As homelessness reaches record highs across the country, the U.S. Supreme Court is considering a case about the constitutionality of anticamping laws.
The southern Oregon city of Grants Pass adopted ordinances in 2013 that criminalized camping in public outdoor spaces, including sidewalks and streets. Gloria Johnson and several other homeless people sued the city, arguing that the ordinances violate the Eighth Amendment’s prohibition of cruel and unusual punishment.
Sleeping in a car in a parking lot for more than two consecutive hours is prohibited by ordinance, as well as the use of camp stoves for heat or to cook meals. The ordinances carry fines of $75 for illegal sleeping and $295 for camping, which increase to $160 and $537, respectively, if unpaid. People cited twice for violating park regulations can be banned from the park for 30 days. The city is experiencing a housing shortage and has a vacancy rate of about 1%, with most rental units costing at least $1,000 per month. An estimated 602 people were unhoused in the city of 40,000 in 2019, with another 1,045 people at risk of homelessness.
The outcome of this case will have national impact: In some coastal states, more than 4 of every 1,000 people are experiencing homelessness, with nearly 6 of every 1,000 people experiencing homelessness in Washington, D.C., the nation’s highest rate. Many cities use anticamping legislation to clear or relocate encampments despite not having enough capacity in shelters to take in people who have been forced to leave public parks, streets or sidewalks by law enforcement.
Lower Court Ruling
The 9th U.S. Circuit Court of Appeals ruled in favor of Johnson and prohibited Grants Pass from enforcing the ordinances at night and during some portions of the daytime. The court relied on the 2018 decision in Martin v. City of Boise, which found that the Eighth Amendment’s prohibition of cruel and unusual punishment prevents local governments from imposing criminal penalties on people experiencing homelessness for sitting or sleeping outside if the person has no access to shelter.
Grants Pass argued that the imposition of fines and short jail sentences is neither cruel nor unusual. The Eighth Amendment does not ban the levying of all fines, the city said, only those that could be considered excessive. In Robinson v. California, the Supreme Court ruled that the Eighth Amendment banned California from enforcing a law that criminalized being a drug addict—which is a status, not an act—but allowed the state to continue imposing criminal penalties on acts related to drug use, such as selling, consuming or possessing illegal substances. In the present case, the city argued, the ordinances being challenged criminalize only the act of so-called rough sleeping, or camping in outdoor public spaces, not the status of homelessness. The city argued the ruling in Martin prevents localities from addressing homelessness through deterrence and has led to increases in violent crime, drug overdoses, diseases, fires and hazardous waste across West Coast communities.
The respondents argued that Grants Pass’ wet weather conditions mean unhoused people must use items the ordinance prohibits, such as blankets and tents, to survive without access to housing or shelter. They argued that the Supreme Court has applied the Eighth Amendment to both criminal and civil penalties, but even if it didn’t, it would still apply in this case because repeated civil violations under the ordinances result in arrest and prosecution for criminal trespass.
The 9th Circuit found that the fines imposed by the ordinances were “grossly disproportionate to the gravity of the offense” and because the respondents already cannot afford housing, they “likely cannot pay these fines.” The lower court also explicitly stated that the holding did not prevent Grants Pass from implementing time and place restrictions for use of items prohibited by ordinance or enforcing other public health laws that may apply to the homeless population such as restricting littering, obstruction of public thoroughfares, public urination, drug use or violent crime. The respondents argue that the city has many other options at its disposal to address homelessness outside of criminalizing rough sleeping.
At oral argument, Justice Sonia Sotomayor focused on the policy implications of the case, asking the petitioner what would happen if all cities adopted similar ordinances, and characterizing Grants Pass’s actions as lacking compassion. Justice Clarence Thomas asked the city plainly whether this case involves a crime for being homeless, which the city denied.
The court will issue its decision case later in the term.
Nicole Ezeh is an associate legislative director in NCSL’s State-Federal Affairs Division.