During oral arguments in Grants Pass v. Johnson, conservative justices indicated it’s a policy question that should be left up to elected representatives

By Ariana Figueroa, States Newsroom

WASHINGTON — A majority of U.S Supreme Court justices Monday seemed inclined to side with an Oregon town’s law that bans homeless people from sleeping outdoors, in a case that could have broad implications for local ordinances related to homelessness across the country.

During oral arguments in City of Grants Pass, Oregon v. Johnson, conservative justices said that policies and ordinances around homelessness are complex, and indicated it’s a policy question that should be left up to local elected representatives rather than the courts.

“Why do you think these nine people are the best people to judge and weigh those policy judgments?” Chief Justice John Roberts asked, referring to the Supreme Court.

Taking a much different tack, the three liberal justices said that Grants Pass officials went too far and targeted homeless people with fines for the basic human need to sleep when they camped outside.

Justice Sonia Sotomayor grilled the lawyer for Grants Pass on how the city law essentially criminalized homelessness.

“You don’t arrest babies who have blankets over them, you don’t arrest people who are sleeping on the beach, as I tend to do if I’ve been there a while. You only arrest people who don’t have a second home, is that correct?” Sotomayor said.

The case originated in Grants Pass, a city in southwest Oregon that argues its ordinance is a solution to the city’s homelessness crisis.

An attorney representing a group of homeless people argued that they are involuntarily without housing because there are limited shelter beds for the number of homeless people in the area. The lawyer also said the ordinances criminalize homelessness through fines and potential jail time for camping or sleeping in outdoor spaces.

The town of nearly 40,000 has about 600 people who are homeless and the only nonprofit that can provide shelter can house only up to 100 beds, according to a brief submitted by the nonprofit, Grants Pass Gospel Rescue Mission.

‘Cruel and unusual punishment’

The justices are being asked to decide whether the enforcement of that local ordinance on regulating camping on public property violated the “cruel and unusual punishment” clause of the Eighth Amendment.

Theane Evangelis, the attorney representing the city, argued that the city is going after the conduct of unhoused people, rather than the status of homelessness.

“We can look at the law and it has a conduct element — the conduct is establishing a campsite,” she said.

The attorney representing the plaintiffs, Kelsi B. Corkran, argued that the ordinance is a violation of the Eighth Amendment by inflicting punishment for the status of being homeless.

“Although the city describes its ordinances as punishing camping on public property, it defines campsite as any place a homeless person is while covered with a blanket,” she said. “The city interprets and applies the ordinances to permit non-homeless people to rest on blankets and public parks, while a homeless person who does the same thing breaks the law.”

Corkran is representing Gloria Johnson and John Logan, who are both homeless.

Effects across the United States

The case could not only have implications for the city in Oregon where the case originated, but for cities across the U.S., particularly in the West, that have similar ordinances and are grappling with an increasing homelessness crisis.

There are nearly 327,000 people who are homeless in the country, according to most recent U.S. Census data. States with the highest population of homeless people per 10,000 people include California, Oregon, Washington and Montana, according to five-year estimates in the American Community Survey.

Outside the court, advocates gathered to show their support of the injunction that bars the city ordinance from taking place.

“Homelessness is a result of systemic issues such as a lack of affordable housing, exorbitant rents, and a shortage of well-paying jobs,” Sarae Lewis, a spokesperson for Community Solutions, said in a statement. “Arresting and fining people for sleeping on the streets is ineffective, keeps people homeless for longer, and distracts from real solutions like those we see working in communities across the country.”

Community Solutions, a nonprofit that works to end homelessness, was joined by other organizations that advocate for people without homes such as the National Homelessness Law Center and the National Coalition for the Homeless.

History of the case

The city is appealing to the Supreme Court after lower courts ruled in favor of the plaintiffs, Johnson and Logan, who are homeless residents of Grants Pass.

A federal judge blocked the city’s ordinance that prohibited people from camping and sleeping in parks and on public property. Grants Pass also barred people who are homeless from using blankets, pillows or other material to protect themselves from the weather while sleeping outside.

If that ordinance was violated, it carried a $295 fine that, if not paid, increased to more than $530. Repeat offenders could also be jailed for up to 30 days.

A three-panel judge on the 9th Circuit determined in 2022 that the city has such strict restrictions on anyone sleeping outdoors that it led to a ban on being homeless. 

That decision relied on a 2018 case, Martin v. City of Boise. The case involved homeless plaintiffs who sued the city of Boise, Idaho after it fined them under a camping ordinance.

The 9th Circuit found that the city’s ordinance violated the Eighth Amendment’s ban on cruel and unusual punishment because it imposes criminal penalties for homeless people sleeping outside or on public property when they do not have access to a shelter.

On Monday, Justice Ketanji Brown Jackson noted that the state of Oregon enacted a statute that codified the Martin case, saying city regulations “of this nature have to be objectively reasonable as to time, place and manner, with regards to people experiencing homelessness.”

“It seems like the state has already precluded Grants Pass from doing the sort of thing it’s doing here,” Jackson said to Evangelis.

Evangelis said that the new law was not similar to the Martin case and that the city ordinance also takes into consideration the safety of the community.

“They protect the health and safety of everyone and it is not safe to live in encampments,” she said. “It’s unsanitary. There are the harms of the encampments themselves on those in them and outside.”

City’s argument

Evangelis argued that the court of appeals was wrong in its interpretation, as well as the plaintiffs, who cite a 1962 Supreme Court decision in Robinson v. California.

In that case, the Supreme Court deemed that a state cannot criminalize someone for their status of being addicted to drugs because it violated the Eighth Amendment’s prohibition on “cruel and unusual punishment.”

That case barred the criminalization of narcotics addiction, but not the conduct of the crime that someone who is addicted to drugs might participate in, such as using, buying, selling or possessing drugs.

Evangelis argued that the Grants Pass law is “so far removed from what was at issue in Robinson that it just isn’t implicated here.” She said that the city’s ordinance does not criminalize the status of homelessness.

Justice Samuel Alito said that the Robinson case “presents a very difficult conceptual question.”

“The point is that the connection between drug addiction and drug usage is more tenuous than the connection between absolute homelessness and sleeping outside,” he said.

Evangelis said that the case the plaintiffs are making is that camping or sleeping outside and being homeless are “two sides of the same coin.”

“It’s collapsing the status that they claim into the conduct,” she said. “So we think the conduct here is very clear, because it applies generally to everyone. The law does not say on its face, ‘It is a crime to be homeless,’ I just want to make that clear.”

Justice Elena Kagan asked if under Robinson, the status of homelessness could be criminalized.

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

Kagan said that homelessness is a status, because “it’s the status of not having a home.”

Evangelis said she disagreed with that because being homeless is a fluid experience that could change from day to day.

Jackson said that the city’s ordinance seemed to punish the basic need for sleep.

“What’s happening is you’re only punishing certain people who can’t afford to do it privately,” she said.

Corkran argued that if someone is violating the city ordinance, and is told to leave but they have no place to go, that means that person is homeless.

“So again, homelessness is not something you can do, it’s just something that you are,” she said.

Department of Justice neutral

The Biden administration took the middle ground, issuing a brief that is neither in support of nor against either party.

The brief agreed with the 9th Circuit decision in the Idaho case, but argued that cities should be allowed to enforce restrictions for the health and safety of their residents.

“Although the United States continues to believe that the fundamental principle recognized in Martin is sound, it shares amici’s concerns about the broad and burdensome injunctions entered by some district courts in the Ninth Circuit, which may limit cities’ ability to respond appropriately and humanely to encampments and other legitimate public health and safety concerns,” U.S. Solicitor General Elizabeth Prelogar wrote.

U.S. Deputy Solicitor General Edwin Kneedler offered partial support in a brief statement and also answered questions posed by the justices.

“It’s the municipality’s determination, certainly in the first instance with a great deal of flexibility, how to address the question of homelessness,” he said.

A constitutional issue?

Justice Brett Kavanaugh seemed skeptical that the city’s ordinance was a constitutional issue and instead is a policy one, such as how there are not enough beds.

“Do you think the constitutional role should be different when the number of beds available in the jurisdiction exceeds the number of homeless people versus the number of homeless people exceeds the number of beds available in shelters?” he asked Evangelis.

She said that it was unworkable.

“There is no way to count what beds are available and who is perhaps willing to take one and who would consider it adequate, then the question becomes, are those beds adequate?” she said.

Kavanaugh said that “it’s a difficult policy question.”

Justice Amy Coney Barrett asked Evangelis if the city laws are enforced, “is there a way for everyone to be cared for?”

“That ultimate question is for the legislature and policymakers to figure out what the right solution (is), what the right mix of policies is, but the wrong answer is to do what the 9th Circuit did here,” Evangelis said.

Ariana Figueroa covers the nation’s capital for States Newsroom. Her areas of coverage include politics and policy, lobbying, elections and campaign finance. Oregon Capital Chronicle is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.

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