BBK Firm Attorneys at Law logoIn recent years, two Ninth Circuit Court of Appeals decisions—Martin v. City of Boise (“Martin”) and Johnson v. City of Grants Pass (“Johnson”)—significantly narrowed the permissible scope of local regulation of public camping. Today, in a 6-3 decision, the U.S. Supreme Court overruled these decisions and opened the door for cities to again enforce laws regulating public camping.

Background: Martin & Johnson

Understanding today’s Supreme Court decision requires a brief overview of the Ninth Circuit’s decisions in Martin and Johnson. In Martin, homeless individuals sued the City of Boise, Idaho, after being criminally prosecuted under city ordinances banning public camping. As relevant here, the Ninth Circuit held that the Cruel and Unusual Punishment Clause of the Eighth Amendment “prohibits the imposition of criminal penalties for sitting, sleeping or lying outside on public property for homeless individuals who cannot obtain shelter.” Subject to some exceptions, Martin prohibited cities from arresting homeless individuals for involuntarily sitting, lying or sleeping in public when the city does not provide a shelter bed in its “jurisdiction” for that potential arrestee. In December 2019, the Supreme Court denied Boise’s petition to review this decision.

The Johnson decision came later and involved two Grants Pass, Oregon, camping regulations. The first allowed sleeping in public, but prohibited the use of “bedding, [a] sleeping bag, or other material used for bedding purposes.” The city argued that Martin’s holding was limited to prohibitions on sleeping in public. And on that basis, the city maintained that local regulations—such as a complete prohibition on the use of bedding, sleeping bags and related items—were permissible. The Ninth Circuit disagreed and concluded that the “only plausible reading” of the term “sleeping” in the context of Martin is that it “includes sleeping with rudimentary forms of protection from the elements.”

The second regulation involved the city’s enforcement framework in light of Martin’s prohibition on imposing “criminal penalties for sitting, sleeping or lying outside on public property . . . .” Grants Pass preceded criminal enforcement by issuing civil penalties that—if violated—could then be punished criminally. The Ninth Circuit rejected this approach, reasoning that Martin’s holding applies to civil citations where “the civil and criminal punishments are closely intertwined.” In August 2023, Grants Pass petitioned the Supreme Court to review this decision. The petition was granted in January 2024 and oral argument was held in April.

The Supreme Court Weighs-In

Justice Gorsuch authored the majority opinion and was joined by Justices Thomas, Alito, Kavanaugh, Barrett, and Chief Justice Roberts (hereafter, the “Court”). At its core, the question addressed was whether “one specific provision of the Constitution—the Cruel and Unusual Punishments Clause of the Eighth Amendment—prohibits the enforcement of public-camping laws.” The Court said no.

The Court explained that the Eighth Amendment’s Cruel and Unusual Punishments Clause was adopted to “ensure that the new Nation would never resort” to formerly tolerated punishments considered to be “‘cruel’ because they were calculated to ‘superad[d] terror, pain, or disgrace’ and considered ‘unusual’ because by the time of the Amendment’s adoption, they have ‘long fallen out of use.’” The Court added that the Eighth Amendment is focused on “the method or kind punishment” that a “government entity may impose for the violation of criminal statutes”—not “whether a government may criminalize particular behavior in the first place or how it may go about securing a conviction for that offense.”

The Court observed that Grants Pass’s civil-then-criminal punishment framework was not “cruel and unusual” because the city imposed limited civil fines for first-time offenders, non-criminal stay away orders from public parks for repeat offenders, and a maximum sentence of 30 days in jail for those who violated the orders. The Court reasoned that this scheme of fines and jail time is a common practice among municipalities nationwide, who impose “similar punishments for similar offenses.”

The Court also rejected the Ninth Circuit’s rationale in Martin and Johnson that public camping ordinances (like Grants Pass’s) violate the Eighth Amendment by criminalizing an individual’s “status” as a homeless person. The Court observed that the camping laws at issue were not “status” crimes because they criminalized conduct (i.e., camping in public) and violations could occur regardless of whether the “charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.”

In sum, the Court observed that the “Eighth Amendment serves many important functions, but does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy.”

Conclusion & Next Steps

The Supreme Court’s decision overruled the Ninth Circuit’s decisions in Martin and Johnson. Consequently, cities within the Ninth Circuit’s jurisdiction (which includes all of California) may again enact and enforce laws regulating public camping and to address the causes and conditions of homelessness. Many agencies have modified their regulations in light of the Martin and Johnson decisions. As such, we recommend you reach out to your attorney to review and update your ordinances in light of this new decision.

Authored by BBK Partners Elizabeth W. Hull & Denise M. Hansen, Associate Ryan Stager, Deputy Director of Municipal CCode Enforcement Aaron L. Chandler, and Senior Prosecution Counsel Dylan V. Gunzel

Disclaimer: BBK Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.