Supreme Court Takes On the Constitutionality of Ordinances Against Homeless People

In City of Grants Pass v. Johnson, the Supreme Court addresses whether a city’s enforcement of generally applicable ordinances that regulate camping on public property constitutes “cruel and unusual punishment” prohibited by the Eighth Amendment.

The City of Grants Pass, Ore. (“City”), has a population of approximately 38,000, and of that population, somewhere around 600 persons are homeless, which exceeds the number of available shelter beds in Grants Pass. Grants Pass also has a one percent vacancy rate, meaning there are only a few housing options available, and no designated affordable housing, leading to “involuntary” homelessness of the unhoused population. Several provisions of the Grants Pass Municipal Code generally prohibit individuals from camping or sleeping in public spaces as, according to the City’s Code, a matter of individual public safety. Violation of these ordinances may result in civil penalties starting at $295.

A federal district court certified a class of plaintiffs of homeless people living in Grants Pass and held that based on the unavailability of shelter beds, the City’s enforcement of its anti-camping and anti-sleeping ordinances violated the Eighth Amendment’s cruel and unusual punishment clause. A divided panel of the Ninth Circuit affirmed.

After the denial of a rehearing by the Ninth Circuit, the City of Grants Pass went to the Supreme Court which granted certiorari earlier this year. At issue is whether the enforcement of the city’s public camping ordinance against homeless people violates the Eighth Amendment’s prohibition of cruel and unusual punishment. The City argued in its brief to the Supreme Court that the Eighth Amendment regulates methods of cruel and unusual punishment, not criminal offenses.

During oral argument, Justice Thomas raised the question of whether the penalties for violating the public camping ordinances were civil or criminal and if the Eighth Amendment could be applied to civil penalties. Justice Sotomayor questioned whether the City wanted to overturn Robinson v. California, a 1962 Supreme Court decision holding that the Eighth Amendment’s ban on cruel and unusual punishment prohibited the state from criminalizing the “status” of substance addiction, and, as a result, punish the status of homelessness rather than the offense. The City of Grants Pass argued that cities nationwide relied on these types of ordinances to protect their public places. Justice Kavanaugh questioned how these ordinances would help if there weren’t enough shelter beds for the people experiencing homelessness. The challengers argued that the City of Grants Pass defines a “campsite” as anywhere a homeless person is within city limits with a blanket, making it virtually impossible for a homeless person to live in Grants Pass without facing some sort of violation of the ordinances. Justice Jackson was skeptical of the city’s argument and that it seemed cruel and unusual to punish people for acts like sleeping which are basic human needs. Justice Gorsuch also questioned if the Eighth Amendment was the proper way to approach this debate and if a necessity defense would better address the issue at hand.

Because “homelessness is a nationwide concern, this case will impact every American, particularly those who live in urban areas,” according to James Azadian, the co-leader of Dykema’s nationwide Appellate and Critical Motions Practice, who was quoted in the May 15, 2024, cover story by U.S. News & World Report.

Azadian expects that the court will uphold the ordinances to give cities discretion and autonomy they need to operate effectively.

But there is a twist worth considering, according to Azadian.

After the case was briefed and argued, encampments relating to the Israel-Palestine conflict have sprung up on college campuses and elsewhere throughout the country. While the justices are supposed to only analyze the arguments before them, they are not impervious to what is going on in the larger society. They will be thinking of the protest camps, the arrests and how future encampment cases may shift from Eighth to First Amendment claims as they decide this case, Azadian predicts.

This case was argued on April 22, 2024. A decision is expected by the end of the term. Stay tuned for Dykema’s client alert discussing the Court’s forthcoming opinion.

For more information, please contact Chantel Febus, James Azadian, Christopher Sakauye, Monika Harris, A. Joseph Duffy, IV, or Puja Valera.