Supreme Court appears divided over Oregon anti-camping homeless law

Throughout the more than two-hour argument, the court’s three liberal justices were most skeptical of laws passed by the city of Grants Pass that they suggested criminalize the most basic of human needs.

Justice Elena Kagan told the city’s attorney that its laws go well beyond the need to clear encampments from public spaces. “Sleeping is a biological necessity,” Kagan said. “Sleeping in public is kind of like breathing in public.”

Justice Sonia Sotomayor asked where people are supposed to sleep in a city that lacks sufficient shelter beds.

But several conservative justices, who make up a majority of the court, suggested that policymakers, and not judges, should be setting local rules for dealing with homeless people.

Chief Justice John G. Roberts Jr. asked the Biden administration’s lawyer why “these nine people” are the right ones to “weigh the policy judgment.”

The Supreme Court agreed to intervene in the case after hearing pleas from an unlikely coalition that spanned the political spectrum, including liberal leaders like California Gov. Gavin Newsom (D) and officials in Republican-led states like Montana and Alabama. Their legal briefs described governments overwhelmed by the severity of the problem: More than 600,000 people are homeless nationwide, according to federal data, and nearly half sleep outside.

The case began in Grants Pass, Ore., after officials started strictly enforcing a set of measures that outlawed sleeping or camping in public spaces like parks and in parked cars, imposing fines ranging from $75 to $295. The penalties increased substantially when unpaid and could eventually result in jail time or a park ban.

Three homeless people — Debra Blake, Gloria Johnson and John Logan — sued Grants Pass in 2018, saying the city, with a population of 40,000 people, was punishing them unconstitutionally “based on their status of being involuntarily homeless.” They cited the Eighth Amendment’s protections against cruel and unusual punishment.

There are officially more than 600 unhoused residents of Grants Pass, with another 1,000 living on the edge, but local service providers say at least twice as many are homeless. Grants Pass does not have a homeless shelter. Its only major transitional housing program, the Gospel Rescue Mission, is a privately-run religious facility with 138 beds and stringent requirements for residents, such as regular chapel attendance and abstinence from substances and romantic relationships.

In 2020, a district court judge sided with the unhoused people behind the lawsuit and barred the city from enforcing its anti-camping ban in parks at night if no other shelter was available. Judge Mark D. Clarke told the city that it has other options for preventing encampments without violating the Eight Amendment.

“Let us not forget that homeless individuals are citizens just as much as those fortunate enough to have a secure living space,” Clarke wrote.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, which covers Western states, including Oregon, California and Washington, upheld the decision in 2022. A closely divided 9th Circuit refused to rehear the case sitting with a full complement of judges, drawing sharp dissents and warnings of “dire practical consequences” for hundreds of cities and millions of people.

Judge Diarmuid O’Scannlain, joined by 14 colleagues, said a related 2019 decision by the 9th Circuit and expanded in the Grants Pass case was “paralyzing local communities from addressing the pressing issue of homelessness, and seizing policymaking authority that our federal system of government leaves to the democratic process.”

As a result of the 9th Circuit panel’s ruling, the attorney for Grants Pass told the Supreme Court, encampments have multiplied unchecked throughout the West because restrictions on public camping no longer play their critical deterrent role, resulting in spikes in violent crime, drug overdoses, disease, fires, and hazardous waste.

“The homelessness crisis is a significant challenge for communities large and small throughout the nation,” the city’s legal team, led by attorney Theane D. Evangelis, told the court in a court filing ahead of Monday’s argument. “The solution is not to stretch the Eighth Amendment beyond its limits and place the federal courts in charge of this pressing social problem.”

In response, lawyers for the homeless individuals said state and local officials are still free to restrict tents in public spaces, to clear encampments, and even to fine homeless people who decline other shelter options. But the city cannot punish people with no alternatives, they argued.

“Punishing homeless people for resting or sleeping outside anywhere at any time when they have no access to shelter and need a blanket to survive is not the punishment of ‘conduct’ in any meaningful sense of the word — it is akin to punishing the ‘conduct’ of breathing outside as a homeless person,” their legal team, led by attorneys Kelsi Corkran and Edward Johnson, told the justices in advance court filings.

The Biden administration charted something of a middle path. Solicitor General Elizabeth B. Prelogar agreed with the unhoused individuals in court filings that anti-camping laws are unconstitutional when they target people who have no access to indoor shelter.

But Prelogar urged the justices to return the case to the lower courts to ensure that the city’s laws are not blocked across the board. Such bans should still be allowable, she argued, if an investigation shows that a given person does in fact have access to shelter.

Both sides in the case known as City of Grants Pass v. Gloria Johnson cited a Supreme Court ruling from decades ago to bolster their conflicting arguments. The Biden administration and the homeless individuals said the 9th Circuit ruling is consistent with a 1962 decision from the high court that invalidated a California law criminalizing drug addiction, finding that the government cannot criminally punish a person because of an involuntary status.

“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,” lawyers for the homeless individuals told the court.

Grants Pass attorneys said the same decision drew a line between permissible punishment for conduct and unconstitutional penalties targeting a person’s status. The local laws, they said, are about protecting public safety and health and target the spread of encampments.

They urged the justices to reverse the 9th Circuit ruling, which they said has “taken contested questions of social policy away from elected officials and created a paralysis that harms both those living in encampments and the general public.”