Supreme Court skeptical of laws against unhoused people camping. California officials await decision

The Supreme Court heard arguments on Monday over whether fining or arresting unhoused people who lack other shelter and camp in public areas violates constitutional protections against cruel and unusual punishments.

It is the most important Supreme Court case about homelessness in 40 years, advocates say, and has the potential to affect much broader policy. A decision siding with the Oregon town at the center of the case could allow officials in California or elsewhere to fine and arrest unhoused people sleeping outside with as little as a blanket.

California officials have a strong interest in the case, City of Grants Pass v. Johnson, as the state grapples with some of the highest rates of homelessness and housing costs in the United States. Lt. Gov. Eleni Kounalakis, Rep. Kevin Kiley, R-Roseville, and Sacramento District Attorney Thien Ho were among those at the oral arguments in Washington D.C. on Monday.

Liberal justices aggressively questioned the lawyer for the city, Grants Pass, saying that in practice its laws criminalize someone for being homeless — which is a status rather than an action subject to punishment, they said. Some conservative justices also appeared skeptical of the town’s ordinances.

The overarching question was whether courts, including this one, should be involved in the decision-making of how municipalities regulate homelessness. Justices, especially the conservatives, seemed hesitant to interfere.

“Many people have mentioned this is a serious policy problem — and it’s a policy problem because the solution of course is to build shelter, to provide shelter for those who are otherwise homeless. But municipalities have competing priorities,” Chief Justice John Roberts said, listing various issues a town could face and choose between.

“Which one do you prioritize?” he said. “Why would you think that these nine people are the best people to judge and weigh those policy judgments?”

The Supreme Court, which has a 6-3 conservative majority, is expected to release a decision by the end of June.

California Republicans and Democrats, including Gov. Gavin Newsom and Kiley, are watching the case for the same reason: clear legal direction on clearing homeless encampments.

“That’s the problem that we have right now,” Kiley told The Bee and other reporters outside the court after the hearing.

“We have federal courts dictating homelessness policy for very diverse areas who are experiencing the homelessness issue to a greater or lesser degrees,” he said.

Tackling a growing issue

The number of people experiencing homelessness in the U.S. rose a record 12% from 2022 to 2023, with estimates exceeding 653,000 people in January 2023, according to the U.S. Housing and Urban Development’s most recent annual report. In California, more than 180,000 people were experiencing homelessness at that given point.

Newsom and others have said lower courts, relying on broad interpretations of judicial decisions related to this case, have prevented officials from evicting encampments even when shelter beds were available.

While these lawmakers aren’t siding with the Oregon town of Grants Pass, which created civil and criminal penalties for sleeping outside with a makeshift bedding, they are hoping for greater ability to regulate camping.

The question at the center of City of Grants Pass v. Johnson is whether fining or arresting people for camping in public areas — from a parked car to a tent at the park or a blanket on the sidewalk — when they have nowhere else to go violates the Eighth Amendment to the U.S. Constitution. The amendment prohibits “cruel and unusual punishments.”

The case originated from Grants Pass, a southwest Oregon town of about 40,000 people, which over a decade ago attempted to ban unhoused people from sleeping in public spaces. The city council instituted fines for people camping outside — even those using as little as a blanket, pillow or cardboard box — that could eventually lead to criminal charges.

Liberal justices said that the laws targeted homeless people for a universal basic function — sleeping, and using a form of cover to do so to protect themselves against the elements. Justice Ketanji Brown Jackson said it seemed “both cruel and unusual to punish people for acts that constitute basic human needs.”

Grants Pass has one overnight shelter for adults with 138 beds. But the shelter, the Gospel Rescue Mission, has a Christian focus and strict restrictions such as no pets, drugs or alcohol and required attendance at twice daily religious services that make it unpalatable or inaccessible to many.

There are about 600 people experiencing homelessness in Grants Pass. Judges have written that there is no adequate shelter for unhoused people there.

Some conservative justices seemed skeptical of the policies given the dearth of housing.

“When you get out of jail, what’s going to happen then? You still don’t have a bed available, so how does this help?” Justice Brett Kavanaugh questioned the lawyer for Grants Pass, Theane D. Evangelis.

Evangelis said in closing that these were “low level fines and short jail times,” that other areas have instituted similar ones. She argued that preventing towns from enforcing their own policies on homelessness has perpetuated the crisis and increased issues of health, safety and crime in public areas.

What is the law blocking Grants Pass’ anti-camping rules?

In 2018, the Ninth Circuit Court of Appeals, which covers Western states, decided in Martin v. City of Boise that the Eighth Amendment prohibited local governments from criminalizing “sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.”

The court relied on a 1962 Supreme Court decision that said the Eighth Amendment prevented criminalizing someone’s status, Robinson v. California, specifically regarding the status of being addicted to drugs.

Following that decision, lawyers representing unhoused residents sued Grants Pass over the ordinances. “All the ordinances do is turn the city’s homelessness problem into someone else’s problem by forcing its homeless residents into other jurisdictions,” said a lawyer for the unhoused individuals on Monday, Kelsi B. Corkran.

A federal judge in an Oregon court ruled in 2020 that due to the lack of shelter, punishing homeless people for “sleeping or resting outside while having a blanket or other bedding to stay warm and dry constitutes cruel and unusual punishment in violation of the Eighth Amendment.”

In 2022, the Ninth Circuit agreed. Grants Pass could not enforce its anti-camping ordinances. Civil fines that are deeply intertwined with criminal punishments, like the ones in Grants Pass, were also blocked in Western states in its jurisdiction, including California.

“When the Ninth Circuit constitutionalized this area, it left cities with really no choice: either keep building enough shelter that may or may not be adequate or suitable to someone’s preferences or be force to give up all of your public spaces,” Evangelis said. “That is what’s happened.”

At the heart of the case was 1962’s Robinson v. California and whether homelessness was a state of being. Conservative justices, including Roberts, pushed back on the idea that homelessness was a status if someone could swiftly go in and out of shelter.

Homelessness is a status, even if it is temporary, the lawyer for unhoused individuals in Grants Pass told justices, and therefore unhoused people sleeping outside with a form of covering should not be punished if they have no alternatives for housing.

The lawyer, Corkran, said being homeless was lacking a fixed, regular nighttime address, and compared it to other statuses that can be temporary, such as being poor.

What do California lawmakers want the court to do?

Since the Ninth Circuit rulings, some judges have blocked cities from evicting encampments unless there are enough shelter beds for its entire homeless population. Legislators have said the appellate decisions were confusing and did not properly distinguish what is voluntary versus involuntary homelessness.

Newsom’s lawyers urged the Supreme Court in a brief toward a narrow interpretation that sides with neither Grants Pass nor lawyers for that city’s unhoused people. Officials should be allowed to restrict where encampments are and clear them if there is a health or safety threat, Newsom and other lawmakers argue, while ensuring there are services available to unhoused residents.

A lawyer for the Biden administration pressed this point at Monday’s hearings. Deputy Solicitor General Edwin S. Kneedler told justices that officials unjustly “make it a crime to be homeless in Grants Pass.” However, he argued, the Ninth Circuit’s decision was too broad and did not lay out clear ways to determine whether an individual is involuntarily sleeping on the street, such as after they are notified of shelter options.

But housing advocates and progressive legislators say even a narrow ruling could lead to more hefty fines and arrests of unsheltered people.

“Across the nation, people in these situations are already suffering mentally, you’re already desperate, depressed or distraught, and they already feel subjugated,” Willie Futrelle, an unhoused person in Washington D.C. who was at a rally in front of the Supreme Court on Monday, told The Bee. “It’s only going to make them feel even more subjugated and distrust the government even more.”

Advocates and progressive lawmakers — including Reps. Ro Khanna, D-Fremont, Barbara Lee, D-Oakland, and Linda Sanchez, D-Norwalk — say restricting camping when there are no or limited shelter options is inhumane and costly. Advocates say fining, ticketing and jailing people who can’t afford housing increase homelessness, perpetuate poverty and criminalize the status of being unhoused that these people already don’t want.

Instead, advocates say, officials should focus more on bolstering affordable housing and addressing poverty, which disproportionately affects Black, Latino and Indigenous people.

Some lawmakers want Martin v. Boise overturned, including Kiley and Sacramento D.A. Ho, who argued in a brief that the decision failed to chart course for determining if an individual is involuntarily homeless.