Supreme Court Set to Decide Case That Could Criminalize Homeless Encampments
The U.S. Supreme Court heard oral arguments Monday regarding a case that could have major implications for how communities address homelessness.
At issue in the case is whether a city ordinance in Grants Pass, Oregon, against sleeping and camping in public spaces, with a fine of $250 and jail time, amounts to a violation of the guarantee against “cruel and unusual punishment” under the Eighth Amendment to the U.S. Constitution.
“City officials stepped up enforcement of local laws in 2013 after residents began to complain about people sleeping, urinating and defecating outside,” according to The New York Times.
The Ninth U.S. Circuit Court of Appeals ruled in September 2022 that the Grants Pass laws were a violation of the Eighth Amendment, given there is no shelter in the small city of approximately 40,000 residents for the homeless to go.
The New York Times, NPR and other media outlets reported that the majority of Supreme Court justices Monday appeared inclined to give local communities like Grants Pass greater deference than the Ninth Circuit ruling would allow.
Chief Justice John Roberts noted the municipalities have competing priorities, like fire protection and water infrastructure systems, that they may deem take precedence over building a homeless shelter.
“Why would you think that these nine people [sitting on the Supreme Court] are the best people to judge and weigh those policy judgments?” he asked.
U.S. Deputy Solicitor General Edwin Kneedler, arguing for the Department of Justice in favor of upholding the Ninth Circuit’s ruling, conceded that forcing communities to build more homeless shelters is not necessarily the solution.
He further stated that communities should be able to enact “time, place, and manner” restrictions in terms of where the homeless can sleep. But, Kneedler contended, they should not be allowed to deny people the ability to sleep in any public places within their city limits, given it is a basic necessity of life.
Roberts followed up, probing just how far the necessity argument could be taken.
“Eating is a basic human function, as well, that people have to do, just like sleeping,” the chief justice said. “So if someone is hungry and no one is giving him food, can you prosecute him if he breaks into a store to get something to eat?”
“Absolutely,” Kneedler responded. “Breaking into a store is a common crime that not everyone engages in, not like sleeping.” he added.
Kneedler granted that the Eighth Amendment would not be a defense from prosecution for a homeless person who breaks into a store to steal food.
“There’s a certain amount of common sense and practicality to this,” he said.
Kelsi Corkran, attorney for Gloria Johnson, who is one of the homeless people who brought the suit against the city ordinances, told the court, “When shelter is available, the ordinances are enforceable, because they punish the conduct of not going to the shelter, as opposed to the status of homelessness.”
Justice Amy Coney Barrett asked Corkran what the distinction would be regarding enforcing laws against public urination and trespassing versus the anti-camping ordinances at issue.
“If you had a law where homeless people cannot urinate or defecate anywhere in city limits, then I think it starts to look like this case,” Corkran answered, but suggested there are usually facilities people can use, so those ordinances could be enforced against homeless people who break the law.
“The sleeping prohibition goes more directly to the status of homelessness than urination or defecation” in public, she said.
USA Today reported that liberal justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — all appeared ready to prevent Grants Pass from enforcing its homeless ordinances.
Sotomayor asked Theane Evangelis, the attorney for Grants Pass, to confirm that the intent of the ordinances is “to remove every homeless person and give them no pubic space” and not allow people to sleep with a blanket in public.
The lawyer responded, “We think that it is harmful for people to be living in public spaces on streets and in parks, whatever bedding materials … we think that that’s not compassionate.”
Sotomayor interjected: “Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this? Where are they supposed to sleep? Are they supposed to kill themselves, not sleeping?”
Evangelis noted those charged under the crimes could raise a necessity defense. Necessity would suggest there was no reasonable alternative, certainly in the short term.
“This is a complicated policy question,” the attorney acknowledged.
“What’s so complicated about letting someone somewhere sleep with the blanket in the outside, if they have nowhere to sleep?” Sotomayor asked.
“The laws against defecation, the laws against keeping things unsanitary around yourself, those have all been upheld” as permissible under the Ninth Circuit’s ruling, the justice further noted.
Democratic California Gov. Gavin Newsom argued in an amicus brief to the Supreme Court that the Ninth Circuit rulings have interfered with communities trying to clear encampments for public safety purposes.
On Monday, he posted on X, “The courts have tied the hands of state & local government to confront homelessness.”
“The Supreme Court has an opportunity to strike a balance that allows officials to enforce reasonable limits on public camping while treating folks with compassion,” Newsom added.
The courts have tied the hands of state & local government to confront homelessness.
The Supreme Court has an opportunity to strike a balance that allows officials to enforce reasonable limits on public camping while treating folks with compassion.https://t.co/TQE1EMQ25w
— California Governor (@CAgovernor) April 22, 2024
In his amicus brief, the governor cited Ninth Circuit’s rulings in Coalition of Homelessness v. the City of San Francisco (2024), in addition to the Grants Pass case and Martin v. City of Boise, Idaho (2019) writing the result of the rulings taken together is “to allow people ‘to sleep anywhere, anytime in public in the City of San Francisco’ unless and until adequate shelter is provided.”
The circuit court has in effect created a constitutional right for people “to erect structures and camp on public property,” he wrote.
San Francisco topped a list of the fastest-declining cities in the nation published earlier this year.
During a debate with Newsom in November, Florida Gov. Ron DeSantis pulled out a “poop map” of the city.
“This is an app where they plot the human feces that are found on the streets of San Francisco,” DeSantis said. “And you see how almost the whole thing is covered.”
This is a map of San Francisco. There’s a lot of plots on that. You may be asking ‘what is that plotting?’
This is an app where they plot the human feces that are found on the streets of San Francisco.
That is what has happened in one of the previous greatest cities this… pic.twitter.com/otOz7dQxei
— Ron DeSantis (@RonDeSantis) December 1, 2023
Public health issues surrounding homeless encampments have been a major concern for state and local officials.
An outbreak of typhus occurred among the homeless in Los Angeles in 2019. The disease, associated with the squalor of medieval times, is spread through fleas and rats.
There were also outbreaks of a rare bacterial disease called shigella and trench fever among Washington state’s homeless. Shigella is spread through fecal matter, and its symptoms include severe diarrhea, high fever, fatigue and vomiting.
Cases of shigella also spiked in Portland, Oregon, earlier this year.
California, Washington state, and Portland are all part of the Ninth Circuit’s jurisdiction.
USA Today reported the number of homeless grew by 12 percent in 2023 to over 650,000.
There are no easy fixes, but the Supreme Court appears poised to empower communities, giving them more leeway to address the issue more aggressively in their localities.
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