Vol. 39 No. 10 SUPREME COURT REVERSES OREGON HOMELESSNESS CASE, FINDS PUBLIC CAMPING LAWS DO NOT CONSTITUTE “CRUEL AND UNUSUAL PUNISHMENT” PROHIBITED BY THE EIGHTH AMENDMENT

Today in City of Grants Pass v. Johnson,[1] the United States Supreme Court ruled that the City of Grants Pass did not violate the Constitution’s prohibition against cruel and unusual punishment when enforcing anti-camping ordinances against homeless individuals.  Additionally, the Supreme Court’s ruling overturns Martin v. Boise, a 2018 decision by the Court of Appeals for the Ninth Circuit, which held that the Eighth Amendment’s Cruel and Unusual Punishments Clause bars cities from enforcing public-camping ordinances like the ones enacted in Grants Pass whenever the number of homeless people in a jurisdiction exceeds the number of “practically available” shelter beds.

Background

In a prior decision, Martin v. Boise, 920 F. 3d 584 (2019), the Ninth Circuit Court of Appeals held that the Eighth Amendment’s Cruel and Unusual Punishments Clause bars cities from enforcing public-camping ordinances like these against homeless individuals whenever the number of homeless individuals in a jurisdiction exceeds the number of “practically available” shelter beds.  920 F. 3d 584, 617.  After Martin, suits against Western cities, like Grants Pass, proliferated.

Grants Pass, Oregon, is home to roughly 38,000 people, about 600 of whom are estimated to experience homelessness on a given day.  Like many local governments across the Nation, Grants Pass has public camping laws that restrict encampments on public property.  The Grants Pass Municipal Code prohibits activities such as camping on public property or parking overnight in the city’s parks.[2]  Initial violations can trigger a fine, while multiple violations can result in imprisonment.

Plaintiffs (respondents here) filed a class action on behalf of homeless people living in Grants Pass, claiming that the city’s ordinances against public camping violated the Eighth Amendment.  The District Court certified the class and entered a Martin injunction prohibiting Grants Pass from enforcing its laws against homeless individuals in the city.  Applying Martin’s reasoning, the District Court found everyone without shelter in Grants Pass was “involuntarily homeless” because the city’s total homeless population outnumbered its “practically available” shelter beds.  The beds at Grants Pass’s charity-run shelter did not qualify as “available” in part because that shelter has rules requiring residents to abstain from smoking and to attend religious services.

A divided panel of the Ninth Circuit affirmed the District Court’s Martin injunction in relevant part.  Grants Pass filed a petition for certiorari.  Many states, cities, and counties from across the Ninth Circuit urged the Supreme Court to grant review to assess both Martin itself and Grants Pass specifically.  Jones Mayer filed an amicus curiae brief on behalf of California State Sheriffs’ Association, California Police Chiefs Association, Washington Association of Sheriffs & Police Chiefs, and the Cities of Encinitas, La Habra, Placentia, San Juan Capistrano, Whittier, West Covina and Westminster, urging that both Martin and Grants Pass be overturned.

Discussion

United States Supreme Court Justice Gorsuch delivered the opinion of the Court.  The Supreme Court first discussed the broad scope of the issue, noting that many cities across the Western United States face a homelessness crisis.  According to the federal government, homelessness in this country has reached its highest levels since the government began reporting data on the subject in 2007.  California alone is home to around half of those in this Nation living without shelter on a given night.  By one estimate, perhaps 78 percent of the unsheltered suffer from mental-health issues, while 75 percent struggle with substance abuse.[3]  As the number of homeless individuals has grown, the number of homeless encampments across the country has increased as well, “in numbers not seen in almost a century.”[4]

The Supreme Court explained in Grants Pass that the Ninth Circuit’s decision in Martin, holding that enforcement of ordinances such as anti-camping laws violated the Eighth Amendment, has led to both a proliferation of homeless encampments as well as significant uncertainties in cities as to what laws can be enforced, when and against whom.  Further, the Supreme Court noted that the Eighth Amendment simply was not an appropriate vehicle by which to challenge these local ordinances.

The Supreme Court explained that the Eighth Amendment’s Cruel and Unusual Punishments Clause “has always been considered, and properly so, to be directed at the method or kind of punishment” a government may “impos[e] for the violation of criminal statutes.” Powell v. Texas, 392 U. S. 514, 531–532 (1968) (plurality opinion).  It was adopted to ensure that the new Nation would never resort to certain “formerly tolerated” punishments considered “cruel” because they were calculated to “ ‘superad[d]’ ”  “ ‘terror,    pain, or disgrace,’ ” and considered “unusual” because, by the time of the Amendment’s adoption, they had “long fallen out of use.”[5]  

In holding that the enforcement of generally applicable laws regulating camping on public property does not constitute “cruel and unusual punishment” prohibited by the Eighth Amendment, the Supreme Court noted that the Eighth Amendment was a poor foundation on which to rest the kind of decree the plaintiffs sought in Grants Pass and the Ninth Circuit has endorsed since Martin.  The Cruel and Unusual Punishments Clause focuses on the question what “method or kind of punishment” a government may impose after a criminal conviction, not on the question whether a government may criminalize particular behavior in the first place.  Powell, 392 U. S., at 531–532.

With this history in mind, the Supreme Court found that the “punishments” imposed by Grants Pass at issue in the case did not qualify as cruel and unusual.  The city imposed only limited fines for first-time offenders, an order temporarily barring an individual from camping in a public park for repeat offenders, and a maximum sentence of 30 days in jail for those who later violate an order.

The Supreme Court noted that many governments agree that policymakers need access to the full panoply of tools in the policy toolbox to tackle the complicated issues of housing and homelessness.  However, rather than help alleviate the homelessness crisis, many cities believe injunctions based on the Ninth Circuit’s decision in Martin v. Boise have inadvertently contributed to it.  For many cities, the numbers of unsheltered homelessness they represent have increased dramatically in the Ninth Circuit since Martin.  In overturning both Grants Pass and Martin, the Supreme Court has given cities and police agencies back a significant tool taken away in Martin.  That is, cities and police agencies can now enact and enforce camping bans even when shelter space is unavailable.

HOW THIS AFFECTS YOUR AGENCY

The Supreme Court summarized:

Homelessness is complex.  Its causes are many.  So may be the public policy responses required to address it.  At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses.  It does not.  Almost 200 years ago, a visitor to this country remarked upon the “extreme skill with which the inhabitants of the United States succeed in proposing a common object to the exertions of a great many men, and in getting them voluntarily to pursue it.” 2 A. de Tocqueville, Democracy in America 129 (H. Reeve transl. 1961).  If the multitude of amicus briefs before us proves one thing, it is that the American people are still at it.  Through their voluntary associations and charities, their elected representatives and appointed officials, their police officers and mental health professionals, they display that same energy and skill today in their efforts to address the complexities of the homelessness challenge facing the most vulnerable among us.

Yes, people will disagree over which policy responses are best; they may experiment with one set of approaches only to find later another set works better; they may find certain responses more appropriate for some communities than others.  But in our democracy, that is their right.  Nor can a handful of federal judges begin to “match” the collective wisdom the American people possess in deciding “how best to handle” a pressing social question like homelessness.  Robinson, 370 U. S., at 689 (White, J., dissenting).  The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy.

The Supreme Court’s decision provides considerable discretion as to a municipality’s ability to enforce quality of life laws applicable to all persons, including those who are homeless.  The Supreme Court observed, for example, that anti-camping ordinances applied to all persons, not just the homeless.  Other persons would equally be prohibited from engaging in conduct that violates such laws.  As a result of this ruling, municipalities may now proceed with enforcement of municipal provisions concerning anti-camping, fire restrictions in certain areas, and blocking of sidewalks by persons or structures, among others.  The freedom to pursue thoughtful and fair laws will provide the flexibility to municipalities to attempt to address issues negatively affecting both those who are housed and those who are unhoused in a supportive, productive manner.

Jones Mayer is proud to have had the opportunity on behalf of our clients to play a role in assisting the Court in making its decision in this case.

As always, if you wish to discuss this matter in greater detail, please feel free to contact Denise Rocawich (dlr@jones-mayer.com), the author of the amici brief filed in this case, Gary Kranker (gsk@jones-mayer.com), a litigator involved in several cases concerning homelessness issues, or me (jrt@jones-mayer.com) at (714) 446–1400 or via email at our respective emails.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.


[1] City of Grants Pass, Oregon v. Johnson, et al., United States Supreme Court, No. 23-175, June 28, 2024.

[2] See Grants Pass Municipal Code sections 5.61.030, 6.46.090(A)–(B).

[3] See J. Rountree, N. Hess, & A. Lyke, Health Conditions Among Unsheltered Adults in the U. S., Calif. Policy Lab, Policy Brief 5 (2019).

[4] L. Dunton et al., Dept. of Housing and Urban Development, Office of Policy Development & Research, Exploring Homelessness Among People Living in Encampments and Associated Cost 1 (2020) (2020 HUD Report).

[5] Bucklew v. Precythe, 587 U. S. 119, 130 (2019) (citing 4 W. Blackstone, Commentaries on the Laws of England 370 (1769) (Blackstone)).