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U.S. Supreme Court Weighs In: Are Ordinances Used to Prohibit Homeless Encampments in Public Areas Unconstitutional?

By Daniel C. Conlon and Hunter Rose Greenberg

City of Grants Pass, Oregon v. Johnson, No. 23-175, 2024 WL 3208072, *1 (U.S. June 28, 2024) (holding that public camping restrictions enforced against homeless persons with no access to shelter do not violate the 8th Amendment of the U.S. Constitution because the 8th Amendment does not immunize people from being punished for involuntary conduct).

Brief Summary

In response to a class action suit by homeless people challenging several anti-camping ordinances in the city of Grant Pass, OR, the U.S. Supreme Court explored the contours of the Eighth Amendment (“8A”) of the U.S. Constitution to determine whether public camping restrictions are unconstitutional, or rather, acceptable tools to limit homeless encampments.  The U.S. Supreme Court held that the 8A regulates the mode of punishment in a local ordinance or law. Therefore, the City’s anti-camping ordinances are not unconstitutional, as their penalties are neither cruel nor unusual.

Background

A rising tide of homelessness in urban areas across the nation pushed local governments to act. Like many other municipalities, the city of Grants Pass, Oregon chose to confront the ongoing homeless crisis by enforcing several anti-camping ordinances to curtail the emergence of homeless encampments in public spaces.

The municipal code of the city of Grants Pass, contains several anti-camping ordinances that bar persons from occupying a campsite on public property, and from camping or parking overnight in a public park. Under the code, “camping” is defined broadly to capture locations in which bedding materials, such as sleeping bags or blankets, are present to accommodate a temporary living arrangement. These public camping restrictions are enforced through escalating penalties; while a first offense warrants a fine, repeated transgressions may result in criminal trespass charges.

Estimates reveal that around 600 homeless people live in Grant Pass. The city’s limited homeless shelter system resulted in a stark imbalance between available beds in shelters and the 600 homeless individuals in the city. In 2018, a class of homeless people living in Grants Pass filed suit, alleging that the anti-camping ordinances were unconstitutional under the 8A. The District Court found in favor of the class, and on appeal, the 9th Circuit affirmed the District Court’s holding. The U.S. Supreme Court subsequently granted certiorari to resolve questions surrounding the proper scope and meaning of the 8A.

Discussion of Authority

  1. The City of Grants Pass’s Argument

The city requested that the U.S. Supreme Court overrule the 9th Circuit’s holding, arguing that the city’s ordinances are not constrained by either the 8A or Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417 (1962) ((holding that criminalizing one’s status (i.e., as an addict, as a chronically ill person, etc.) is prohibited by the 8A)). First, the city argued that the 8A limits the methods of punishment utilized; it does not delineate any substantive constraint as to which offenses are punishable. The city maintained that this interpretation accords with the plain text, history, and commentary surrounding the adoption of the amendment. Furthermore, because the ordinances are enforced through two of the most inoffensive and commonplace methods of punishment, they are not implicated by the 8A.

In addition, the city asserted that Robinson is not applicable, as that rule places a substantive bar on laws that provide for punishment solely based on one’s status. Here, the city noted, the ordinances do not prohibit homeless people, but rather, specific conduct. In other words, status alone is not implicated by these ordinances, and to broaden Robinson to contemplate conduct would unduly expand a definitive, limited holding enunciated by the U.S. Supreme Court. Ultimately, the public camping restrictions involve no cruel and unusual punishment, and any prohibition of specific conduct is attenuated from status, and therefore not unconstitutional under Robinson

  1. Gloria Johnson’s Argument

The class requested that the U.S. Supreme Court affirm the 9th Circuit’s holding, arguing that the ordinances fall within the purview of the 8A. First, respondents argued that the bar to cruel and unusual punishment applies to penalties that are either (1) barbaric or (2) excessive. The class contended this bifurcated interpretation of the amendment is embedded in precedent, as the majority of 8A cases within the past century have turned on a proportionality inquiry regarding crime and subsequent punishment, rather than an assessment into whether the mode of punishment itself was barbarous.

Respondents placed the ordinances within the latter category and asserted that it is inherently excessive to punish an individual on the basis of their personal attributes, or status, under Robinson. The term “camping,” respondents argued, is defined to extend far beyond any colloquial usage of the term, and to cover behavior that characterizes what it means to be homeless. To illustrate, sleeping is a biological imperative, and homeless persons, having no place else to go, must sleep in public places. Additionally, homeless individuals need rudimentary sleeping articles for protection, to prevent debilitating or lethal illness. Essentially, the ordinances prohibit behavior inextricably linked to being homeless, rendering all homeless persons “continuously guilty” of committing a crime. Because the conduct is inseparable from the status, the enforcement of these ordinances results in unconstitutional excessive punishment.

  1. U.S. Supreme Court Decision

The Supreme Court found in favor of the city of Grants Pass and overturned the 9th Circuit’s ruling. The Court held that 8A pertains to mode of punishment only. Therefore, the City’s anti-camping ordinances are not unconstitutional, as their penalties are neither cruel nor unusual. The Court additionally held that Robinson is inapplicable here, as the ordinances in Grant Pass criminalized general conduct—not status. The Court explained that the public camping restrictions operate against backpackers and student protestors occupying tents as well.

The Court declined to extend the Robinson prohibition on status crimes to include involuntary conduct stemming from a person’s status. Additionally, the Court stated that making such an extension would require it to determine which actions can or cannot be criminalized, a task beyond its expertise. The Constitution does not provide guidance on identifying factors like who is involuntarily homeless or what constitutes an available shelter bed. The Court noted that questions about whether someone who has committed a prohibited act and the necessary mental state to be exempt from criminal responsibility are best decided by their local elected representatives.

Practical Advice

The Supreme Court’s ruling allows municipalities to confront the homeless crisis with ordinances that prohibit people from sleeping in public areas. The Court emphasized that municipalities are not required to enact public camping restrictions but have the freedom to do so if they choose. However, public camping restrictions must be generally applicable to pass constitutional scrutiny. Also, municipalities may choose to include time and place restrictions in their ordinances, such as enforcing ordinances from 7 a.m. to 10 p.m. or within one mile of public schools, to limit their reach.

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About the Authors: Daniel C. Conlon is a shareholder at Tucker Arensberg, P.C. and a member of the firm’s Municipal & School Law practice. He serves as Solicitor to various municipalities in Western Pennsylvania. For more information, contact Daniel Conlon at (412) 594-3951 or at dconlon@tuckerlaw.com.

Hunter Rose Greenberg is a Summer Associate at Tucker Arensberg, P.C. and a rising 3L at the George Washington University Law School. She is pursuing her J.D. degree with focuses in intellectual property law and constitutional law.

July 03, 2024

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