Washington — The Supreme Court on Monday wrestled with the constitutionality of local laws that ban public camping in a dispute over whether an Oregon city’s rules aimed at addressing homelessness violate the Eighth Amendment’s prohibition on cruel and unusual punishment.
The case is the most significant involving homelessness to come before the nation’s highest court in decades, and its outcome could impact how cities and states respond to high rates of homelessness that have given rise to encampments on public property.
The dispute involves the constitutionality of laws that punish homeless people with civil citations for camping on public property when they have nowhere else to go. Arguments come as the nation confronts a spike in homelessness driven in part by high housing costs, and a ruling is likely to reach beyond the borders of the Oregon city at the center of the dispute.
There were an estimated 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.
At the center of the case is Grants Pass, a city of roughly 40,000 in southern Oregon with ordinances that bar camping or sleeping on public property or in city parks. The city’s rules define “campsite” as “any place where bedding, sleeping bag, or other material used for bedding purposes, or any stove or fire is placed.”
Violators face 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.
During more than two hours of arguments, the justices appeared divided over whether Grants Pass went too far with its rules, and they struggled with where to draw the line for what a city can do to address homelessness before it becomes a constitutional violation.
“How do we draw these difficult lines” of whether the Eighth Amendment would prohibit a municipality from punishing other acts like public urination if there are no facilities available or trespassing, asked Justice Amy Coney Barrett.
Some of the justices also seemed concerned with the notion that federal judges would be considering city policies designed to address homelessness, instead of local officials.
“Judges across the country are now going to superintend this under the Eighth Amendment,” said Justice Neil Gorsuch.
It was a concern echoed by Chief Justice John Roberts and Justice Elena Kagan.
“Many people have mentioned this is a serious policy problem, and it’s a policy problem because the solution of course is to build shelter, to provide shelter for those who are otherwise harmless,” Roberts said. “But municipalities have competing priorities. What if there are lead pipes in the water? Do you build the homeless shelter or do you take care of the lead pipes? What if there isn’t enough fire protection? Which one do you prioritize? Why would you think that these nine people are the best people to judge and weigh those policy judgments?”
Kagan asked Deputy Solicitor General Edwin Kneedler, who argued on behalf of the Biden administration, “Where is the line where the city can say our legitimate municipal interests can come in and say as to that, as to that, you can’t do that?”
“How does the court make these judgments?” she said. “These are tough judgments and usually they’re the kind of judgments that we think of as municipal officials make them.”
Still, Kagan and the two other liberal justices, Sonia Sotomayor and Ketanji Brown Jackson, sharply probed a lawyer arguing on behalf of Grants Pass about how the ordinances did not criminalize homelessness.
“For a person who has no place to go, sleeping in public is kind of like breathing in public,” Kagan said.
She acknowledged that the issue of homelessness is a “super hard policy problem” for all municipalities, but said the rules in Grants Pass sweep too broadly.
“Your statute says that a person cannot take himself and himself only and take a blanket and sleep some place without it being a crime,” Kagan said. “It just seems like you’re criminalizing a status.”
Sotomayor asked where homeless people would go “if every city every village, every town lacks compassion and passes a law identical to this? Where are they supposed to sleep?”
Jackson said it seems “both cruel and unusual to punish people for acts that constitute basic human needs.”
“We’re talking about sleeping,” she said. “That is universal, that is a basic function.”
The challenge to the Grants Pass ordinances
The case before the Supreme Court dates back to 2018, when 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 protections against cruel and unusual punishment.
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.”
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.
Grants Pass officials appealed the ruling to the Supreme Court, arguing in a filing that “modest” fines and short jail terms for camping on public property are not cruel and unusual punishments under the Eighth Amendment.
Theane Evangelis, the lawyer representing the city, told the justices during arguments that the 9th Circuit’s decision tied the city’s hands by “constitutionalizing the policy debate” over how to address growing encampments, which she said present harms to the public.
If the challengers prevail, Evangelis said Grants Pass “will be forced to surrender its public spaces.”
“When the 9th Circuit constitutionalized this area, it left cities with really no choice: either keep building enough shelter that may or may not be adequate or suitable to someone’s preferences or be force to give up all of your public spaces. That is what’s happened,” she said.
But Kelsi Corkran, who argued on behalf of the challengers, said the ordinances “by design make it physically impossible for homeless people to live in Grants Pass without facing endless fines and jail time.”
She said the city’s rules punish people based on their status, which is considered cruel and unusual under the Eighth Amendment.
“All the ordinances do is turn the city’s homelessness problem into someone else’s problem by forcing its homeless residents into other jurisdictions,” Corkran said, adding that the 9th Circuit’s order still leaves the city with tools to address homelessness, such as imposing time, place and manner restrictions on when and where homeless people sleep.
In court filings, lawyers representing the homeless population in Grants Pass accused the city of punishing them 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 Supreme Court’s arguments
During the oral arguments, Kavanaugh and some of the conservative justices suggested that homeless people facing citations could raise a “necessity defense” under state law as a justification for violations.
Still, Kavanaugh raised concerns that in Grants Pass, there are more homeless people than there are available shelter beds and questioned whether there should be a different constitutional rule in that circumstance.
“The law here, how does it help if there’s not enough beds for the number of homeless people in the jurisdiction,” he asked.
Kavanaugh also told Evangelis that imposing criminal penalties on a homeless person for sleeping in a public space does not necessarily ensure their circumstances will be improved.
“When you get out of jail, what’s going to happen then? You still don’t have a bed available so how does this help?” he asked. “If you run through that cycle and end up in jail for 30 days, then you get out, you’re not going to be better off than you were before in finding a bed … if there aren’t beds available in the jurisdiction.”
Barrett, meanwhile, asked Kneedler how the federal government addresses homeless encampments, such as a 70-person encampment in a Washington, D.C., park that was cleared last year.
Kneedler, representing the Biden administration, said that instance was the “gold standard” of how to address homeless encampments and said there was extensive cooperation between the National Park Service and District of Columbia. Still, he expressed concerns about what could follow if Grants Pass is allowed to enforce its ordinances.
“If Grants Pass can do this, so could every other city, so could a state do it statewide and eventually a homeless person would have no place to be,” Kneedler said.
Efforts to address a homelessness crisis
In addition to the Biden administration, the dispute attracted input from a range of advocacy and law enforcement organizations, cities, states and members of Congress.
The Justice Department said 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,” the Biden administration said.
Several major cities have asked the justices 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.