GRANTS PASS, Ore. — A small city in southern Oregon just took another step in its efforts to up-end restrictions on homeless camping bans in the Western U.S. The case, which will soon go before the U.S. Supreme Court, could determine the landscape of homelessness policies across the nation for years to come.
After a pair of decisions by the Ninth Circuit Court of Appeals, local governments in the West have limitations in how they can respond to homelessness — namely, they can't enforce blanket bans against camping on public property with civil or criminal penalties unless they have sufficient shelter space to take in everyone who needs it.
Those restrictions began with 2018's Martin v. Boise ruling. As the name implies, the case originated in Boise, Idaho. But the federal Ninth Circuit court covers a number of states — everything from Alaska down to California, from Hawaii to Arizona. The case now governs policies in each of these states.
In the Martin ruling, a Ninth Circuit panel determined that it was "cruel and unusual punishment," a violation of the Eighth Amendment, to criminally penalize people for sleeping outside when they are not willingly homeless.
Boise appealed to the U.S. Supreme Court in 2019, but it did not take up the case — closing the book on Martin v. Boise. However, with a very different bench in 2024, the U.S. Supreme Court has since agreed to review a similar case out of Grants Pass.
If the high court reverses the Ninth Circuit's ruling in this case, Johnson v. Grants Pass, it will effectively do the same for the highly influential Martin v. Boise — opening the door to blanket homeless camping bans the likes of which haven't been enforced since prior to the COVID-19 pandemic.
Grants Pass makes its case
The latest development in Johnson v. Grants Pass comes in the form of a filing from the petitioner, meaning the lawyers representing the city. It lays out the salient features of what will become the city's legal argument before the court.
In the filing, the city of Grants Pass says that it's home to about 38,000 people. When the case was filed, it reported having 602 homeless people, all of whom became part of a class action suit against the city — originally Blake v. Grants Pass, now Johnson v. Grants Pass after the death of the first named plaintiff.
The Ninth Circuit found that none of the shelter space that Grants Pass had at the time qualified as shelter under the precedent of Martin v. Boise. Its one dedicated homeless shelter, the 138-bed Union Gospel Mission, had significant religious requirements. The judges likewise discounted campgrounds out on nearby federal land, which were beyond city limits, a warming shelter that was not open for the majority of the year, and a sobering center that lacked beds.
Grants Pass had adopted three ordinances for camping on public property. One prohibited sleeping on public sidewalks, streets or alleyways. Another prohibited camping on any sidewalk, street, alley, park bench or publicly-owned property. A third prohibited camping in city parks.
Anyone who violated these rules could receive a $295 fine, which could be reduced if the violator pleaded out, or increased for repeat offenders. At the top end, someone could receive a $1,250 fine and 30 days in jail.
In their filings, lawyers for the city say Grants Pass issued fewer than 100 of those fines per year from 2013 to 2018.
The city's argument for overturning the Ninth Circuit ruling is relatively straightforward. Attorneys claim that the Eighth Amendment prohibits "certain types" of punishment — not "any" punishment.
"The amendment states that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted," the Grants Pass attorneys write. But nothing in that language, they argue, immunizes certain conduct from all forms of punishment.
City attorneys also appeal to the current Supreme Court majority's penchant for originalism and throwbacks to English common law, writing that the Constitution's framers shared their English forebears' concerns about barbarous punishments, such as quartering, public dissection and burning alive, which inspired the amendment.
The attorneys point out that the U.S. Supreme Court has banned death by firing squad and hard labor in chains under the Eighth Amendment. But, they argue, neither the civil fines imposed by Grants Pass for violating ordinances regarding camping on public property, nor short-term jail sentences for serial violators, qualify as "cruel and unusual."
In another reference to distant history, the petitioners pointed to a case from back in 1867, when the Supreme Court rejected an Eighth Amendment challenge to a fine and a three-month jail term.
They conclude that fines and jail time as punishment are universal, not unusual, and reside in the criminal codes of every state and that of the federal government.
Previewing the opposition
The law group that originally brought the case against Grants Pass on behalf of its homeless residents is the Oregon Law Center, the same group that recently succeeded in blocking enforcement of Portland's daytime homeless camp ban in state court, rather than federal. Their attorneys haven't yet filed a brief since the Supreme Court decided to take up the case last month.
However, in a brief filed prior to that decision, attorneys for the respondents argued that the city of Grants Pass wanted nothing less than to push homeless people out of the city and into neighboring jurisdictions with their ordinances — something the brief quotes the Grants Pass city council president circa 2013 as saying explicitly.
"Given the universal biological necessity of sleeping and of using a blanket to survive in cold weather, the City’s enforcement of its ordinances meant that its homeless residents could not remain within city limits without facing punishment," the attorneys state. "The City had, in other words, 'criminalized their existence in Grants Pass.'"
In its opinion, the Ninth Circuit panel raked Grants Pass over the coals when it tried to argue that people could still technically sleep in the city after revisions to its camping ordinances.
"According to the City, it revised its anti-camping ordinances to allow homeless persons to sleep in City parks," the majority judges wrote. "However, the City’s argument regarding the revised anticamping ordinance is an illusion. The amended ordinance continues to prohibit homeless persons from using 'bedding, sleeping bag, or other material used for bedding purposes,' or using stoves, lighting fires, or erecting structures of any kind. The City claims homeless persons are free to sleep in City parks, but only without items necessary to facilitate sleeping outdoors."
The Oregon Law Center has also argued that the case may be effectively moot, since an Oregon law went into effect last year that broadly makes both the Boise and Grants Pass cases a part of state law. That served as the basis for the law group's case against Portland.
All eyes on Oregon
With so much at stake for states in the Western U.S. and their homeless residents, the Johnson v. Grants Pass case has drawn a significant amount of attention from other groups. Over two dozen outside parties have submitted amicus curiae, or "friend of the court" briefs, to argue in favor of one side or the other.
State legislatures, law enforcement groups, district attorneys, law professors and something called the National Coalition for Men have all hopped on the bandwagon.
By far the majority of these outside groups are backing Grants Pass in their bid to overturn the Ninth Circuit decision, and as "The Story" has covered before, they include some strange bedfellows: the conservative Goldwater Institute, Democratic California Gov. Gavin Newsom, and the city of Portland and the League of Oregon Cities, to name a few.
The U.S. Supreme Court is scheduled to hear arguments on the case April 2 of this year. The final decision likely will not come until months later.