Supreme Court appears to favor Oregon city in dispute over homeless camping ban

(WASHINGTON) — A majority of Supreme Court justices on Monday appeared sympathetic to an Oregon city making it a crime for anyone without a permanent residence to sleep outside in an effort to crack down on homeless encampments across public properties.

The case, City of Grants Pass v. Johnson, carries enormous stakes nationwide as communities confront a growing tide of unhoused residents and increasingly turn to punitive measures to try to incentivize people to take advantage of social services and other shelter options.

“These generally applicable laws prohibit specific conduct and are essential to public health and safety,” argued the city’s attorney Theane Evangelis during oral arguments, which stretched more than two and a half hours.

The Ninth Circuit Court of Appeals said in a decision last year that a homeless camping ban amounts to “cruel and unusual punishment” under the 8th Amendment. But several members of the high court’s conservative majority took a critical view of that conclusion.

“Have we ever applied the Eighth Amendment to civil penalties?” asked a skeptical Justice Clarence Thomas.

Justice Amy Coney Barrett worried about where to draw the line, wondering aloud whether the Eighth Amendment could reasonably be invoked to prohibit punishment for hungry people who steal food or engage in other behaviors necessary for survival.

“How do we draw these difficult lines about, you know, public urination and those sorts of things?” she said.

Many appeared to reject claims that the Grants Pass ordinance and others like it criminalize a person based their experience of involuntary homelessness, rather than for a concrete action. Supreme Court precedent has said it’s unconstitutional to punish someone for a relatively immutable quality, like drug addiction.

“What if the person finds that person in a homeless state because of prior life choices or their refusal to make future life choices?” asked Justice Samuel Alito.

Some conservative justices, while empathetic to the plight of the unhoused, suggested that local officials — not courts — are best positioned to grapple with the complicated issue of homelessness.

“This is a serious policy problem,” said Chief Justice John Roberts, “and it’s a policy problem because the solution, of course, is to build shelter to provide shelter for those who are otherwise harmless. But, municipalities have competing priorities … Why would you think this these nine people are the best people to judge and weigh those policy judgments?”

The court’s three liberal justices — clearly breaking with the majority of justices — forcefully defended the rights of homeless people to camp in public places, likening the Grants Pass law to cruelly punishing someone’s basic need.

“Sleeping is a biological necessity,” noted Justice Elena Kagan. “Presumably, you would not think it’s okay to criminalize breathing in public.”

“Sleeping that is universal, that is a basic function,” echoed Justice Ketanji Brown Jackson. “What I don’t understand is in this circumstance why that particular state is being considered ‘conduct’ for the purpose of punishment.”

“Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this?” asked Justice Sonia Sotomayor. “Where are they supposed to sleep? Are they supposed to kill themselves not sleeping?”

Backers of the law say many individuals who’ve camped in city parks have chosen not to take an available bed in the town’s Gospel Rescue Mission — a private shelter in city limits — which is only half full but requires residents to attend worship services, give up pets and pledge not to smoke or drink.

The lead plaintiff in the case refused a shelter bed because she wanted to remain outside with her dog. Grants Pass has no public homeless shelters.

Chief Roberts asked whether a nearby town’s shelter capacity, or whether a person’s decision to decline a bed, should be taken into consideration.

“Let’s say there are five cities all around Grants Pass and they all have homeless shelters, and yet the person wants to stay [in the camp]?” Roberts asked. “Can that person be given a citation?”

Justice Alito questioned the practicality of determining the number available beds before a citation is issued to a person sleeping in a park, suggesting the lower court decision created an unworkable situation for law enforcement.

“What is an individual police officer supposed to do?” he asked. “Count the number of people who are getting ready to sleep outside for the night, and then ask each one of them whether you’ve tried to find a bed at a shelter?”

Pressing the limits of the constitutional argument against the Oregon city’s ordinance, Justice Neil Gorsuch asked if there might be a right to defecate and urinate in public if bathrooms aren’t available to the homeless.

Key to the argument is whether Grants Pass treats homelessness as a “status.” Doing so could run afoul of a 1962 case, Robinson v. California, which held that it violated the Eighth Amendment to make drug addiction as a “status” illegal.

“Homelessness is not something that you do. It’s just something that you are,” argued attorney Kelsi Corkran, representing the homeless plaintiffs.

The Oregon law’s defenders say the ordinance merely criminalizes the conduct of camping in public, not the fact that the camper has no home. They also argue that the state allows for a “necessity” defense, which those charged with violating the city’s ordinance could pursue if they could show they truly had nowhere else to go.

The Biden administration is asking the court to remand the case for further evidentiary findings before a final ruling is made.

A decision is expected by the end of June.

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