide a pathway toward permanent housing.
Unlike other cases, in which the oral arguments shed light on how the court may ultimately rule, it’s not clear in this situation how the justices will ultimately decide the case. Without more homeless shelters, transitional and permanent housing the case will only address the symptoms of homelessness, not the causes or possible solutions.
The ruling will likely be issued near the end of the judicial term this summer.
