Supreme Court to weigh whether bans targeting homeless encampments run afoul of the Constitution

Washington — The Supreme Court will hear arguments on Monday in a case involving the homeless and bans on where they may sleep — the most significant case on the issue in decades.

The dispute involves whether laws that punish homeless people with civil citations for camping on public property are outside the bounds of the Constitution. Cities have been searching for ways to address homeless encampments that they say threaten public health and safety, as the nation confronts a spike in homelessness driven in part by high housing costs and the end of COVID aid programs. 

 A decision will shed light on how far city and state officials can go to address homeless encampments and is likely to reach beyond the borders of the Oregon city at the center of the dispute.

There were 256,000 unsheltered people in the U.S. on a given night in 2023, according to a December report from the Department of Housing and Urban Development. Homelessness rose 12% from 2022 to 2023, its highest level since tracking began in 2007, the report found, as housing prices soared and pandemic-era assistance programs expired.

"This is the most important Supreme Court case about homelessness in at least 40 years, and the results will be tremendous," said Jesse Rabinowitz, communications and campaign director at the National Homelessness Law Center, during a call with reporters. "This will either make it easier for cities to punish people for sleeping outside while failing to provide them shelter or housing, just like they did in Grants Pass, or it will push cities to fund actual solutions to homelessness."

The fight in Grants Pass

Grants Pass, a city in southern Oregon, has a population of nearly 40,000 people, and a decade ago, it ramped up enforcement of a series of ordinances that bar camping on public property or in city parks. A campsite is defined as "any place where bedding, sleeping bag, or other material used for bedding purposes, or any stove or fire is placed."

Violators are subject to fines of at least $295, but repeat offenders may be banned from a city park for 30 days. If a person violates that order by camping in a park, they are committing criminal trespass, punishable by up to 30 days in jail and a $1,250 fine.

The city said in court papers that it enforced the ordinances "with moderation," issuing more than 500 citations from 2013 to 2018. A policy from the Grants Pass Department of Public Safety states "homelessness is not a crime," and the department does "not use homelessness solely as a basis for detention or law enforcement action."

In 2018, three homeless people in Grants Pass sued the city on behalf of its homeless population, alleging its public sleeping and camping ordinances unconstitutionally punished them by violating the Eighth Amendment's prohibition on cruel and unusual punishment.

A federal district court in Oregon ruled for the challengers and barred Grants Pass from enforcing the public-camping ordinances during daytime hours without 24-hour notice, and at night entirely against the roughly 600 homeless people in the city. A divided three-judge panel of the U.S. Court of Appeals for the 9th Circuit upheld the district court's ruling as to the public-camping rules.

"The City of Grants Pass cannot, consistent with the Eighth Amendment, enforce its anti-camping ordinances against homeless persons for the mere act of sleeping outside with rudimentary protection from the elements, or for sleeping in their car at night, when there is no other place in the city for them to go," Judge Roslyn Silver, who was on the 9th Circuit panel, wrote for the majority.

The full 9th Circuit declined to rehear the case over the dissent of 13 active judges and four senior judges. Judge Diarmuid O'Scannlain, joined by 14 judges, lambasted a ruling in an earlier, similar case involving a Boise law prohibiting public sleeping, blaming it for "paralyzing local communities and seizing policymaking authority that our federal system of government leaves to the democratic process."

In that case, the 9th Circuit ruled that if the number of homeless people in a city is greater than the number of available beds in shelters, a city cannot punish homeless people with criminal citations for sleeping in public.

Grants Pass officials urged the Supreme Court to reverse the 9th Circuit's decision, arguing that "modest" fines and short jail terms for camping on public property are not cruel and unusual punishments under the Eighth Amendment. 

They said that allowing it to stand prevents governments from "proactively addressing the serious social problems associated with the homelessness crisis," and threatens many other criminal prohibitions. 

"The homelessness crisis is a significant challenge for communities large and small throughout the nation. But '[n]ot every challenge we face is constitutional in character,'" lawyers for the city wrote in a filing. "And the solution is not to stretch the Eighth Amendment beyond its limits and place the federal courts in charge of this pressing social problem."

But Ed Johnson, director of litigation at the Oregon Law Center, who brought the suit on behalf of the homeless people in Grants Pass, said the word "camping" in the city's ordinances is misleading.

"The city has simply described the condition of living outside while trying not to die of hypothermia, and called it camping," he said in a call with reporters, noting that Grants Pass has no homeless shelters and a "severe" shortage of affordable housing.

He said the Eighth Amendment does not allow governments to fine, arrest and incarcerate those with no place else to go.

"Our case has always been about this narrow and fundamental issue that's currently before the Supreme Court," Johnson said. "Can a city make it illegal on every inch of city land, every minute of the day, for people to live outside when they have nowhere else to go? We believe the answer is no."

In court filings, Johnson and his co-counsel accused the city of punishing homeless people for sleeping or resting "anywhere on public property at any time with so much as a blanket to survive the cold" and said the laws make it "physically impossible for a homeless person who does not have access to shelter" to stay in Grants Pass without facing fines and jail time.

"The city's goal was to make its homeless residents so 'uncomfortable' that they would move to other jurisdictions," the lawyers wrote in a filing, referencing a comment by a city councilor, who said in 2013 that the point of Grants Pass' policies should be "to make it uncomfortable enough for [homeless people] in our city so they will want to move on down the road."

Johnson said Grants Pass is an outlier for the broad scope of its public camping ban, and he said at least four states have similar sweeping laws that prohibit homeless people from sleeping in public spaces. Florida Gov. Ron DeSantis signed a bill into law last month that bans homeless people from sleeping on sidewalks, in parks and other public places.

Efforts to address a homelessness crisis

The dispute has attracted input from a range of advocacy and law enforcement organizations, cities, states, members of Congress and the Biden administration.

The Justice Department told the Supreme Court in a filing that the 9th Circuit was right to find that the Eighth Amendment prohibits a local government from effectively criminalizing homelessness by prohibiting individuals who lack access to shelter from residing in that area. But it said applying that principle to a particular person requires a look at their circumstances, and the lower court was wrong to issue the broad injunctive relief that it did.

Those broad injunctions issued by U.S. district courts "may limit cities' ability to respond appropriately and humanely to encampments and other legitimate public health and safety concerns," Solicitor General Elizabeth Prelogar, who represents the government before the Supreme Court, said.

She urged the Supreme Court to wipe away the 9th Circuit's decision and send the case back for further proceedings.

A group of 24 state attorneys general said in a friend-of-the-court brief there has been an increase in public encampments in large and small cities, creating public health and safety issues, and said upholding the 9th Circuit's decision would impinge on state and local governments' ability to respond to homelessness.

But six Democrat-led states said the ordinances in Grants Pass criminalize homelessness and, if adopted more widely, "could render significant portions of the country off-limits for people who are homeless."

"Every human being needs to sleep, and a person who is involuntarily homeless by definition has nowhere to sleep lawfully other than on public property," they argued in a filing. "Punishing such a person for sleeping on public property is equivalent to punishing her simply for being involuntarily homeless — the very criminalization of status that this court has held the Eighth Amendment  proscribes."

Several major cities have asked the Supreme Court to allow them to address public health and safety concerns that arise from homeless encampments.

The city of Phoenix and the League of Arizona Cities and Towns said municipalities must have the authority to "arrest, cite, or forcibly remove individuals camping on public property when their actions jeopardize public safety."  In San Francisco, which is facing a homelessness crisis, city leaders told the Supreme Court that the 9th Circuit's decision has prevented it from enforcing six state and local laws that place limits on where and when homeless people can sleep and erect tents on public property. 

"The city has been unable to implement the considered policy decisions of its Mayor and local legislature; unable to enforce the will of San Francisco voters; unable to allow conscientious City employees to do their jobs; and unable to protect its public spaces," lawyers for the city said in their brief, filed in support of neither party.

The lower court decisions have "harmed both San Francisco's housed and unhoused populations by causing obstructed and inaccessible sidewalks, unsafe encampments, and fewer unhoused people to accept services," they continued.

A decision from the Supreme Court is expected by the end of June.