With all the noise and chaos following the presidential debate and the final slew of rulings by the U.S. Supreme Court at the end of its current term, one ruling that will have immediate effects in Sedona and the Verde Valley may have been overlooked.

In 2018, the U.S. Court of Appeals for the Ninth Circuit ruled in Martin v. City of Boise that ordinances prohibiting all camping within a city when there’s no other available location for homeless persons to sleep was unconstitutional, and specifically that laws regulating camping on public property violated the “cruel and unusual punishments” clause of the Eighth Amendment.

SCOTUS declined to hear a later appeal from the city of Boise, letting the ruling stand, but only in the Ninth Circuit’s jurisdiction: Arizona, Alaska, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Mariana Islands.

U.S. Supreme Court 2018 ruling in Martin v. City of Boise

The Ninth Circuit ruled in Martin that certain inherent human activities — standing, sitting, sleeping and eating — cannot be criminalized. Ergo, neither someone who gets tired and curls up on a park bench nor someone who sleeps on public land can be breaking the law.

In its Martin ruling, the court argued that law enforcement have no more right to tell a homeless person to move from a park bench than they do to give the same order to a person who takes a nap in a city park on a summer day.

Setting up a full campsite with a tent, firepit and clothesline, however, was considered beyond the pale of, and could be prohibited by specifically-tailored camping bans regulating the “time, place and manner” rules that governments are generally permitted to enforce and penalize. Most jurisdictions lacked narrowly-defined statutes to delineate the difference between passing out and taking a nap in a public space and a full-fledged campsite and, under Martin, were reluctant to revisit their statutes lest they cross the line between a legal ban permitted under Martin or “time, place and manner” and something that could face a judge’s injunction for being unconstitutional.

“In regards to that, many cities stopped enforcing their camping in public places, and some decided to only enforce it if they had available housing,” Sedona City Attorney Kurt Christianson told the Sedona City Council on Sept. 27, 2022.

However, SCOTUS did agree to hear a new case on the subject this term— City of Grants Pass, Ore. v. Johnson — which was argued before the court on April 22.

Oral Argument in City of Grants Pass, Ore. v. Johnson

Boise is a city of 236,634 people, while Grants Pass has only 39,079. A camping fine in Boise was only $75, while one in Grants Pass was $295 for a first offense, $537.60 if left unpaid, and after two citations, violators faced a ban from municipal property and trespassing charges with 30 days in jail and an additional $1,250 fine.

Lawyers for the homeless defendant, Gloria Johnson, argued that under the 1962 case Robinson v. California — which ruled that merely being a drug addict alone was not a crime and that only drug use, possession or sale could be penalized — the government could not criminalize a person’s status — i.e., being a homeless person.

On June 28, SCOTUS reversed and remanded the Grants Pass case in a 6-3 opinion delivered by Justice Neil Gorsuch, holding that camping bans on public property do not violate the Eighth Amendment.

Justice Clarence Thomas wrote a concurrence in full while Justice Sonya Sotomayor wrote a dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson.

U.S. Supreme Court 2024 ruling in City of Grants Pass, Ore. v. Johnson

Gorsuch wrote that public camping laws do not criminalize status: “It makes no difference whether the charged defendant is currently a person experiencing homelessness, a backpacker on vacation or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.”

“Homelessness is complex,” Gorsich concluded. “Its causes are many. So may be the public policy responses required to address it. The question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. A handful of federal judges cannot begin to ‘match’ the collective wisdom the American people possess in deciding ‘how best to handle’ a pressing social question like homelessness. The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this nation’s homelessness policy.”

In her dissent, Sotomayor wrote that 600,000 people experienced homelessness in 2023, but that “incarceration and warrants from unpaid fines can … result in the loss of employment, benefits and housing options” and that “fines and jail time do not deter behavior, reduce homelessness or increase public safety,” with many who are told to move along by police simply moving a few blocks away. “This is a big game of whack-a-mole,” she wrote.

“It is cruel and unusual to apply any penalty ‘selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer,’” Sotomayor wrote. “I remain hopeful that our society will come together ‘to address the complexities of the homelessness challenge facing the most vulnerable among us,’” adding, “It is quite possible, indeed likely, that these and similar ordinances will face more days in court.”

Christopher Fox Graham

Managing Editor