U.S. Supreme Court

Supreme Court divided over homeless ban and rights of the unhoused

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Members of the Supreme Court

Members of the Supreme Court sit for a group photo in 2022. (Jabin Botsford/The Washington Post)

Supreme Court justices expressed concern on Monday about punishing homeless people for sleeping outside when they have nowhere else to go, while also struggling with how to ensure local and state leaders have flexibility to deal with the growing number of unhoused individuals nationwide.

The court’s review of a set of Oregon anti-camping laws could lead to the most significant ruling on the rights of the unhoused in decades, with potentially sweeping implications for state capitals and city streets.

Throughout a more than two-hour argument, the justices seemed to divide along ideological lines with conservatives who make up the court’s majority suggesting that elected officials and lawmakers—not judges—should be setting local rules for dealing with homeless people.

Chief Justice John G. Roberts Jr. asked the Biden administration’s lawyer: “Why would you think these nine people are the best people to judge and weigh those policy judgments?”

Justice Brett M. Kavanaugh also expressed concern about federal courts “micromanaging homeless policy.”

The court’s three liberal justices aggressively questioned the lawyer for the city of Grants Pass, Ore., criticizing its laws for seeming to criminalize the most basic of human needs.

“Sleeping is a biological necessity,” said Justice Elena Kagan. “And for a homeless person who has no place to go, sleeping in public is kind of like breathing in public.”

Justice Sonia Sotomayor asked where people are supposed to sleep in a city that lacks sufficient shelter beds.

“Where do we put them if every city, every village, every town lacks compassion?” Sotomayor pressed. “Are they supposed to kill themselves, not sleeping?”

The city’s lawyer, Theane Evangelis, defended the laws and emphasized the harm that can come from people living on the streets and in parks.

“When humans are living in those conditions, we think that that’s not compassionate and that there’s no dignity in that,” she said.

The Supreme Court agreed to intervene in the case after hearing pleas from an unlikely coalition that spanned the political spectrum, including liberal leaders like California Gov. Gavin Newsom (D) and officials in Republican-led states like Montana and Alabama. Their legal briefs described governments overwhelmed by the severity of the problem: More than 600,000 people are homeless nationwide, according to federal data, and nearly half sleep outside.

Three homeless people—Debra Blake, Gloria Johnson and John Logan—sued Grants Pass in 2018, after officials started strictly enforcing a set of measures that outlawed sleeping or camping in public spaces like parks and in parked cars, imposing fines ranging from $75 to $295. The penalties increased substantially when unpaid and could eventually result in jail time or a park ban. They said the city, with a population of 40,000 people, was punishing them “based on their status of being involuntarily homeless” in violation of the Eighth Amendment’s protections against cruel and unusual punishment.

But a majority of justices on Monday seemed unlikely to extend Eighth Amendment protections to homeless individuals without access to shelter. Several seemed to be looking for a more narrow ruling, but it was not immediately clear what that would look like - an uncertainty that reflects the national debate over tackling the thorny problem of homelessness.

The one point that all of the justices and attorneys seemed to agree on: Solving homelessness is complicated.

Outside the court, more than 500 demonstrators crammed the sidewalk for a demonstration urging the justices to reject Grants Pass’s arguments. Waving signs such as “Housing Solves Homelessness,” the crowd heard from the figures heading the leading national advocacy organizations pushing for humane policy for the poor. Large groups from Philadelphia, New York City and Baltimore had climbed into early morning buses to be at the court for the demonstration.

There are officially more than 600 unhoused residents of Grants Pass, with another 1,000 living on the edge, but local service providers say at least twice as many are homeless. Grants Pass does not have a homeless shelter. Its only major transitional housing program, the Gospel Rescue Mission, is a privately-run religious facility with 138 beds and stringent requirements for residents, such as regular chapel attendance and abstinence from substances and romantic relationships.

In 2020, a district court judge barred the city from enforcing its anti-camping ban in parks at night if no other shelter was available, saying the ban and penalties violated the Eighth Amendment.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, which covers Western states, including Oregon, California and Washington, upheld the decision in 2022. A closely divided 9th Circuit refused to rehear the case sitting with a full complement of judges, drawing sharp dissents and warnings of “dire practical consequences” for hundreds of cities and millions of people.

As a result of the 9th Circuit panel’s ruling, the attorney for Grants Pass told the Supreme Court, encampments have multiplied unchecked throughout the West because restrictions on public camping no longer play their critical deterrent role, resulting in spikes in violent crime, drug overdoses, disease, fires and hazardous waste.

In response, lawyers for the homeless individuals said state and local officials are still free to restrict tents in public spaces, to clear encampments and even to fine homeless people who decline other shelter options. But the city cannot punish people with no alternatives, they argued.

“States have broad policing powers, but it does not include the power to push the burdens of social problems like poverty on to other communities or the power to satisfy public demand by compromising individual constitutional rights,” attorney Kelsi Corkran said Monday.

The Biden administration charted something of a middle path between the city and the unhoused plaintiffs. Deputy Solicitor General Edwin Kneedler told the court that anti-camping laws are unconstitutional when they target people who have no access to indoor shelter.

“By prohibiting sleeping, the city is basically saying you cannot live in Grants Pass. It’s the equivalent of banishment,” Kneedler said.

But he urged the justices to return the case to the lower courts to ensure that the city’s laws are not blocked across the board. Such bans should still be allowable, he said, if an investigation shows that a given person does in fact have access to shelter.

Justice Samuel A. Alito Jr. suggested it would be difficult for police officers and social service workers to make on-the-ground determinations about the availability of shelter beds and whether an unhoused individual could be fined.

Both sides in the case known as City of Grants Pass v. Johnson cited a Supreme Court ruling from decades ago to bolster their conflicting arguments. The Biden administration and the homeless individuals said the 9th Circuit ruling is consistent with a 1962 decision from the high court that invalidated a California law criminalizing drug addiction, finding that the government cannot criminally punish a person because of an involuntary status.

Grants Pass attorneys said the same decision drew a line between permissible punishment for conduct and unconstitutional penalties targeting a person’s status. The local laws, they said, are about protecting public safety and health and target the spread of encampments.

The justices said they were struggling with how to draw the line between status and conduct and what it would mean to expand Eighth Amendment protections.

Roberts tried to make a distinction between a person who is addicted to drugs, which he suggested is an ongoing status, and a person who is homeless and might move in and out of homelessness over time.

Justice Neil M. Gorsuch asked whether constitutional protections for unhoused individuals with nowhere to sleep would then have to extend to cooking or making a fire outdoors since eating, like sleeping, is “a human necessity every person has to do.” Would the Eighth Amendment prohibit punishment for stealing food, he asked.

Justice Amy Coney Barrett said similar questions could be asked about trespassing and squatting, and of urinating or defecating in public.

“How do we draw these difficult lines?” she asked.

In response, Corkran, the lawyer for the homeless individuals, said “stealing food is not part of the definition of homelessness, and it’s also not a universal attribute.”

“Homelessness is lacking a fixed, regular nighttime address,” she said. “So the sleeping prohibition goes more directly to the status of homelessness than urination or defecation.”

Before the court’s oral arguments Monday, Grants Pass Mayor Sara Bristol said the national attention from the case has distracted the city from taking action that would meaningfully address the crisis, such as building housing or shelter.

Whatever the court decides, Bristol said, Grants Pass will still be left in the same situation: With hundreds of unhoused residents, who will still need a place to sleep.

“So to me,” she said, “none of this has been a win.”

Kyle Swenson in Washington contributed to this report.

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