Homeless camping bans

What’s happening

On Monday, the Supreme Court heard oral arguments in City of Grants Pass v. Johnson, which focuses on the lawfulness of criminally penalizing the homeless for camping in public spaces. The case stems from rules put in place by the city of Grants Pass, Oregon, which prohibit anyone from camping on public property using cardboard boxes, blankets, or pillows. Initial violations result in a $295 fine and increase to $538 if unpaid. Individuals can be banned from city property after two citations, with violations of the ban resulting in up to 30 days of jail time and a $1,250 fine.

Legal history: The Ninth Circuit Court of Appeals, a federal appeals court with jurisdiction over 9 western states including Oregon and California, previously ruled that Grants Pass’s outdoor camping penalties violate the Eighth Amendment’s prohibition of cruel and unusual punishment. It concluded the city could not punish individuals who were “involuntarily homeless,” a status arising when there are not enough shelters or beds available. (Grants Pass then challenged this ruling to the Supreme Court.)

The Ninth Circuit’s ruling on Grants Pass drew from its own precedent in Martin v. City of Boise (2018) and from Supreme Court precedent in Robinson v. California (1962), which ruled that an individual cannot be criminally punished simply for their “status” of being a drug addict. The Ninth Circuit used this “status” determination to rule that an individual cannot be punished for their “status” of being “involuntarily homeless.”

Implications: Observers note the Supreme Court case may be the most important one on homelessness in decades, and its decision could have significant implications on how homelessness is managed in western US states and the broader nation. (A decision is expected by the end of June.)

The US Department of Housing and Urban Development reported that 653,104 people were homeless on a single night in 2023 (the highest since recording started in 2007), and the total number of homeless increased 12% from 2022 to 2023. The 9 states that fall under the Ninth Circuit’s jurisdiction and face greater scrutiny under its ruling accounted for roughly 41% of the US homeless population in 2023.

Debate over the case has centered around the extent to which the homeless should be allowed to camp in public spaces and which measures are most effective for reducing homelessness. Read on to learn more and let us know what you think.

Notable viewpoints

SUPPORTIVE OF GRANTS PASS AND CRIMINAL PENALTIES FOR PUBLIC CAMPING

The Ninth Circuit’s definition of “involuntarily homeless” is overly broad and puts an unnecessary burden on cities trying to enforce their rules.

• The Ninth Circuit’s definition of “involuntarily homeless” (defined as those that do not have access to adequate temporary shelter, determined largely by the ratio of available shelter beds to the number of homeless) does not adequately account for situations where a homeless person declines housing; for example, a woman declined housing because her dog was not allowed in a shelter.
• The broad definition of “involuntarily homeless” makes it difficult to determine whether someone is experiencing homelessness voluntarily and how to determine the ratio between available beds and people in need of shelter; for example, open beds in religious shelters were excluded from the count by the Ninth Circuit on concerns of unlawfully favoring a religion. (Summarized from brief of petitioner (City of Grants Pass) to the Supreme Court in City of Grants Pass v. Johnson.)
• Justice Elena Kagan suggested sleeping in public might be protected as a basic human need; if it is, arguably defecating in public or lighting fires in public to stay warm could also be protected, which would cause issues for other residents; fires by the homeless drive a significant portion of fire calls in cities like Portland and Seattle.

Barring cities from enforcing homeless camping rules puts them in a difficult position when trying to maximize the welfare of their people.

• While people shouldn’t be punished for sleeping outside when shelter is unavailable, the Ninth Circuit ruling puts states and cities in the impossible position of being sued for taking action or dealing with the consequences of inaction. (Summarized from amicus brief of California Governor Gavin Newsom (D) to the Supreme Court in City of Grants Pass v. Johnson.)
• San Francisco estimated that full compliance with the Ninth Circuit ruling would require dedicating more than ⅓ of its total budget toward homelessness support.

Penalizing homeless camping is not a violation of the Eighth Amendment.

• The Eighth Amendment sets limits on punishments for crimes, not on what behaviors are permitted or deemed unlawful in the first place. (Summarized from brief of petitioner (City of Grants Pass) to the Supreme Court in City of Grants Pass v. Johnson.)
• If the Supreme Court were to uphold the Ninth Circuit ruling, it would create a costly Eighth Amendment right to sleep on public property and put difficult new responsibilities on state and local governments.
• Homeless encampments themselves are “cruel and unusual,” creating many issues and health risks to the homeless such as theft, abuse, rape, disease, and supported drug use; the homeless in San Diego were 118x more likely to die of a drug overdose in 2021 than the non-homeless.

Homeless camping negatively affects the well-being of the broader public.

• Allowing the homeless to camp in public spaces like parks prevents the non-homeless from thriving and using the spaces for which their tax money pays.
• The Ninth Circuit’s ruling removes a credible threat to public camping and incentive to move to available shelter beds, undermining quality of life for both the broader public and homeless individuals themselves.

Local regulations on homeless support and enforcement should not be heavily controlled by federal judges.

• The Ninth Circuit’s position is confusing and difficult for cities to follow, and federal judges should not be reaching so deep into local policies when measures that work in one city may not work in another.
• The attempts by federal judges to regulate local homeless policy from afar equate to ignoring the realities of different situations on the ground; last year, for example, a homeless man killed another in a park in Grants Pass, while San Francisco saw 800+ fires started in homeless encampments.

OPPOSED TO GRANTS PASS AND CRIMINAL PENALTIES FOR PUBLIC CAMPING

Punishing the homeless with criminal penalties makes it harder for them to escape homelessness.

• Criminally penalizing homeless camping would make it harder for the homeless to find housing, get a job, or receive government benefits later on with a criminal record.
• Fines for homelessness would make it harder for the homeless to find stable housing; a study of people in Seattle found that those with legal debt spent 22.9 months longer without stable housing than those without debt.
• A 2024 working paper by University of Texas and University of Central Florida researchers found that criminal penalties for homelessness do not lead to a statistical decrease in the population of homeless in the years following their activation.
• Criminalizing outdoor sleeping by the homeless disproportionately affects individuals suffering from mental illness because people with mental illness disproportionately experience homelessness; more than 20% of the homeless suffer from a mental illness compared to 5.6% of the general population.

Grants Pass goes too far in its laws and could manage its homeless population effectively with looser restrictions.

• The rules of Grants Pass go too far in limiting the homeless from using blankets, pillows, or cardboard boxes; the city could allow use of these items and some public camping for safety while still enforcing rules against tents or camping in certain places. (Summarized from brief of respondent (Johnson, et al.) to the Supreme Court in City of Grants Pass v. Johnson.)
• Criminalizing sleeping outdoors is likely not the answer to homelessness, particularly when fining individuals that have no way to pay their fine; the Grants Pass law is also likely applied unequally – non-homeless individuals who fall asleep stargazing with a blanket, for example, are unlikely to be ticketed by law enforcement.
• Grants Pass’s criminal penalties reflect a city that prefers to avoid the heavy lifting of providing housing and homeless support services; Grants Pass decision-makers themselves said in a 2013 city council meeting that they wanted to make it “uncomfortable enough for [the homeless] in our city so they will want to move on down the road.”

Criminalizing homeless camping violates the Eighth Amendment.

• “But just as California crossed the constitutional line when it criminalized simply being in the state while having a narcotic addiction, punishing homeless people for existing in the community without shelter access is cruel, unusual, and impermissible under the Punishments Clause.” (Statement by respondents (Johnson, et al.) in their brief to the Supreme Court in City of Grants Pass v. Johnson.)

More should be done to prevent homelessness than punish it.

• The lack of affordable housing is driving recent increases in homelessness and more should be done to improve affordable housing options.
• The Supreme Court decision should not penalize homelessness; instead resources should be shifted to building affordable housing; Washington State, for instance, needs 26,100 new affordable units annually for the state’s lowest earners by 2044.
• Governments should invest in homelessness prevention such as housing subsidies, mental health transitional services, and a right to counsel in eviction proceedings.

Criminalizing homeless camping can be more expensive and burdensome for local governments.

• Some research shows that it is more expensive to jail the homeless than it is to give them shelter; for example, a 2016 paper by Allard K. Lowenstein International Human Rights Clinic highlighted it costs $87 per day on average to jail an individual compared to $28 per day to provide them with shelter.

OTHER VIEWPOINTS

The courts should focus more on exclusionary zoning laws than the constitutionality of homelessness penalties.

• The courts would better help the homeless by ending exclusionary zoning laws using the Takings Clause of the Fifth Amendment; a Pew Charitable Trusts report found that housing costs are the biggest driver of homelessness in recent decades and exclusionary zoning is a significant driver of high housing costs.

Determinations of whether someone qualifies as “involuntarily homeless” should be made on an individual basis rather than through broad court definitions.

• While the Grants Pass laws go too far in punishments for the homeless, the Supreme Court should do away with the Ninth Circuit’s broad “involuntarily homeless” class definition and instead allow law enforcement to make individualized assessments of whether individuals have an alternative place to stay. (Summarized from brief of Biden administration to the Supreme Court in City of Grants Pass v. Johnson.)

Regardless of who the Supreme Court sides with, it should preserve the core protections of Robinson v. California (1962).

• While unlikely, overturning the Robinson v. California (1962) ruling that individuals cannot be punished for their “status” (e.g., drug addict) would be a broad threat to civil liberties; for example, rich communities could theoretically ban low-income people from entering their neighborhoods or convicted felons could be prohibited from entering certain states.

If the Supreme Court overturned the Ninth Circuit ruling on Grants pass, it would not necessarily compel a massive shift in homelessness penalties nationwide.

• If the Supreme Court were to side with Grants Pass and overturn the Ninth Circuit ruling, it wouldn’t necessarily lead to the broad criminalization of homeless camping in all cities and states; citizens would still be able to influence local policies through voting and the democratic process.

From the source

Read more from select primary sources:

• Brief of petitioner (City of Grants Pass) in City of Grants Pass v. Johnson
• Brief of respondents (Johnson, et al.) in City of Grants Pass v. Johnson
• Full transcript of oral arguments in City of Grants Pass v. Johnson
• Amicus brief to Supreme Court in City of Grants Pass v. Johnson: Lawyers’ Committee for Civil Rights Under Law
• Amicus brief to Supreme Court in City of Grants Pass v. Johnson: President Biden administration
• Amicus brief to Supreme Court in City of Grants Pass v. Johnson: California Governor Gavin Newsom (D) 
• Full text of Ninth Circuit Court of Appeals ruling in Johnson v. City of Grants Pass (2022)
• Full text of Supreme Court ruling in Robinson v. California (1962)
• Full text of Eighth Amendment

Be heard

We want to hear from you! Reply to this email with your perspective on homeless camping laws and we may feature it in our socials or future newsletters. Below are topic ideas to consider.

• Are you supportive of criminal penalties for camping in public spaces?
• What are some arguments or supporting points you appreciate about a viewpoint you disagree with?

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