Both sides made their arguments to the U.S. Supreme Court over restrictions by Grants Pass on camping on public property.
A decision by the nine justices is expected by the end of their current term in June. They heard arguments for more than two hours on Monday, April 22.
They accepted the case filed by the Southern Oregon city on Jan. 12, despite the U.S. District Court and the 9th Circuit Court of Appeals declining to hear it. The 9th Circuit decided in 2018 that a camping ban by Boise, Idaho, was unconstitutional if a city did not offer alternatives such as shelters.
Boise later settled the case, and the Oregon Legislature in 2021 passed House Bill 3115, which enabled cities to regulate the time, place and manner of such camping. That law, however, relied on enforcement via individual lawsuits against cities.
The decision by the 9th Circuit affects only the nine states within its authority.
According to a December 2023 report by the U.S. Department of Housing and Urban Development, 600,000 people are without permanent shelter. The U.S. Census, which is in the Department of Commerce, estimates a lower total of 327,000.
The current case pits Grants Pass against Gloria Johnson and John Logan, who are the named defendants challenging the city ordinance. The initial violation can result in a $250 fine, which increases to $537.60 if left unpaid. After two citations, police can issue a ban that opens the way to a charge of criminal trespass. Maximums for the latter are a fine of $1,250 and 30 days in jail.
When Grants Pass approved the ordinance in March 2013, then-city council president Lily Morgan — later a state representative, and currently city manager of Gold Hill — said its aim was to make people uncomfortable enough to leave the city limits.
Since the 2018 Boise case, three justices have joined the high court: Brett Kavanaugh and Amy Coney Barrett, both appointed by Donald Trump, and Ketanji Brown Jackson, appointed by Joe Biden. The court now has a 6 to 3 conservative majority.
Written arguments known as friend-of-the-court briefs were submitted by more than 80 organizations and individuals, mostly from outside Oregon. Aside from the parties themselves, only two briefs were filed directly by Oregon groups.
A few of them — California, Los Angeles County, and the city of Los Angeles — took neither side. One brief in support of Grants Pass was signed by attorneys general from 24 states, including Idaho and Montana.
Oregon did not weigh in as a state. Gov. Tina Kotek said previously that the state’s efforts would be better focused on homelessness itself, not the pending legal dispute.
What both sides say
Grants Pass is represented by lawyers from Gibson, Dunn and Crutcher — a national firm based in Los Angeles — and Capitol Legal Services. Their brief argues that fines and jail terms imposed by camping bans do not violate the federal constitutional ban on cruel and unusual punishment under the Eighth Amendment.
The 9th Circuit held that a ban cannot apply when camping is “an involuntary act or condition” that “is the unavoidable consequence of one’s status or being.”
The lawyers for Grants Pass argued:
“That decision conflicts with the Eighth Amendment’s text, historical practice, and this (Supreme) Court’s precedent. Properly understood, the Cruel and Unusual Punishments Clause does not prohibit modest fines and short jail terms, which are neither cruel nor unusual by any established measure, for camping on public property.”
Johnson and Hogan are represented by Edward Johnson of the Oregon Law Center, Walter Fonseca of the Oregon Justice Resource Center, and lawyers for the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center.
They argued that the city’s ordinance is not aimed at regulation but punishment.
“By design, they define ‘camping’ so expansively that it is physically impossible for someone without access to shelter to live in Grants Pass without risking punishment,” they wrote. “The city’s goal was to make its homeless residents so ‘uncomfortable’ that they would move to other jurisdictions. The Ninth Circuit correctly held that the city’s punishment scheme violates the Eighth Amendment.”
Feds in the middle
Solicitor General Elizabeth Prelogar took no position for either side in the U.S. Department of Justice brief. The federal government did argue against a blanket ban on camping without alternatives, such as in Grants Pass:
"Indeed, a city’s prohibition against sleeping in any public place with any form of bedding is in essence a prohibition against a person without access to indoor shelter continuing to live in the city at all. That is akin to a form of banishment, a measure that is now generally recognized as contrary to our nation’s legal tradition."
On the other hand, the government's brief said the appeals court went too far in its interpretation and that states and cities do have some regulatory authority:
"The Constitution does not prevent the federal government, states, or localities from imposing reasonable time, place, and manner restrictions on sleeping in public and other conduct associated with homelessness."
League weighs in
One of the friend-of-the-court briefs was filed by the League of Oregon Cities, the equivalent city associations in Washington state and Idaho, Special Districts Association of Oregon — and the city of Portland. It was prepared by Anit Jindal and two other lawyers from the Portland firm of Markowitz Herbold.
Their brief says in part:
“Local governments face an impossible choice.
“They can, on one hand, spend more and more to build housing for growing homeless populations so that they may enforce local ordinances prohibiting sleeping and camping in public areas. But such spending limits their ability to adequately fund public health and safety and engage in other critical work to support their communities.
“On the other hand, local governments can forego enormous spending on building shelters, but, if so, they can no longer enforce ordinances designed to protect public spaces for all communities. The Eighth Amendment does not require such a choice.”
Homeless people get support
However, the Oregon Food Bank and other groups filed a brief supporting Johnson. Their brief, prepared by the Dallas, Texas, firm of Fish and Richardson, argued that city ordinances amount to criminalizing homelessness.
They said in part:
“There are a number of false narratives that cities have portrayed as ‘tools’ for addressing homelessness, which in reality are unsupported and contradicted by the evidence-based practices of providing stable, affordable, and accessible housing for individuals.
“Punitive measures that criminalize the mere condition of homelessness do not solve the homelessness crisis. They make it worse. As they witness homelessness on a daily basis, the undersigned amici know that offering care and support — not criminalization — is the way to ensure these members of our communities are housed, fed, and healthy.”
The 15 others that joined the Food Bank's brief: Cascades AIDS Project, Hygiene4All, Community Alliance of Tenants, Ecumenical Ministries of Oregon, Habitat for Humanity/Oregon, Mid-Willamette Valley Community Action Agency, Partners for a Hunger-Free Oregon, PDX Saints Love, Rogue Retreat, ROSE Community Development Corporation, Sisters of the Road, Springfield-Eugene Tenants Alliance, Square One Villages, Street Books and Welcome Home Coalition.
pwong@pamplinmedia.com
NOTE: Adds material from U.S. Department of Justice brief, which took neither side; adds national context of homelessness; adds list of 15 organizations that joined the Oregon Food Bank arguments.
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