The U.S. Supreme Court today granted cities more power to arrest, cite and fine people who sleep outside in public places — overturning six years of legal protections for homeless residents in California and other western states.
In Grants Pass v. Johnson, the court sided with Grants Pass in a 6-3 decision, ruling that an ordinance passed by the Oregon city that essentially made it illegal for homeless residents to camp on all public property was not unconstitutional. Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — all Democratic appointees — dissented.
The much-anticipated decision overturns a prior influential Ninth Circuit Court of Appeals ruling, and means cities no longer are prohibited from punishing unhoused residents for camping if they have nowhere else to go. It will have major ramifications for how California leaders and law enforcement handle homeless encampments.
“Homelessness is complex,” wrote Justice Neil Gorsuch, a Trump appointee, writing for the majority. “Its causes are many. So may be the public policy responses required to address it. At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not.”
Regulating camping on public property does not constitute “cruel and unusual punishment” under the 8th Amendment — a clause that the court said is restricted to limiting the type and severity of punishment, not the reason for punishment. And the types of punishment Grants Pass imposed on homeless residents — “limited” fines and a maximum jail sentence of 30 days — don’t qualify as cruel and unusual because they aren’t designed to impose “terror, pain or disgrace,” he wrote.
The court also rejected the homeless plaintiffs’ claim that ordinances banning people from camping, if there is no shelter available, essentially criminalize the very act of being homeless. Anti-camping ordinances, such as those adopted in Grants Pass, don’t take status into account; they apply to homeless people, but they also apply, for example, to vacationing backpackers and student protesters camping in front of municipal buildings.
Sotomayor, in her dissent, argued the court’s opinion leaves society’s most vulnerable people with an impossible choice: “Either stay awake or be arrested.”
“Sleep is a biological necessity, not a crime,” she wrote, joined by Kagan and Jackson. “For some people, sleeping outside is their only option. The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow. For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional.”
“It will make homelessness worse, in California and Grants Pass and across the country.”
JESSE RABINOWITZ, NATIONAL HOMELESSNESS LAW CENTER
Activists supporting the civil rights of unhoused people decried the ruling, saying it could result in people getting arrested simply for being homeless.
PATH, which provides services for homeless residents in multiple counties throughout California, called today’s ruling the most important Supreme Court decision about homelessness in 40 years.
“The Supreme Court decision in the Johnson v. Grants Pass case is devastating and will have disastrous consequences for unhoused individuals across the country,” CEO Jennifer Hark Dietz wrote in a statement.
“It will make homelessness worse, in California and Grants Pass and across the country,” said Jesse Rabinowitz, spokesperson for the National Homelessness Law Center. “We know that throwing people in jail and giving them thousands of dollars in tickets makes it harder for them to find jobs, harder for them to find housing and harder for them to exit homelessness.”
“This decision removes the legal ambiguities that have tied the hands of local officials for years…”
GOVERNOR GAVIN NEWSOM
But groups representing cities, counties, law enforcement organizations and business interests cheered the decision, saying it would finally allow for the removal of unsafe, unsanitary encampments. Even California Gov. Gavin Newsom weighed in, filing a “friend of the court” brief in which he wrote: “Hindering cities’ efforts to help their unhoused populations is as inhumane as it is unworkable.”
This morning Newsom hailed the ruling. “This decision removes the legal ambiguities that have tied the hands of local officials for years and limited their ability to deliver on common-sense measures to protect the safety and well-being of our communities,” he said in a statement.
The issue of homeless encampments has had the unusual effect of uniting some Democratic officials with conservatives who also pushed for a crackdown.
“Homelessness is a crisis in California. The misguided 9th Circuit decision has tied the hands of local officials, allowing encampments to multiply unchecked,” California Republican U.S. Rep. Kevin Kiley of Rocklin said in an email to CalMatters. “Cities need to be able to act to protect public health and safety, while at the same time connecting those in need with services.”
Those who are or have been homeless are worried about what happens now.
Anita De Asis Miralle, who goes by “Needa Bee,” was homeless for about eight years before finding housing in Oakland earlier this year. De Asis Miralle, who advocates for other unhoused people through her grassroots group The Village, worries the ruling will lead to cities disregarding their rights. Already, she said, she’s seen Oakland clear encampments without offering occupants adequate shelter. To her, those sweeps rip apart communities and take away people’s precarious sense of stability.
“The big fear is not only how bold they’re going to be,” De Asis Miralle said, “but how much deeper into instability and trauma and homelessness it will drive people.”
How we got here
The case stems from a 2018 lawsuit against Grants Pass, a small city in southern Oregon that banned camping throughout its jurisdiction. The lower courts sided with homeless residents who argued that because humans need to sleep somewhere, the Grants Pass ordinance made it illegal to be homelessness.
That decision was in line with an earlier Ninth Circuit appellate ruling — Martin v. Boise — that determined that punishing an unhoused person for camping in public, if they have nowhere else to go, violates the Constitution’s 8th Amendment ban on cruel and unusual punishment.
The 2018 Boise ruling changed how cities respond to homeless encampments. Many interpreted the court decision to mean that they could not clear an encampment unless they had a shelter bed available for every displaced resident. Local courts have hit several California cities — including San Francisco, Sacramento, Chico and San Rafael — with orders halting or delaying encampment clean-ups due to lack of adequate shelter.
Many California cities and law enforcement agencies have complained that the decision tied their hands and prevented them from enforcing common-sense ordinances governing homeless encampments. Today, the Supreme Court majority agreed, saying Boise created an “unworkable” mandate for cities.
The Boise “experiment” forced cities and law enforcement agencies to determine if there is a shelter bed available for each homeless individual they attempt to fine or arrest, Justice Gorsuch wrote. That’s a difficult question, as it can depend on factors such as the quality of shelter beds available, a person’s individual needs, whether they rejected a prior offer of shelter, and more.
“Those unavoidable questions have plunged courts and cities across the Ninth Circuit into waves of litigation,” Gorsuch wrote.
The COVID pandemic made the situation more complex. In 2020, federal health regulations recommended that cities not clear any encampments, in order to limit the spread of the virus and protect vulnerable homeless residents. Encampments in many California cities grew and became more entrenched, with residents building makeshift shacks out of scraps of wood and metal.
When vaccines arrived and concern about the pandemic gradually died down, it left in its wake a growing discontent over the proliferation of homeless encampments in public open spaces. With that came a chorus of complaints from city leaders and law enforcement that the Boise ruling stripped them of the power to enforce rules regarding homeless residents.
It’s an issue that’s particularly crucial in California, which is home to nearly a third of the country’s homeless population. More than 180,000 unhoused people live in the Golden State, including more than 123,000 people who sleep in encampments or other places not meant for habitation.
Multiple California cities already are cracking down on those homeless camps. Some are getting around the Boise ruling by banning camps in certain areas rather than throughout the entire city. San Diego recently started enforcing a controversial ordinance that prohibits camps near schools, shelters and transit hubs, in parks, and — if shelter beds are available — on all public sidewalks. At the same time, the city opened two sanctioned tent campsites where about 500 unhoused people can sleep.
San Diego’s ordinance has led to a noticeable decrease in the number of homeless residents camping downtown. But camping is just as prevalent — if not more so — along highway on- and off-ramps, and along the San Diego River.
Senate Bill 1011 by GOP leader Brian Jones would have imposed a statewide camping ban similar to San Diego’s. But the bill died in its first committee hearing, suggesting a lack of appetite for a statewide crackdown.
Activists who provide homeless services, as well as researchers who study the population, say cities should not be able to break up encampments with impunity. Encampment sweeps cause homeless residents to lose important belongings and documents, push them farther away from their sources of food, medicine and other services, and — especially if arrests or citations are involved — make it harder for them to find jobs and housing, according to experts.
“The enforcement of laws criminalizing homelessness has been shown to have wide-ranging and lingering negative impacts on those experiencing homelessness, which create significant barriers to exiting homelessness,” a group of more than 50 social scientists specializing in homelessness wrote in a “friends of the court” brief in the Grants Pass case.
The Supreme Court heard oral arguments in April. In their comments and questions, the justices appeared divided along ideological lines, with the liberal justices more sympathetic to the arguments of the homeless residents. The Supreme Court has a 6-3 conservative majority.
Underscoring the importance of the case, more than three dozen elected officials and organizations weighed in by filing “friend of the court” briefs.
By Marisa Kendall. Originally published by CalMatters.
CalMatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics