On April 22, 2024, the Supreme Court will consider the constitutionality of local government ordinances regulating the use of public property by homeless people. Its decision could have a big impact on states with large homeless populations like California, Oregon, and Arizona.
The case of Grants Pass v. Johnson comes to the Court from a city in Oregon with an estimated 39,000 residents. Grants Pass has three laws pertaining to camping inside parks and on sidewalks, rights of way, bridges, and other public property. Violations of the laws first result in civil fines, and the charges might escalate to temporary bans and short jail terms for serial violators.
Two homeless Grants City residents and others in the same situation sued Grants Pass for violations of the Eighth Amendment’s Cruel and Unusual Punishments Clause. A federal district court held that the city’s homeless population had status to sue as a class. The district court then ruled in favor of that class. The district court cited Martin v. Boise, a Ninth Circuit appeals court decision, which held that the punishment of the homeless violated the Eight Amendment since they had no access to shelter.
A divided Ninth Circuit Court of Appeals upheld the district court’s rulings, and the appeals court did not conduct a full hearing after a 15-14 vote. The Supreme Court took the case on Jan. 12, 2024, and arguments are scheduled for April 22, 2024.
The Robinson Precedent
In their petitions to the Supreme Court and in their briefs, both sides discussed two decisions from the Warren Court. In Robinson v. California, a Supreme Court case from 1962, a majority of justices invalidated a California law that made drug addiction illegal, even when someone had not engaged in any illegal conduct involving drugs.
Justice Potter Stewart concluded laws punishing someone for a status they held (in this case, drug addiction), rather than an action they had taken, were unconstitutional. “In the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments,” Stewart wrote.
A second Warren Court case from 1968, Powell v. Texas, dealt with the question of convicting of a person with chronic alcoholism after their arrest for public intoxication. A plurality of justices believed that the arrest did not serve as a cruel and unusual punishment. In his dissent, Justice Abe Fortas said that “the essential constitutional defect here is the same as in Robinson, for, in both cases, the particular defendant was accused of being in a condition which he had no capacity to change or avoid.” Fortas thought that the arrest was a cruel and unusual punishment.
These decisions came into play in the Ninth Circuit’s Martin decision that was later cited by the federal district court and appeals court in the Grants Pass case. In Martin, the Ninth Circuit concluded that Boise’s camping and disorderly conduct ordinances violated the Eighth Amendment’s prohibition on cruel and unusual punishment because they “impose criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them.”
The Grants Pass Case and the Question of Status
The petitioners in Grants Pass v. Johnson have made several arguments that challenge the Ninth Circuit’s decision and its interpretation of the Robinson precedent.
“The Ninth Circuit has held that the [Punishment] Clause forbids governments from imposing any punishment—not fines, not short jail terms, not anything—for camping on public property when such conduct flows from the purported status of being involuntarily homeless,” Grants Pass stated in its petition to the Court.
It also said that the appeals court misconstrued the Robinson decision. “There is nothing cruel or unusual about a civil fine for violating commonplace restrictions on public camping.”
“Only once has this Court held that the Eighth Amendment imposes a substantive limit on what can be made a crime as opposed to how a crime could be punished. … In Robinson v. California, this Court decided that the Eighth Amendment forbids punishing the status of being a drug addict, even if it permits prosecutions for the act of using drugs.”
The respondents have disputed many of those arguments, and the motivation for the camping ordinances in Grants Pass. “In an effort to force its homeless residents into other jurisdictions, the City of Grants Pass, Oregon, decided to aggressively enforce a set of ordinances that nominally prohibit camping, but in reality make it unlawful for homeless people to sleep or rest anywhere on public property at any time with so much as a blanket to survive the cold, even if they have no access to shelter. The plan was to inflict fines and jail time on the City’s homeless residents until they were ‘uncomfortable enough’ that they left Grants Pass,” they claimed.
“The sole question in this case is whether the Punishments Clause permits the City to inflict punishment on homeless people for resting or sleeping with a blanket anywhere in public at any time when they have nowhere else to go—in other words, for their continued physical existence in the community. Robinson provides the answer: No,” the petitioners argued in a reply brief.
The respondents also believe that the Ninth Circuit’s rulings do not conflict with the Eighth Amendment. “Robinson is firmly anchored in a century of Supreme Court precedent recognizing that the Punishments Clause prohibits ‘not only those punishments that are ‘barbaric’ but also those that are ‘excessive’ in relation to the crime committed,’” they reason. “It is difficult to imagine a more blameless offense than resting outside with a blanket to survive the cold when you have nowhere else to go.”
The United States has filed a brief in the case and asked to take part in arguments. The solicitor general sides with the respondents on one important issue. “The court of appeals correctly held that the Eighth Amendment as interpreted in Robinson prohibits a local government from effectively criminalizing the status of homelessness by completely barring individuals without access to shelter from residing in the jurisdiction,” wrote Solicitor General Elizabeth Prelogar.
But the United States believed that the district court and Ninth Circuit appeals court erred when they decided that the homeless could sue as a class. “The court of appeals appeared to conclude that it could avoid that particularized inquiry because the class is limited to individuals who are ‘involuntarily homeless.’ But even though that concept was central to the court’s decision and expressly incorporated into the injunction it contemplated, the court declined to decide what showing is required to establish that an individual is involuntarily homeless.” Prelogar wanted the case remanded to reconsider the class designation and the merits of the arguments.
The case has received widespread interest from various governments, groups, and other parties. Nearly 120 briefs were received by the court as of April 15, 2024.
Scott Bomboy is editor in chief of the National Constitution Center.
