WASHINGTON (CN) — Next week the Supreme Court will hear arguments over whether a small Oregon city’s ban on public camping unconstitutionally criminalizes homelessness.
“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?” Edward Johnson, an attorney with the Oregon Law Center, asked reporters. “We believe the answer is no.”
Johnson has spent nearly all of his 30-year career as a legal aid lawyer representing unhoused people. In 2018, he said he encountered something unique in Grants Pass, Oregon.
“People were being regularly awakened and threatened by the police and they were told that there was no place in town they were allowed to be,” Johnson said. “They were ticketed, fined, arrested and jailed for living outside in Grants Pass with as little as a blanket or a tarp to survive.”
Five years earlier, the Grants Pass City Council held a public meeting to identify solutions to the city’s vagrancy problems. City leaders decided to enforce a set of ordinances regarding public sleeping and camping.
Sleeping on public sidewalks, streets or alleyways at any time was prohibited. Camping on any sidewalk, street, alley, lane, public right of way, park, bench or any other publicly owned property or under any bridge with bedding, sleeping bag or other materials was banned.
Violators of the ordinances face fines starting at $295. Two citations for breaking park rules within one year results in a 30-day ban from the park. If an individual is under a park ban and continues to camp in the area, they face criminal trespassing charges that carry jail time and a $1,250 fine.
For Gloria Johnson, the ordinances sparked fear that she could be fined, ticketed and arrested at any time for sleeping in her van. The former nurse has lived in Grants Pass for over a decade but became homeless three years ago after being evicted. She is on a fixed income from social security retirement and can’t afford housing in the city.
Grants Pass native John Logan has spent the last six years unhoused after he was forced to move out of his home. Logan sleeps in his car, like Johnson, and was told there was no place in the city where he could camp.
Johnson and Logan filed a class action lawsuit on behalf of themselves and other unhoused people in Grants Pass. The lawsuit claims that the city’s camping ordinances had effectively criminalized their status. Johnson and Logan said they couldn’t help being homeless and didn’t have access to any shelters that would allow them to avoid camping on the street.
The lawsuit argues that criminalizing involuntary homelessness is cruel and unusual punishment and violates the court’s ruling in Robinson v. California. The 1962 case held that the Eighth Amendment prohibited the criminalization of the mere status of being a drug addict.
A lower court sided with the unhoused residents and the Ninth Circuit affirmed. The appeals court relied on its own 2019 that expanded on Robinson. In Martin v. Boise, the Ninth Circuit ruled that the Eighth Amendment forbids fines and short jail stints for public sleeping.
Grants Pass describes the challenge to its ordinances as a copycat of Martin. The city said the Ninth Circuit had misinterpreted Robinson, conflating being homeless with violating public sleeping rules.
“Robinson drew a bright line between punishment for mere status and punishment for conduct,” Theane D. Evangelis, an attorney with Gibson Dunn representing Grants Pass, wrote in the city’s brief. “The statute at issue there prohibited ‘be[ing] addicted’ to narcotics independent of their use and possession.”
The city said that the Ninth Circuit fundamentally misunderstood the cruel and unusual punishments clause. Grants Pass argues that the Eighth Amendment does not limit the scope of criminal responsibility an individual can face for involuntary acts. Grants Pass said its ordinances are constitutional under Robinson because they do not prohibit the status of homelessness, instead prohibiting specific acts.
Since Grants Pass believes its ordinances comply with Robinson, the city said overruling the precedent was unnecessary. However, the city encouraged the court to throw out Robinson if the justices believed it to be as broad as interpreted by Martin.
Grants Pass further argued that fines and jail terms do not qualify as cruel and unusual punishments.
“Had the Ninth Circuit focused on the method of punishment, the Eighth Amendment analysis would have been straightforward: The punishments at issue here for public camping are neither cruel nor unusual by any established measure,” Evangelis wrote.
How the Supreme Court rules on Grants Pass’ public sleeping ordinances will impact the entire country. The U.S. Department of Housing and Urban Development found that over 650,000 people experienced homelessness in January 2023 — a 12% increase since 2022.
Most states have seen homelessness rise at least 25% in the last five years. This issue is particularly prevalent in the Ninth Circuit’s jurisdiction, where more than one in 1,000 people are unhoused.
Two dozen states warned the justices against allowing courts to decide how to solve the homelessness crisis. Led by Idaho, the states argued that addressing these problems falls under the states’ general police power.
“Homelessness can be hard to look at. It is a stark reminder of our society’s shortcomings,” Idaho’s solicitor general Alan M. Hurst wrote. “But the Ninth Circuit’s approach has only aggravated the problem by forcing communities ‘to surrender the use of many of their public spaces (including sidewalks) to homeless encampments.’”
However, advocates for the unhoused argue that the laws states want to enforce do not actually deal with the crisis before them.
“Criminalization practices do not end homelessness,” Jesse Rabinowitz, communications and campaign director at the National Homelessness Law Center, said during a press call. “The person, after they are arrested, fined and jailed, is still living outside in the richest country in the history of the world.”
Advocates say the real solution relies on solving the housing crisis. Harvard University’s Joint Center for Housing Studies found that the housing affordability crisis is the primary driver of growing homelessness.
Ann Oliva, CEO of the National Alliance to End Homelessness, said nationwide there is a shortage of about 7.3 million units of available and affordable housing for those with the lowest incomes. Oliva said the solution to homelessness isn’t a secret because the government has proved it can solve this problem.
“We know how to end homelessness,” Oliva said. “As a system, we cut homelessness among veterans in this nation in half with the approach of affordable housing coupled with the services people want and need to get into housing and maintain that housing over time.”
The justices will hear arguments on April 22.
Follow @KelseyReichmann
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