Justices Appear to Side With City Trying to Regulate Homeless Encampments (2024)

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Supreme Court Seems Poised to Uphold Local Bans on Homeless Encampments

In a lengthy and, at times, fiery argument that lasted almost two and a half hours, questioning from the justices reflected the complexity of the homelessness debate. They weighed the status of poverty and the civil rights of homeless people against the ability of cities to clear public spaces like parks and sidewalks to address concerns about health and safety. They wrestled with what lines could be drawn to regulate homelessness — and, crucially, who should make those rules.

The conservative majority appeared sympathetic to arguments by the city of Grants Pass, Ore., that homelessness is a complicated issue best handled by local lawmakers and communities, not judges. The liberal justices strongly resisted that notion.

Chief Justice John G. Roberts Jr. calmly cut to the central point that seemed to resonate with the conservative wing: “Why would you think that these nine people are the best people to judge and weigh those policy judgments?”

In impassioned questioning, the liberal justices pushed back sharply on the city’s argument that homelessness was not a status protected under the Eighth Amendment’s prohibition on cruel and unusual punishment.

“Could you criminalize the status of homelessness?” Justice Elena Kagan asked the city’s lawyer, Theane D. Evangelis.

“Well, I don’t think that homelessness is a status like drug addiction,” Ms. Evangelis responded.

“Homelessness is a status,” Justice Kagan replied. “It’s the status of not having a home.”

The issue of how far local governments can go to regulate homelessness has given rise to unusual alliances across the political spectrum, with some leaders of left-leaning cities and states joining with conservative groups to urge the justices to clarify the extent of their legal authority in clearing encampments that have proliferated across the West in recent years.

Many leaders of Western states and cities have contended that decisions by the U.S. Court of Appeals for the Ninth Circuit, which oversees nine Western states, have been interpreted in ways that have limited the flexibility of governments to tackle the problem.

The case stems from a series of local ordinances in Grants Pass, a town of about 40,000 in southern Oregon. City officials stepped up enforcement of local laws in 2013 after residents began to complain about people sleeping, urinating and defecating outside.

Three homeless residents of Grants Pass challenged those ordinances in 2018, arguing that the city had violated the Eighth Amendment.

Grants Pass contended that the Eighth Amendment was the wrong framework because it is typically aimed at punishments, not at laws. It added that a Supreme Court ruling striking down its ordinances would set a troubling precedent that would tie the hands of local governments around the country and fuel sprawling encampments.

The case is among the last to be argued this term, which means that it is unlikely to be decided before late June or perhaps in early July, since the Supreme Court now has a backlog of pending decisions in major cases.

As arguments were underway, about 100 demonstrators protested outside the court, chanting, “SCOTUS, now’s the time, homelessness is not a crime!” and holding signs that read “Housing Justice” and “Housing is a human right.”

Kelsi B. Corkran, the lawyer representing the homeless plaintiffs, asserted that the use of the Eighth Amendment in the case was appropriate and therefore an issue the court was suited to address. “I don’t think there’s any question that being poor is a status,” she said. “It’s a status that can change over time and at that point you wouldn’t be part of the class, but I don’t think it changes the fact that it is a status.”

In heated questioning with the lawyer for the city, Justice Kagan pointed to the city’s ordinances that allow the authorities to ticket people for sleeping with bedding in public, asking whether cities could outlaw other basic human needs like breathing.

“Sleeping is a biological necessity,” Justice Kagan said. “It’s sort of like breathing. I mean, you could say breathing is conduct, too. But, presumably, you would not think that it’s OK to criminalize breathing in public, and for a homeless person who has no place to go, sleeping in public is kind of like breathing in public.”

Justice Ketanji Brown Jackson made a similar analogy, asking whether a city could prohibit eating in public because of concerns about sanitation, trash and rodents. Most people would be fine, she said, because they could just eat at restaurants or somewhere indoors, but not everyone.

“Some people don’t have that option,” Justice Jackson said. “They have to eat in public, because they’re unhoused and they can’t afford to go to a restaurant.”

Ms. Evangelis said she did not think that such laws would violate the Eighth Amendment and, bringing the discussion back to Grants Pass and its ordinances, added that the city was arguing that states and local governments should drive policymaking.

“We think that it is harmful for people to be living in public spaces, on streets and in parks,” Ms. Evangelis said. “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.”

That elicited sharp commentary from Justice Sonia Sotomayor, who said: “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?”

Several conservative justices seemed skeptical of the practicalities of following the rule laid out by the lower appeals court. The appeals court had determined that a city could not penalize people for being involuntarily homeless if the city did not have enough shelter beds for its homeless population. The justices seemed particularly concerned with how to decide whether a city had enough shelter beds and who would be responsible for sorting out such complex issues day to day.

“I think one of the questions is, who takes care of it on the ground?” Justice Brett M. Kavanaugh asked a lawyer for the federal government, Edwin S. Kneedler. “Is it going to be federal judges? Or is it the local jurisdictions with — working with the nonprofits and religious organizations?”

The Biden administration had joined the case, siding with neither party, arguing that Grants Pass’s laws probably violated the Eighth Amendment but that the lower court erred by not requiring an examination into each homeless person’s circ*mstances.

Several justices wrestled with how to think of someone’s state of being versus their conduct.

The plaintiffs’ argument rests in part on a 1962 case, Robinson v. California, in which the Supreme Court held that laws imposing penalties on people for narcotics addiction violated the Eighth Amendment because they punished a state of being, not a specific action, like drug possession or sale. In a similar fashion, the plaintiffs contend, Grants Pass is punishing people for being involuntarily homeless, not for specific actions.

That argument held sway in a separate case, Martin v. Boise, in 2018. In that case, a panel of judges from the U.S. Court of Appeals for the Ninth Circuit ruled that Boise, Idaho, had violated the constitutional rights of homeless people by imposing criminal penalties for sleeping and camping outdoors, even though the city did not have enough shelter beds.

Ms. Evangelis argued that the appeals court’s approach had “proven unworkable.”

“Cities are struggling to apply arbitrary, shifting standards in the field,” she said, adding that the Supreme Court should “end the Ninth Circuit’s failed experiment, which has fueled the spread of encampments while harming those it purports to protect.”

Chief Justice Roberts grappled with what was the best tack, asking whether homelessness was truly a state of being in the same way that being addicted to drugs is.

“What is the analytic approach to deciding whether something’s a status or a situation of conduct?” he asked. “You can remove the homeless status in an instant if you move to a shelter or situations otherwise change. And, of course, it can be moved the other way as well if you’re kicked out of the shelter, whatever.”

Adam Liptak and Aishvarya Kavi contributed reporting. Kitty Bennett contributed research.

What’s next: A decision will most likely land in late June.

The case was among the last to be argued this term, meaning that it would almost certainly not be decided until late June, when the term typically ends.

But there is even more reason to think that the decision will come then, or perhaps in early July, as the Supreme Court is facing a formidable backlog of pending decisions in major cases. Among them are ones on the fate and scope of the prosecution of former President Donald J. Trump for plotting to subvert the 2020 election, access to abortion, the First Amendment rights of social media companies and the power of administrative agencies.

In an ordinary term, the case on homelessness would be one of a small handful of blockbusters. This year, it will be one of many that are set to land, one after another, in a few hectic weeks in early summer.

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Jesse Rabinowitz, the communications director for the National Homelessness Law Center, which helped bring the case against Grants Pass, worked to organize the rally and said hundreds of people had joined throughout the morning. “We can’t predict what the court’s going to do," he said. "But we know that every time a court has heard this case, they have agreed with us that punishing people for sleeping outside when there’s nowhere else to go is cruel and unusual.”

Their general rationale appeared to be these were policy questions best left to local officials, not constitutional questions for the courts.

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Serrano, who said she has been homeless herself, said, “That is why it’s important that we are here, because there are so many families just like mine, that don’t have the access to housing — despite the fact that they work many hours, despite the fact that they’re doing everything they can.”

Justice Kavanaugh has done volunteer work serving food to homeless people.

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This 2018 Idaho case set the stage for the one before the Supreme Court today.

That March, the police in Boise cited Robert Martin, who was homeless, for sleeping outside. Mr. Martin, along with five other homeless plaintiffs, sued the city. Their legal strategy, inspired by a case in Los Angeles that successfully challenged the city’s sweeps of Skid Row, home to one of the country’s largest homeless populations, centered on the Eighth Amendment.

Lawyers said Boise had violated the amendment’s prohibition against cruel and unusual punishment by clearing people from the streets with no place to go.

An appeals court, the U.S. Court of Appeals for the Ninth Circuit, which covers nine Western states, agreed, blocking law enforcement from citing people for sleeping outside if they had no access to alternative shelter. If no such option exists, the court held, the government cannot criminalize homeless people for sleeping on public property outdoors. The court found that these people were involuntarily homeless, meaning they had no other choice.

Mr. Martin, who now lives in a recreational vehicle in northern Idaho where he grew up, said the ruling by the court was empowering.

“Before, when we did get the tickets and everything, we didn’t feel as if we were fully part of society, in a sense,” he said in a recent interview. “We were constantly — not just with the tickets but with other things as well, we felt like we were something to be swept under the rug.”

But the case also roused fears among cities, particularly those in the Western states, that the ruling would lead to a surge in homelessness and, by extension, encampments in public spaces.

In asking the Supreme Court to take up the case, the city of Boise contended that the decision by the appeals court had created a new right that was not grounded in the Constitution and would paralyze the ability of cities and states to address homelessness.

“The consequences of the Ninth Circuit’s erroneous decision have already been — and will continue to be — far-reaching and catastrophic,” it said, adding, “Public encampments, now protected by the Constitution under the Ninth Circuit’s decision, have spawned crime and violence, incubated disease, and created environmental hazards that threaten the lives and well-being both of those living on the streets and the public at large.”

The court ultimately declined to take up the Boise case, citing no reasons, as is typical in petitions for review. By then, the Grants Pass case was working its way through the court system.

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The Biden administration has sought a middle path.

At the same time, the administration says the appeals court went astray by “failing to require a more particularized inquiry into the circ*mstances of the individuals subject to the city’s ordinances.” In other words, the administration seems unconvinced that the plaintiffs have proven, at least so far, that their own rights were violated.

The tension between the constitutional question in the case and the messy realities on the ground may help explain the administration’s mixed message. In its brief, for instance, the administration acknowledged that the federal government recently helped clear a homeless encampment in downtown Washington.

“In February 2023, the United States Park Police, in conjunction with the District of Columbia Department of Health and Human Services, closed a 70-person encampment at McPherson Square,” the brief said. “The decision to close the encampment was made after it was determined that illegal drug activity and a volatile atmosphere at the encampment impeded social services outreach and endangered social services providers, mental health clinicians, homeless individuals and the public.”

The federal government participates in most Supreme Court arguments, whether as a party or, as here, a friend of the court. And it often urges the justices to take cautious and incremental steps, particularly when its own interests may be affected.

The administration’s arguments appeared to leave both parties frustrated. Lawyers for the homeless plaintiffs, on the one hand, said the issue of the administration’s reservations about whether the ordinances applied to particular individuals was not before the justices.

On the other, the city accused the administration of a kind of verbal sleight of hand by saying that the challenged ordinances “effectively criminalize the status of homelessness.” That, the city said, is a willful misunderstanding of what it called “commonplace public-camping ordinances.”

“The repeated ‘effectively’ qualifier,” the city’s lawyers wrote, “gives the game away.”

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Is homelessness an involuntary state of being?

The dispute arose after Lawrence Robinson was stopped in Los Angeles by a police officer. The officer questioned him and found physical markings that pointed to injection drug use. But the officer found no evidence that Mr. Robinson was under the influence of drugs at the time or that he had any drugs on him, either for personal use or sale.

The officer arrested Mr. Robinson, who was then convicted under a California law that made it a crime to be addicted to narcotics and sentenced to 90 days in the county jail.

Mr. Robinson sued, challenging his conviction under the argument that being addicted to narcotics was not in and of itself a crime, but rather that it was a state of being because it required no specific action.

In a 6-to-2 decision, the justices sided with Mr. Robinson, overturning his conviction.

Justice Potter Stewart, writing for the majority, wrote that such laws were analogous to making it “a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease.” Although a government might find that people with such issues must undergo some type of treatment to protect the safety or health of others, the majority held that a law that made it a criminal offense to have a such a disease would “doubtless be universally thought to be an infliction of cruel and unusual punishment.”

The plaintiffs in Grants Pass are pointing to this precedent to argue that cities cannot ban sleeping with bedding in all public spaces without offering adequate shelter beds. The Robinson decision, they said in a brief, “certainly prohibits jurisdictions from punishing people for universal biological necessities like sleeping and using a blanket to survive cold temperatures when they have no choice but to be outside.”

The city of Grants Pass contends that the case and others that rely on it do not apply to its attempts to enforce its ordinances, arguing that its laws do not punish people for being homeless but instead are aimed at regulating conduct.

Lawyers for the city argued in a brief that “the court need not overrule Robinson here because this case does not involve a status crime, but there is no basis to extend its outlier reasoning any further.”

The court revisited the question of whether someone could be charged for a state of being, rather than an action, in 1968 in Powell v. Texas. In that case, police officers in Texas arrested Leroy Powell for public intoxication, and Mr. Powell made a similar argument: that public drunkenness was a compulsive symptom of chronic alcoholism, not something he could choose to stop.

But a four-justice plurality found that Mr. Powell’s conviction did not violate the Eighth Amendment. Justice Thurgood Marshall, writing for the plurality, found that the record before the court showed that Mr. Powell was not punished for his alcoholism but rather for being drunk in public.

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The outcome of the case could have reverberations not just in the West, but also across the country.

The case underscores deep divisions over how best to address homelessness and how much leeway to give to local and state officials to help solve the problem.

Theane Evangelis, a lawyer for the city of Grants Pass, Ore., who also represented the city of Boise, Idaho, in a similar case in 2018, warned that “the stakes could not be higher for every city in the country.”

If the Supreme Court upheld an appeals court ruling on behalf of the homeless plaintiffs, she added, cities everywhere “would find their hands tied just like Grants Pass, and the problem of growing encampments will spread throughout the country.”

Those who side with the homeless plaintiffs counter that the issue before the court is a focused one, on how to interpret the Constitution. The cities’ willingness to embrace solutions like more affordable housing will determine whether the homelessness crisis will begin to abate, they say.

“The first thing for folks who aren’t in this field — or understanding the nuances of this case — to understand is that nobody wants a country where people are forced to sleep outside,” said Ann Oliva, chief executive of the National Alliance to End Homelessness, an advocacy group founded in the 1980s with bipartisan roots.

In briefs, supporters of Grants Pass have contended that local and state policymakers, not judges, are best placed to devise homelessness policies.

The cases from Grants Pass and Boise had allowed “federal judges to serve as the nation’s ‘homelessness policy czars,’” wrote the Cicero Institute, a Texas policy group critical of longstanding federal policy that channels funds to programs to provide the homeless with permanent housing without requiring people to undergo mental health or drug treatment.

Lawyers for the National Alliance to End Homelessness say that imposing penalties, rather than providing housing and services, ignores the roots of the issue.

In its brief to the court, the group said that the city of Grants Pass and its defenders, “rather than working to end it,” sought “to banish homeless people out of sight and out of mind.”

“The threat of criminal penalties does not reduce homelessness,” the brief argued. “At most, it drives unsheltered homeless people into hiding, leading to greater health and safety concerns for localities. Criminal punishment for peaceably sleeping outside as an unsheltered homeless person is not only cruel and unusual in violation of the Eighth Amendment, but unnecessary, expensive and counterproductive.”

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In a rare alliance, California Democrats side with conservatives on encampments.

On Monday, the Supreme Court will consider an Oregon case that could reshape homelessness policy nationally. On its face, The City of Grants Pass v. Johnson asks how far cities can constitutionally go to restrict sleeping and camping in parks and on sidewalks.

More broadly, however, the case deals with one of the thornie*st aspects of the homelessness crisis — the balance between the government’s responsibility to protect public health and the human right to exist without housing.

The conflict has been particularly acute in the West, where the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, has issued opinions over the past six years that officials blame for the sprawling tent encampments in public spaces that have spread since the pandemic. As voters’ frustration has grown, Democratic and Republican leaders alike have called for greater authority to ban such camping, only to have the courts reject them.

Advocates for homeless people, the American Psychiatric Association and several left-leaning states, including New York, Illinois and Minnesota, argue that criminalizing homelessness only worsens the problem. More effective, they say, is focusing on housing, treatment, education and jobs for people who are homeless.

In the nine Western states in the Ninth Circuit’s jurisdiction, however, officials have increasingly begged the court to explicitly define the point at which a community can reclaim its shared spaces without triggering lawsuits. Some echo conservative appointees on the Ninth Circuit like Judge Daniel Bress, who issued a scathing response last year after the liberal majority voted not to give the Grants Pass case a rehearing before the full appeals court. (The three-judge had panel found that penalties for bunking outdoors violated the Constitution if the local population of homeless people exceeded the city’s shelter capacity.)

The Ninth Circuit, he wrote, need only look to its doorstep to see the fruit of its decision — a dystopia of “homelessness, drug addiction, barely concealed narcotics dealing, severe mental health impairment” and post-Covid “hollowing out.”

In Phoenix, where a massive encampment near the Arizona State Capitol consumed millions of state dollars and years of litigation, Timothy Sandefur, vice president for legal affairs of the Goldwater Institute, noted that both sides had asked the court for clarification.

“It just shows,” he said, “that across the board, the Ninth Circuit ruling that you have a constitutional right to sleep in a public park is unworkable and has got to be reversed.”

In California, where more than 180,000 people are homeless, Mr. Newsom wrote in his brief to the court that he opposes criminalizing homelessness, but that decisions like the one in Grants Pass “have impeded not only the ability to enforce basic health and safety measures, but also the ability to move people into available shelter beds and temporary housing.” Since his election in 2018, California has pumped more than $20 billion into programs to address homelessness, including specialized housing, a new court-based approach for dealing with addiction and mental illness and a $6.38 billion bond.

At a news conference last week, he recalled pitching in to dismantle one tent camp in Oakland that “felt like a scene out of a ‘Raiders of the Lost Ark’ where, you know, thousands and thousands of rats appeared running all around us.”

“This is to me just about common sense, not about ideology,” the governor said.

How one town’s fight over homelessness could shape a national crisis.

“I never expected it to come to this,” said Ms. Gutowski, 55. She is one of several hundred homeless people in this city of about 40,000 that is at the center of a major case before the Supreme Court on Monday with broad ramifications for the nationwide struggle with homelessness.

After Grants Pass stepped up enforcement of local ordinances that banned sleeping and camping in public spaces by ticketing, fining and jailing homeless people, lower courts ruled that it amounted to “cruel and unusual punishment” by penalizing people who had nowhere else to go.

Many states and cities that are increasingly overwhelmed by homelessness are hoping the Supreme Court overturns that decision — or severely limits it. They argue that it has crippled their efforts to address sprawling encampments, rampant public drug use and fearful constituents who say they cannot safely use public spaces.

That prospect has alarmed homeless people and their advocates, who contend that a ruling against them would lead cities to fall back on jails, instead of solutions like affordable housing and social services.

The case highlights the fierce divide over the thorny issue of how to regulate homelessness.

Theane Evangelis, a lawyer representing Grants Pass, said the Supreme Court’s decision would reverberate widely. If it does not overturn the lower-court decision, she said, cities around the United States “would find their hands tied just like Grants Pass, and the problem of growing encampments will spread throughout the country.”

Ed Johnson, a lawyer for the Oregon Law Center, a nonprofit legal aid group, who represents the homeless residents, said a ruling against them would strip them of their few protections. “Can a city make it illegal on every inch of city land, every minute of the day, for people to live outside when they have nowhere else to go?” he said.

Homelessness across the country climbed to the highest total on record last year, increasing by 12 percent to more than 650,000 people, according to a count by the federal government.

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The case centers on an unusual use of the Eighth Amendment.

But in the case on Monday, lawyers for a group of homeless residents argue that the Eighth Amendment bars the city from enforcing a series of local ordinances that, taken together, ban sleeping outside with bedding or camping in any public space in the city. Because the town, Grants Pass, has no homeless shelter, unaffiliated with any religious group, that is open to everyone, they argue, all homeless people there are involuntarily homeless and cannot be punished for having nowhere to go.

To make that argument, the homeless plaintiffs have looked to rulings that apply the amendment beyond punishments themselves and to the concept that a person cannot be penalized for their state of being.

In one landmark 1962 decision, Robinson v. California, the court found that a person could not be punished for being addicted to drugs, paving the way for subsequent applications. Because those rulings found that the Eighth Amendment prohibits punishing people for having “an involuntary status,” the homeless plaintiffs say that it would also be relevant to their situation. They add that they are being disciplined for circ*mstances outside their control, in this instance “universal biological necessities like sleeping and using a blanket to survive cold temperatures when they have no choice but to be outside.”

The city argues that this is an inappropriate use of the Eighth Amendment and a fundamental misunderstanding of its purpose.

Two legal experts, in filing a friend-of-the-court brief siding with Grants Pass, argued that the Constitution did bar criminalizing someone’s state of being, rather than their specific conduct. But that prohibition, the law professors — Peter W. Low of the University of Virginia and Joel S. Johnson of Pepperdine — added, had a “shaky Eighth Amendment footing.”