Justices seem to take city’s side in homeless encampment regulation

The Supreme Court heard oral arguments Monday in a case that could answer the question about if and how homelessness can be policed.

The City of Grants, Oregon v. Johnson is set to examine overlapping laws in Grants Pass, Oregon, which outlawed sleeping and camping in public places. A pair of homeless people sued the city, claiming the law violated the Eighth Amendment protections from “cruel and unusual” punishment. Typically, the Eighth Amendment is invoked to protect against punishments, not laws.

The court appeared split along ideological lines during oral arguments. Some justices expressed concerns about punishing homeless people who don't have an alternative shelter solution, but there seemed to be general agreement that the issue shouldn't be decided by the courts.

The underlying debate relates to the 1962 case Robinson v. California, which ruled a person cannot be criminalized for being addicted to narcotics since that is an "involuntary state of being."

Theane Evangelis, a lawyer on behalf of Grants Pass, argued the 9th U.S. Circuit Court of Appeal's ruling against criminal penalties was a “failed experiment” and homelessness regulation is best left to local officials. Kelsi B. Corkran, a lawyer on behalf of the plaintiffs, argued the city’s laws simply push the issue of homelessness elsewhere.

The plaintiffs argued the city’s enforcement of the ban essentially criminalizes homeless people, as the city does not have shelters for them.

On the other hand, the Oregon city claimed that criminal charges, like unpaid fines for camping, are not protected under the Eighth Amendment, and warned not enforcing the fines could lead to an increase in homeless encampments nationwide.

Since 2018, the 9th Circuit in San Francisco has issued opinions that lawmakers like Gov. Gavin Newsom (D-CA) blamed for increasing homeless encampments. The 9th Circuit previously ruled Boise, Idaho, had violated the Constitution by imposing criminal penalties on homeless people sleeping outside or camping. It said a city must house its entire homeless population before giving out citations and fines. Lawyers on behalf of Grants Pass said the ruling made way for “sprawling encampments, rising deaths and widespread harms to the community, as localities are forced to surrender their public spaces.”

“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 said.

Throughout the arguments, several justices asked how the status of homelessness is defined.

"A number of us, I think, are having difficulty with the distinction between status and conduct. You can remove the homeless status in an instant if you move to a shelter, or situations otherwise change. And, of course, it can moved the other way as well, if you're kicked out of the shelter or whatever," Chief Justice John Roberts said.

Roberts asked if being a “bank robber” is a status, citing Robinson v. California.

The Robinson case ruled laws that criminalize people for being drug addicts violate the Eighth Amendment’s prohibition on cruel and unusual punishment. By the logic of the Robinson ruling, someone could be a bank robber without robbing a bank, the chief justice observed.

Justice Elena Kagan said the city’s law went too far beyond seeking to ban encampments, also asking about the status of being homeless.

"It seems like you are criminalizing a status," Kagan said.

Justice Sonia Sotomayor brought up Grants Pass’s history with homelessness, in which officials discussed telling homeless people to go somewhere else, to other cities with a less harsh approach to homelessness, leading those cities to fear they might see a surge of homeless people.

​​"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?" Sotomayor asked Evangelis.

Corkran said Grants Pass’s laws "make people with the status (of homelessness) endlessly and unavoidably punishable if they don't leave Grants Pass. Indeed, all the ordinances do is turn the city's homelessness problem into someone else's problem by forcing its homeless residents into other jurisdictions."

The justices danced around a question about whether a homeless person who is offered shelter can be cited. Related, they also avoided the 9th Circuit's ruling.

The justices did, however, seem in agreement that the problem of homelessness would not be solved in the courts. Roberts asked, “Why do you think these nine people are the best people to judge and weigh those policy judgments?”

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General consensus from the justices appears to point to the idea that these specific policy debates were best left to local officials, not courts. The majority of the justices seemed inclined to side with the city and allow Grants Pass to decide how they will regulate homelessness. They did not see these arguments as constitutional questions for the high court.

A decision in the case is expected to come by the end of June.