Washington — The Supreme Court is hearing arguments Monday in a dispute over whether laws that ban public camping violate the Constitution’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. 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.
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.”
But the three liberal justices, Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson, were quick to pepper a lawyer arguing on behalf of the city 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,” Justice Elena 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 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.”
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
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 protections against 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.
Grants Pass officials appealed the ruling to the Supreme Court, 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.
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 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,” 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.
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.