Anti-Homelessness Policies on the Supreme Court’s Doorstep: Will the Court's Decision Make Room for Everybody?
February 2024 | Floyd Velasquez (Associate Editor)& Annie Vong (Editor-in-Chief )
In the 2024 election year, affordability has climbed its way to the top of American voters’ political priorities. With inflation impacting the prices of everyday goods, coupled with the expiration of COVID-19 era financial relief programs, it is no question that the burden of cost is affecting Americans’ livelihoods, posing a serious threat to housing stability. In 2023, homelessness went up to 12%, leaving more than 650,000 people unhoused on a single night – the highest number recorded since homelessness data collection began in 2007. [1] While an estimate from the U.S. Department of Housing and Urban Development shows an increase in homelessness across every state, the issue of homelessness is one well-known to densely populated urban cities – particularly those on the west coast. [2] For example, over two-thirds of California’s homeless population and almost two-thirds of Oregon’s homeless population do not have shelter. [3] Symptomatic of higher costs of living in bigger cities, states in the west have the highest concentration of chronic homelessness. [4] However, in attempts to tackle these issues, these cities have criminalized homelessness. For instance, in 2019, the City of Las Vegas passed an ordinance that prohibited sleeping and camping in public right-of-ways (i.e. streets or sidewalks) if there are available shelter beds. [5] The penalty for disobeying this ordinance? Up to $1,000 in fines, or jail time up to six months. [6] Las Vegas, along with Henderson, and other major cities such as Los Angeles, have joined or submitted amicus curiae briefs to overturn previous decisions made in the 9th U.S. Circuit Court of Appeals. [7] Primarily, the cities aim to appeal the case of City of Grants Pass v. Johnson (2024), which was granted certiorari by the Supreme Court on January 24th, 2024. Later this year, the Supreme Court will have the final word on this issue, which could reshape homelessness policy entirely. Do anti-encampment policies violate the excessive fines and cruel and unusual punishment clause of the Eighth Amendment?
In 2021, Oregon passed state legislation that allowed any city or county to regulate any homeless persons that are sleeping, lying, or sitting on public property so long as that regulation has “objectively reasonable” time, place, and manner restrictions. [8] Under that law, five anti-camping and anti-sleeping ordinances are under scrutiny in Grants Pass, Oregon. Those who are cited under those five ordinances can be given civil fines. [9] If a person is found to have violated the ordinances multiple times, they are given an exclusion order and barred from city property and if the person is still on the property despite being barred, they will be charged with trespassing. [10]
The original plaintiff, Debra Blake, filed a legal complaint against the ordinance, but has since passed away. New plaintiffs, Gloria Johnson and John Logan, joined and have filed a suit against the City of Grants Pass. Johnson has been issued a citation for camping in a park and was prevented from sleeping in her van. [11] Johnson claims that the citation violates her right against excessive fines outlined in the Eighth Amendment. [12] The Eighth Amendment reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” [13]
At the district court level, it was ruled that the city cannot enforce the camping ban during the day and without 24 hours notice. [14] After losing that case at the district court level, the City appealed the case to the U.S. Court of Appeals for the Ninth Circuit. The City argued that the case was out of the District Court’s jurisdiction because the case became moot in light of Blake’s passing. [15] A case can become “moot” when the plaintiff, defense, or the issue at hand no longer holds any relevance and that a decision made by the court would have little or no impact on the plaintiff, defense, or the issue at hand. [16] However, the Ninth Circuit rejected that claim, saying that Blake’s passing “did not moot the [plaintiffs’] claims as to all challenged ordinances except possibly the anti-sleeping ordinance.” [17] Additionally, the panel held that Martin only applied to civil citations whereas here, the civil and criminal punishments were closely intertwined due to the likelihood of being charged with trespassing. [18] Ultimately, in a 2-1 decision, the Ninth Circuit affirmed the district court's decision. [19]
In 2018, the U.S. Court of Appeals for the Ninth Circuit ruled on a similar case, Martin v. Boise (2018). [20] In Martin, the City of Boise cited six homeless residents under the City’s Camping and Disorderly Conduct Ordinances, however, they filed suit and the Supreme Court ruled that Boise violated the resident’s Eighth Amendment right. [21] They ruled that the City would be imposing a cruel and unusual punishment on homeless persons if they did not have access to shelter elsewhere. The Court held that the City could not punish someone for the status of being homeless nor the unavoidable consequences of being homeless. However, in Johnson v. City of Grants Pass (2023), the Ninth Circuit Court did not rule on whether the ordinance was a violation of the Eighth Amendment, only using Martin to guide their decision.
The City of Grants Pass appealed the case to the Supreme Court, arguing that they need the ability to reduce, “crime, fires, the reemergence of medieval diseases, environmental harm, and record levels of drug overdoses and deaths on public streets.” [22] On the other hand, the plaintiffs argued that being homeless means that they have nowhere else to exist but outside. [23]
The implications of City of Grants Pass v. Johnson’s outcome is transformative, whether the plaintiffs or the City wins the case. Should the Supreme Court decide in favor of Gloria Johnson – affirming Grant Pass’ violation of the “cruel and unusual punishment” and "excessive fines” clause of the Eighth Amendment – they would effectively be mandating that local governments’ policies cannot criminalize homelessness. As a result, this outcome would potentially force cities to shift their policy focus on creating pathways to affordable housing, or to tackle affordability in their local economy. On the other hand, should the Supreme Court rule that anti-homelessness policies are protected under the Constitution, there could be consequences that exacerbate the homelessness crisis. If the Supreme Court’s decision rules in favor of the City of Grants Pass, it would allow any already existing anti-sleeping or anti-encampment laws to remain, as well as promote this policy solution as one that is available to all cities across the United States. Furthermore, a decision in favor of criminalization would mean that criminal records for the homeless population would increase, creating an issue for those who are homeless who are struggling to change their situation. A criminal record creates a barrier for those who are homeless and are attempting to rise from their circumstances should they want to apply for a job, rent a home or apartment, or even make time for themselves outside of time spent in jail or in court. [24]
While reading the Supreme Court justices’ minds is nearly impossible, some scholars have casted predictions for the outcome of cases heard in the same term as City of Grants Pass v. Johnson (2024). Arguably, one can infer which way a justice may lean due to their partisan ideologies; the bench currently consists of a minority of three liberal justices, and a majority of six conservative justices — a bench that is the most conservative it has been in around 90 years. [25] Interestingly enough, these cities – most of which are led by Democratic politicians – are eager to hear a decision from this majority-conservative court. [26] As the cards cannot currently tell where the Supreme Court will land on this case, we must await the first arguments to be heard on April 22nd, 2024. [27]
Sources
Frost, Riordan. “Record Homelessness Amid Ongoing Affordability Crisis.” Joint Center for Housing Studies at Harvard University. February 12, 2024.
Ibid.
Shumway, Julia. “Supreme Court will hear Grants Pass homeless camping case.” Oregon Capital Chronicle. January 16, 2024.
Haines, Julia. “States With the Largest Homeless Populations.” U.S. News and World Report.
Willson, Miranda. “Following tense meeting, Las Vegas council approves homeless ordinance.” Las Vegas Sun. November 6, 2019.
Ibid.
Lyle, Michael. “Las Vegas, Henderson join cities asking U.S. Supreme Court for power to clear homeless camps.” NevadaCurrent. September 29, 2023.
“Noncamping use of public property by homeless individuals.” OR Rev Stat § 195.530 (2021).
Gloria Johnson et al. v. City of Grants Pass, No. 20-35752 (9th Cir. 2023).
Ibid.
Vaughan, Jane. “As Grants Pass awaits Supreme Court decision, city’s struggles with homelessness continue.”OPB News. December. 26, 2023.
Ibid.
U.S. Const. amend. VIII.
Howe, Amy. “Justices take up camping ban case.” SCOTUSblog. January 12, 2024.
Gloria Johnson et al. v. City of Grants Pass, No. 20-35752 (9th Cir. 2023).
“Moot.” Legal Information Institute at Cornell Law School. June 2023.
Gloria Johnson et al. v. City of Grants Pass, No. 20-35752 (9th Cir. 2023).
Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018).
Ibid.
Ibid.
Ibid.
Gloria Johnson et al. v. City of Grants Pass, No. 20-35752 (9th Cir. 2023).
Howe, Amy. “Justices take up camping ban case.” SCOTUSblog. January 12, 2024.
Berg, Steve. “Supreme Court and Homelessness: What the Grants Pass v. Johnson Case Could Do.” National Alliance to End Homelessness. January 26, 2024.
Totenberg, Nina. “The Supreme Court is the most conservative in 90 years.” NPR. July 5, 2022.
Taylor, S. G., & White, J. B. (2024, January 12). Blue states look to conservative Supreme Court for help on homelessness. POLITICO.
Howe, A. (2024, February 21). Court releases April argument calendar. SCOTUSblog.