The U.S. Supreme Court on Friday reversed lower court rulings, finding that public camping restrictions issued by southern Oregon’s Grants Pass do not constitute “cruel and unusual punishment.”
The court split 6-to-3 largely along ideological lines in a decision that likely will have significant reverberations around the country.
Justice Neil M. Gorsuch wrote for the majority that the enforcement of laws regulating camping on public property is “commonplace” and not barred by the Eighth Amendment. He found that homelessness is “complex” and that the city’s limited fines for first-time offenders, bans from public parks for repeat offenders and a maximum of 30 days in jail for any violators are punishments that don’t add “terror, pain or disgrace.”
Citing a brief from California Gov. Gavin Newsom, Gorsuch wrote that many broadly agree that “policymakers need access to the full panoply of tools in the policy toolbox” and must “have the latitude” to tackle the complicated issues of homelessness and lack of housing. The Constitution’s Eighth Amendment does not authorize federal judges to “dictate this Nation’s homelessness policy,” the opinion said.
The court found that prior rulings by the 9th U.S. Circuit Court of Appeals in the Grants Pass case and another case in Boise -- which both narrowed what cities can do to restrict public sleeping on streets, parks and sidewalks -- may have inadvertently increased the homelessness problem by weakening how cities can respond.
“In Portland, for example, residents report some unsheltered persons ‘often return within days’ of an encampment’s clearing,” understanding that case law has prohibited the city from taking more stringent measures, Gorsuch wrote.
And while homeless plaintiffs who challenged the Grants Pass laws argued that the city unfairly issued fines and trespass notices only to homeless people, Gorsuch said they didn’t make a specific legal challenge of such “selective prosecution,” so he couldn’t address that issue though he suggested the argument had merit.
In a strongly worded dissent, Justice Sonia Sotomayor called sleep a “biological necessity, not a crime” and said the city’s laws punish people with no access to shelter for the status of being homeless.
“That is unconscionable and unconstitutional,” she wrote, joined by Justices Elena Kagan and Ketanji Brown Jackson.
“It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles,” Sotomayor wrote. “Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.”
The court’s opinion was released just over two months after it heard oral arguments.
The case has been touted as one of the most significant involving homelessness to come before the court in decades and has been closely watched by state and city officials across the country grappling with how to address a growing homeless crisis.
It arose when several homeless people filed suit in federal court against Grants Pass in 2018, alleging the city’s aggressive enforcement of its public camping and sleeping ordinances were intended to banish them from town. Police repeatedly told them to “move along” and then issued tickets that carried fines starting at $295, park exclusions and then criminal trespass charges. The ordinances barred people from using blankets, pillows or cardboard boxes for protection from the elements while sleeping within the city limits.
A federal district judge in Medford blocked the city from enforcing its public camping laws during the day without a 24-hour notice and stopped it from enforcing the rules at night.
Then a sharply divided 9th U.S. Circuit Court of Appeals upheld the district judge’s ruling, finding the Grants Pass set of ordinances criminalized the status of being homeless in violation of the Eighth Amendment’s ban on cruel and unusual punishment, and the city petitioned for the Supreme Court’s review.
Grants Pass Mayor Sara Bristol applauded the Supreme Court opinion.
“This lawsuit was about whether cities have a right to enforce camping restrictions in public spaces, and I’m relieved that Grants Pass will be able to reclaim our city parks for recreation,” she said by email. “Homelessness is a complex issue and our community has been trying to find solutions. The city council will need some time to review this decision, as well as state law, and discuss our steps moving forward.”
Ed Johnson, litigation director at the Oregon Law Center who was the lead counsel for the homeless plaintiffs who challenged the Grants Pass laws, and Jesse Rabinowitz, a spokesperson for the National Homelessness Law Center, both said they are profoundly disappointed in the court’s decision.
“We are disappointed that a majority of the Court has decided that our Constitution allows a city to punish its homeless residents simply for sleeping outside with a blanket to survive the cold when there is nowhere else for them to go,” Johnson said in a statement.
Johnson pledged to continue to mount legal challenges to such “policing and punishment” policies used against vulnerable people who have nowhere to sleep in cities and towns. He said the court only addressed his clients’ claims that the city’s actions constituted cruel and unusual punishment, but didn’t consider their claims that Grants Pass issued excessive fines or that its anti-camping ordinances were too vague.
He said he expects asking the federal judge in Medford, where the case began, to reconsider those claims as the case is sent back to the district court.
“The legal fight on this issue will continue today and every day until cities stop punishing their homeless residents who are trying to survive,” he said.
Rabinowitz called the court’s decision a “severe blow” to the rights of homeless people.
“Arresting or fining people for trying to survive is expensive, counterproductive, and cruel,” he said. “While we are enraged, we are not surprised that this Court has again put the needs of the rich and powerful before the needs of everyday people struggling to get by.”
The National Homelessness Law Center said the ruling will “make homelessness worse in Grants Pass and nationwide” and called on the Biden administration and Congress to invest at least $356 billion in the next year “to ensure that everybody has safe, decent housing that they can afford.”
In April during more than two hours of lively argument, conservative justices questioned why federal judges should weigh into municipal policy decisions. They wondered why those affected by camping ordinances in Grants Pass can’t raise the defense in state courts that their individual circ*mstances have left them with nowhere else to sleep once they’re fined or charged with a crime, instead of seeking a preemptive broad ban on the city’s ordinances.
The liberal justices, in turn, hammered the city’s lawyer Theane D. Evangelis, who claimed that homelessness isn’t a status, and that the city wasn’t punishing people based on their status.
During the arguments, Kagan called sleeping a human necessity, adding, “It’s sort of like breathing.” She said she found the city’s stance “quite striking” and “off” track and that the Eighth Amendment is clear that it protects punishing people based on their status versus their conduct.
The 9th Circuit’s rulings in the Grants case and a prior case in Boise rested on a constitutional principle from the 1962 U.S. Supreme Court decision in Robinson v. California, which found that the Eighth Amendment prohibits the government from punishing people based on their “condition or status.” In that case, a man could not be punished for being addicted to drugs, only for illegally using drugs.
Gorsuch, in the majority opinion, said no one asked the Supreme Court to reconsider Robinson. The majority found that Grants Pass’ public camping ordinances don’t criminalize status but forbid actions like occupying a campsite on public property “for the purpose of maintaining a temporary place to live.”
“Under the city’s laws, it makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building,” Gorsuch wrote.
The majority found that states are free to add further protections for homeless people, citing Oregon’s law adopted in 2021 that allows for “objectively reasonable” time, place and manner limits on sitting, lying or sleeping outside. The 9th Circuit’s ruling in the Boise case, which restricted anti-camping ordinances if cities don’t have enough shelter beds for the homeless, was based on “back-of-the-envelope arithmetic,” that was “all but impossible to administer in practice,” Gorsuch wrote.
“Homelessness is complex. Its causes are many. So may be the public policy responses required to address it,” the opinion said. “At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not.”
Sotomayor countered in dissent that many local governments have made criminalization a “frontline response” to homelessness, which can cause a “destabilizing cascade of harm.”
“For people with nowhere else to go, fines and jail time do not deter behavior, reduce homelessness, or increase public safety,” she wrote.
She argued that the Eighth Amendment is not limited to outlawing “medieval tortures” and that the majority has misunderstood the findings in the Robinson case.
“Grants Pass’s Ordinances criminalize being homeless,” Sotomayor wrote. “The majority protests that the Ordinances ‘do not criminalize mere status.’...Saying so does not make it so. Every shred of evidence points the other way. The Ordinances’ purpose, text, and enforcement confirm that they target status, not conduct. For someone with no available shelter, the only way to comply with the Ordinances is to leave Grants Pass altogether.”
Justice Clarence Thomas, in a separate concurring opinion, said he joined the majority opinion but argued that the 1962 Robinson case - which found a man could not be punished for being addicted to drugs - was wrongly decided. He argued that the Supreme Court 62 years ago failed to analyze the “original meaning” or text of the Eighth Amendment and instead considered “contemporary human knowledge” in deciding that a criminal offense involving an addiction would be considered cruel and unusual punishment under the amendment.
“Modern public opinion is not an appropriate metric for interpreting the Cruel and Unusual Punishments Clause - or any provision of the Constitution for that matter,” Thomas wrote.
Johnson, the lawyer who represented those who challenged the Grants Pass laws, said Oregon’s relatively recent law that allows restrictions as to time, place and manner of public camping and sitting, lying or sleeping outside will prevent Grants Pass - and any other city in the state - “from doing what Grants Pass wants to do,” which is make it illegal to prevent homeless people from sleeping “on every inch of property, 24 hours a day.” The state adopted the law after Grants Pass passed its anti-camping and sleeping ordinances.
“We intend to use that law which is more important than ever to protect homeless people in the state of Oregon,” he said. “I would encourage other states, especially after today’s decision to look at the wisdom of that policy decision and to pass similar laws.”
During arguments before the Supreme Court, the justices appeared to struggle with where to draw the distinction between a person’s status and conduct in trying to determine what’s “cruel and unusual punishment” under the Eighth Amendment.
Deputy U.S. Solicitor General Edwin S. Kneedler said the Grants Pass laws went too far, calling the laws the “equivalent of banishment” for people who have nowhere to sleep.
But he urged the court to throw out the “involuntary homeless” class certification in the case and instead require cities and law enforcement officers to make individual assessments of whether people actually have nowhere else to stay before issuing any citations, fines, park exclusions or trespass arrests.
Advocates for homeless people who have anxiously awaited the ruling said no opinion from the nation’s high court will end homelessness. What’s needed is housing and supportive services, they said.
There are more than 256,000 people living unsheltered in the United States on any given night and a shortage of 7.3 million units of affordable housing, according to Ann Oliva, chief executive officer of the National Alliance to End Homelessness.
In 2022, about 17,000 people became homeless each week for the first time over the course of the year, according to the U.S. Department of Housing and Urban Development.
Oliva called for a need to fund safe and affordable housing and wrap-around services in the long term, and in the short-term, support for housing outreach, housing subsidies, safe parking sites with behavioral support and other services and low-barrier shelters.
“This decision sets a dangerous precedent that will cause undue harm to people experiencing homelessness and give free rein to local officials who prefer pointless and expensive arrests and imprisonment, rather than real solutions,” Oliva said. “This tactic has consistently failed to reduce homelessness in the past, and it will assuredly fail to reduce homelessness in the future.”
William Knight, a former public defender in Arizona who now works as decriminalization director for the National Homelessness Law Center, said the 9th Circuit court ruling in the Grants Pass case and Boise’s Martin case never provided “solutions to homelessness” but instead were “emergency backstops” for when cities like Grants Pass “were making things worse, much worse, by criminalizing homelessness.”
Helen Cruz, who was formerly homeless in Grants Pass for about six years and had racked up more than $2,000 in fines for sleeping in local parks, now lives at a church near a park and supports others who live on the city’s streets. She said people locally have “been on edge,” awaiting the Supreme Court ruling.
On Friday, she said she and others are “absolutely devasted.”
“They have taken any ounce of hope that the homeless community of Grants Pass had and stripped it right away from them,” she said. “What people don’t seem to understand is they don’t want to be in the parks.”
People living in tents or sleeping in parks “want a place to live, you know, and we all have that right to have a place to live,” she said.
Sara K. Rankin, professor at Seattle University’s School of Law and director of the Homeless Rights Advocacy Project, said the court’s decision is likely “to embolden cities to take more punitive approaches to involuntary homelessness even as we are enduring an escalating housing crisis.”
“The decision is crushing because it further denies vulnerable people even modest protections under the 8th Amendment of the US Constitution. However, it does not affect the ability of civil rights attorneys to fight punitive laws using other provisions of the federal constitution, various state constitutional provisions -- including state versions of the 8th Amendment, and various federal and state statutes -- such as the Americans with Disabilities Act — among other avenues,” she said by email. “Rather than calming the waters, this decision has likely agitated a new cycle of punitive laws that will be met with new lawsuits.”
Attorneys for the League of Oregon Cities, the city of Portland and Washington state and Idaho city associations had argued in a joint brief before the Supreme Court that the 9th Circuit made an “extraordinary incursion into local autonomy” and turned judges “into townhall chancellors.”
Gorsuch cited the brief in the majority opinion, noting that even as some cities like Portland have expanded shelter capacity and other public services, their unsheltered populations have continued to grow. Between April 2022 and January 2024, over 70% of Portland’s approximately 3,500 offers of shelter beds to homeless individuals were declined, the brief’s citation said.
Portland is set to start enforcing its scaled-back homeless camping ban on Monday, nearly two months after the City Council unanimously approved the new ordinance to replace a more stringent measure tied up in court. The new rules require people who are offered shelter to accept it or face penalties and it directs homeless individuals that they must keep their camping area tidy if they can’t access shelter. The ordinance scales back the potential of a 30-day stint behind bars for violators to just seven days and emphasizes a preference to offer offenders diversion.
Jeffrey Selbin, a professor at the University of California, Berkeley School of Law and director for its Policy Advocacy Clinic, said both the majority opinion and dissent made clear the ruling “greenlighted” the criminalization of homelessness but also that state and local lawmakers “are not required to go down that path.”
He said local officials “can reject inhumane approaches” and state legislators can pass laws establishing minimum protections for people experiencing homelessness — as Oregon did after Grants Pass adopted its ordinances.
“This case will be a Rorschach test for elected officials,” he said. “Will they redouble their efforts to provide shelter and housing or fall back on laws that punish people for being homeless?”
-- Maxine Bernstein covers federal court and criminal justice. Reach her at 503-221-8212, mbernstein@oregonian.com, follow her on X @maxoregonian, or on LinkedIn.
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