Supreme Court rules arresting, citing people for not having shelter is constitutional
By Jeremiah Hayden, Street Roots/INSP.ngo
The US Supreme Court issued a decision in Grants Pass v. Johnson on 28 June, reversing the Ninth Circuit US Court of Appeals injunction barring the southern Oregon city of Grants Pass from enforcing ordinances banning sleeping in public spaces.
Pearl District, Portland, Oregon. Photo courtesy of Sean Benesh on Unsplash
In a 6-3 decision, conservative justices reversed the lower court’s 2022 ruling that said that punishing homeless residents for sleeping in public spaces when they have no other option violated the cruel and unusual punishment clause of the US Constitution’s Eighth Amendment.
The Supreme Court sent the case back to the 9th Circuit for further proceedings, saying that its 2018 Martin v. Boise decision — which served as the backdrop for the Grants Pass case — went too far in applying the Eighth Amendment to homeless residents facing punishment for sitting, lying or sleeping in public.
The ruling is expected to significantly impact homelessness policy throughout the US, as many local governments currently prohibit public sleeping under threat of civil or criminal penalties regardless of shelter availability.
Conservative Justices Neil Gorsuch, Clarence Thomas, John Roberts, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett formed the majority opinion. Liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented.
Gorsuch wrote for the majority, saying that the Eighth Amendment does not authorize federal judges to dictate homelessness policy and should be left to the American people. The majority ruling argued that because Grants Pass’ anti-homeless ordinances theoretically apply to everyone, they do not effectively criminalize status but rather conduct.
“Yes, people will disagree over which policy responses are best; they may experiment with one set of approaches only to find later another set works better; they may find certain responses more appropriate for some communities than others,” Gorsuch said. “But in our democracy, that is their right.”
In her dissenting opinion, Sotomayor said that it is possible for the court to balance the issues facing local governments, the humanity and dignity of people experiencing homelessness, and constitutional principles. She added that the majority focused solely on local governments while leaving the most vulnerable with the impossible choice of staying awake or being arrested. “Sleep is a biological necessity, not a crime,” she said.
In amicus briefs filed in advance of oral arguments, elected officials, police departments, and business associations throughout the West Coast joined Grants Pass in saying that two interrelated 9th Circuit decisions — Martin v. Boise and Grants Pass v. Johnson — remove the tools that they need to address the growing homelessness crisis.
Advocates for homeless residents say that laws penalizing people who have nowhere else to go violate the Eighth Amendment because they punish people for the status of being homeless. While the city said the laws are applied to everyone, counsel for a class of involuntarily homeless residents argued in court that the ordinances are exclusively enforced against those who have nowhere else to go.
Theane Evangelis, legal counsel for the city of Grants Pass, said that the 9th Circuit’s decisions tied the hands of local governments, applauding the Supreme Court’s reversal.
“The Court has now restored the ability of cities on the frontlines of this crisis to develop lasting solutions that meet the needs of the most vulnerable members of their communities, while also keeping our public spaces safe and clean,” Evangelis said. “Years from now, I hope that we will look back on today’s watershed ruling as the turning point in America’s homelessness crisis.”
Ed Johnson, director of litigation at Oregon Law Center (OLC), who brought the initial suit against Grants Pass, said that the decision was disappointing, and added that the solution to the US homelessness crisis does not ultimately rest with the courts.
“We are disappointed that a majority of the Court has decided that our Constitution allows a city to punish its homeless residents simply for sleeping outside with a blanket to survive the cold when there is nowhere else for them to go,” he said.
Johnson added that the court did not reach the Excessive Fines Clause claim or rule out the possibility that the Grants Pass ordinances violate the Due Process Clause, leaving room for future challenges. The absence of a decision on those claims will likely lead to further litigation.
Helen Cruz was intermittently homeless in Grants Pass for years and continues to provide meals to people experiencing homelessness locally. She received multiple fines and won an appeal to an exclusion order in 2022.
“It is appalling to me that nine people in little black dresses can have the power to hold the fate of someone's life in their hands,” she said. “What this ruling has done is stripped any kind of hope that the homeless community here in Grants Pass had. How can you beat someone down even more?”
For some, the work of addressing the root causes of homelessness and providing emergency services continues in the meantime. Cassy Leach, cofounder of Mobile Integrative Navigation Team (MINT) — a Grants Pass service provider for people living in parks — said that the MINT team is moving forward to provide humane solutions and wants to work with the city. She added that the city is committed to providing a place for people to go, but for now, people living in the parks are confused and unsure of what to do.
She has noticed more people moving away from the parks toward Devil’s Slide, an area out of town where people feel relatively shielded from neighbor harassment but are siloed from services they desperately need. “It's heavy,” she said, “and it’s not just heavy for us, but I keep thinking about my kids and what their future looks like with a nation that’s going down this path.”
Status v. Conduct
In a concurring opinion, Thomas opened the door for future challenges to Robinson v. California, a 1962 Supreme Court case that determined that a person cannot be punished for the involuntary status of being addicted to the use of narcotics.
Robinson is frequently cited in Grants Pass v. Johnson, as the 9th Circuit Court affirmed in Martin v. Boise that “a person cannot be prosecuted for involuntary conduct if it is an unavoidable consequence of one’s status,” such as sleeping in public when they lack an alternative.
Thomas’ opinion carries sharp implications and could pave the way for laws criminalizing other involuntary statuses. “Rather than let Robinson’s erroneous holding linger in the background of our Eighth Amendment jurisprudence, we should dispose of it once and for all,” Thomas wrote. “In an appropriate case, the Court should certainly correct this error.”
What about Oregon?
For now, the court’s opinion may have little bearing in Oregon. The Oregon Legislature codified the Martin v. Boise decision into state law in 2021. ORS 195.530 dictates that any local laws regulating sitting, lying, sleeping, or keeping warm and dry outdoors on public property “must be objectively reasonable with regards to people experiencing homelessness” in Oregon.
That law may ultimately leave homeless Oregonians with legal avenues to protect them. The court’s decision explicitly referenced Oregon’s “necessity defense”, which would allow homeless residents to argue that they only broke the law due to their inherent need to sleep. Still, the burden of proof may fall on each homeless resident on an individualized basis if making a claim in court. Legal experts say that by the time a homeless resident goes through the court system after being swept — and in some cases jailed — they have already been summarily punished.
That state law, however, is likely to face new challenges. State lawmakers began calling for changes to the state law immediately after the Supreme Court issued its decision. “The Oregon Legislature must act to reverse the misguided law that codified this unconstitutional 9th circuit decision,” state Rep. Ed Diehl (R-HD17) said on X shortly after the decision was announced on 28 June.
State House Minority Leader Jeff Helfrich (R-HD52) also celebrated the decision in a prepared statement.
“The Supreme Court’s ruling is a victory for common sense and highlights what conservative leadership looks like,” he said.
In its opinion, the court explicitly said local governments can address homelessness via policy choices, regardless of its decision.
“Nothing in today’s decision prevents States, cities, and counties from going a step further and declining to criminalize public camping altogether,” the majority said in its decision.
Gov. Tina Kotek said that her office is reviewing the decision. She added that the intent behind ORS 195.530 was to affirm that cities choosing to regulate survival activities must develop laws that are reasonable and take into account the resources available to people experiencing homelessness.
She echoed what many legal and homelessness experts say regarding what is necessary to materially resolve the crisis: “Regardless of the Court’s decision, we must do all we can to address homelessness. This includes addressing the primary driver of homelessness — our lack of affordable housing. My focus will continue to be on supporting Oregonians moving into housing and connecting them with the services they need to prevent homelessness.”
Local Response
The city of Portland and Multnomah County are in the process of working out an intergovernmental agreement to respond to the local homelessness crisis. The city, for its part, passed an updated ordinance on 8 May, leveling $100 fines and the potential for seven days in jail, with enforcement beginning on 1 July. Whether the ordinance is “objectively reasonable” enough to withstand the state law is still an open question and challenges to the state law are expected.
City Commissioner Rene Gonzalez issued a statement saying that a “dark period in the west, for Oregon, for Portland has ended,” calling on Kotek and the Legislature to “correct or repeal (ORS 195.530).”
Kat Mahoney, executive director at local nonprofit service provider Sisters of the Road, issued a statement denouncing the Supreme Court’s decision, saying that criminalizing homelessness will only make the crisis worse. “The heartbreaking reality is that because of today’s decision, we can expect to see a rise in armed police arresting and fining unhoused people and more people being traumatized and injured during police interactions,” she said.
Jessica Vega Pederson, Multnomah County Chair, said that the ruling does not change the immediate reality. “People still need places to stay warm and dry and ultimately leave homelessness,” she said. “People still need additional services to transition into shelter or housing. And we must continue to do more — and do it faster and better.”
Mayor Ted Wheeler said that the decision will have little or no impact on Portland because the city is required to follow the state law, which continues to “control and limit what Oregon cities can and can't do.”
“The City of Portland supports a robust legislative discussion on this topic, and we hope the legislature will see this opportunity to consider the tools cities truly need to manage public camping, provide sufficient shelter, and keep our streets safe and clean,” Wheeler said.
Johnson said that the work to end homelessness will continue in town halls, state houses, and on streets in every community across the country. “This crisis will not be solved by lawyers or judges,” he said. “It will certainly not be solved by the police. This crisis can only be solved by all of us. We must acknowledge what our failures have been, and we must find the political will to fund and build the housing we need so that every person in this country has a safe place to call home.
Background
The OLC filed the class action lawsuit in the US District Court of Medford on 15 October 2018 — just six weeks after the 9th Circuit issued its decision in Martin v. Boise. That decision served as the legal backdrop for the Grants Pass case and found that the US Constitution blocks cities from imposing criminal penalties on people experiencing homelessness for sitting, sleeping, or lying outside on public property if adequate alternative shelter is unavailable.
Initially filed as Debra Blake v. Grants Pass, the complaint argued that a web of ordinances criminalized the existence of people experiencing homelessness in the city. Following Blake’s death in 2021, Gloria Johnson and John Logan stepped in as class representatives as the appeal made its way to the 9th Circuit Court and ultimately to the Supreme Court.
The Supreme Court heard oral arguments on 22 April. The question presented to the court was whether city ordinances leveling civil and criminal penalties against people experiencing involuntary homelessness — meaning that they have no other option — is cruel and unusual punishment. Despite significant initial pushback from the community, Grants Pass City Council unanimously approved a small emergency shelter and navigation center run by MINT on 17 April. Still, the building’s capacity is well below what is needed to ensure that everyone has an option to sleep indoors.
Grants Pass historically had no low-barrier emergency shelter consistently available for people experiencing homelessness. The only shelter for adults was the Gospel Rescue Mission — a high-barrier program that opened in 1983. The mission requires people who stay there to participate in a work program, attend daily Christian services, abstain from substances (including nicotine) and does not allow socializing with the opposite sex except at approved events. The mission acknowledges gender and sexuality in “Biblical terms”, according to its house rules.
Still, the city ordinances require homeless residents living in vehicles to move every 72 hours, and police force people living in parks to move as often as allowed by state law, which is also 72 hours in Oregon. City code bars anyone from sleeping in public spaces or using sleeping materials for the purpose of maintaining a temporary place to live. Police give people experiencing homelessness $295 citations for “scattering rubbish”, a loosely defined term for items that officers find near a tent. Fines for violating camping ordinances can increase to $537.60 if they are left unpaid.
If a person receives two or more citations within a year for violating park rules, they can receive an exclusion order barring them from being in the park for 30 days under threat of criminal trespass. A person found guilty of criminal trespass can be punished with up to 30 days in jail and a $1,250 fine.
The Medford court ruled that the city’s ordinances violated the Eighth Amendment in July 2020. On appeal, the 9th Circuit issued a permanent injunction on 28 September 2022, barring West Coast states in its jurisdiction from issuing civil and criminal penalties against involuntarily homeless residents lacking reasonable alternative shelter.
In August 2023, Grants Pass petitioned the Supreme Court for a writ of certiorari, asking it to hear the case. Arguing that the 9th Circuit erred in its ruling, the city claimed that the Eighth Amendment sets limits on bail, fines, and punishments, but does not say what conduct governments may deem unlawful in the first place.
Editor’s Note: This article was written by Jeremiah Hayden, a reporter for our Oregon-based sister paper, Street Roots. While some of the article focuses on Oregon, the Supreme Court ruling will affect individuals experiencing homelessness in the U.S., regardless of which city or state they live in.