US Supreme Court overturns lower court ruling on Oregon homelessness case, decides criminalizing homeless residents for sleeping outside is not cruel and unusual
Editor’s note: This story by Jeremiah Hayden was published June 28, 2024 in Street Roots and is republished here with permission.
In a 6-3 decision, conservative justices reversed the lower court’s 2022 ruling that said punishing homeless residents for sleeping in public spaces when they have no other option violated the cruel and unusual punishment clause of the U.S. Constitution’s Eighth Amendment.
The Supreme Court sent the case back to the 9th Circuit for further proceedings, saying its 2018 Martin v. Boise decision — which served as the backdrop for the Grants Pass case — went too far in applying the Eighth Amendment to homeless residents facing punishment for sitting, lying or sleeping in public.
The ruling is expected to significantly impact homelessness policy throughout the United States, as many local governments currently prohibit public sleeping under threat of civil or criminal penalties regardless of shelter availability.
Conservative Justices Neil Gorsuch, Clarence Thomas, John Roberts, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett formed the majority opinion. Liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissented.
Gorsuch wrote for the majority, saying the Eighth Amendment does not authorize federal judges to dictate homelessness policy and should be left to the American people. The majority ruling argued because Grants Pass’ anti-homeless ordinances theoretically apply to everyone, they do not effectively criminalize status but rather conduct.
“What this ruling has done is stripped any kind of hope that the homeless community here in Grants Pass had. How can you beat someone down even more?”— Helen Cruz, Grants Pass resident
“Yes, people will disagree over which policy responses are best; they may experiment with one set of approaches only to find later another set works better; they may find certain responses more appropriate for some communities than others,” Gorsuch said. “But in our democracy, that is their right.”
In her dissenting opinion, Sotomayor said it is possible for the court to balance the issues facing local governments, the humanity and dignity of homeless people and constitutional principles. She said the majority focused solely on local governments while leaving the most vulnerable with the impossible choice of staying awake or being arrested.
“Sleep is a biological necessity, not a crime,” Sotomayor said.
In amicus briefs filed in advance of oral arguments, elected officials, police departments and business associations throughout the West Coast joined Grants Pass in saying two interrelated 9th Circuit decisions — Martin v. Boise and Grants Pass v. Johnson — remove the tools they need to address the growing homelessness crisis.
Advocates for homeless residents say laws penalizing people who have nowhere else to go violate the Eighth Amendment because they punish people for the status of being homeless. While the city said the laws are applied to everyone, counsel for a class of involuntarily homeless residents argued in court that the ordinances are exclusively enforced against those who have nowhere else to go.
Theane Evangelis, legal counsel for the city of Grants Pass, said the 9th Circuit’s decisions tied the hands of local governments, applauding the Supreme Court’s reversal.
“The Court has now restored the ability of cities on the frontlines of this crisis to develop lasting solutions that meet the needs of the most vulnerable members of their communities, while also keeping our public spaces safe and clean,” Evangelis said. “Years from now, I hope that we will look back on today’s watershed ruling as the turning point in America’s homelessness crisis.”
Ed Johnson, the Oregon Law Center’s director of litigation, who brought the initial suit against Grants Pass, said the decision was disappointing, adding the solution to the U.S. homelessness crisis does not ultimately rest with the courts.
“We are disappointed that a majority of the Court has decided that our Constitution allows a city to punish its homeless residents simply for sleeping outside with a blanket to survive the cold when there is nowhere else for them to go,” Johnson said.
Johnson added that the court did not reach the Excessive Fines Clause claim or rule out the possibility that the Grants Pass ordinances violate the Due Process Clause, leaving room for future challenges. The absence of a decision on those claims will likely lead to further litigation.
Helen Cruz was intermittently homeless in Grants Pass for years and continues providing meals to the local homeless community. She received multiple fines and won an appeal to an exclusion order in 2022.
“It is appalling to me that nine people in little black dresses can have the power to hold the fate of someone’s life in their hands,” Cruz told Street Roos. “What this ruling has done is stripped any kind of hope that the homeless community here in Grants Pass had. How can you beat someone down even more?”
Status v. Conduct
In a concurring opinion, Thomas opened the door for future challenges to Robinson v. California, a 1962 Supreme Court case that determined a person cannot be punished for the involuntary status of being addicted to the use of narcotics.
Robinson is frequently cited in Grants Pass v. Johnson, as the 9th Circuit Court affirmed in Martin v. Boise that “a person cannot be prosecuted for involuntary conduct if it is an unavoidable consequence of one’s status,” such as a homeless person sleeping in public when they lack an alternative.
Thomas’ opinion carries sharp implications, and could pave the way for laws criminalizing other involuntary statuses.
“Rather than let Robinson’s erroneous holding linger in the background of our Eighth Amendment jurisprudence, we should dispose of it once and for all,” Thomas wrote. “In an appropriate case, the Court should certainly correct this error.”
What about Oregon?
For now, the court’s opinion may have little bearing in Oregon. The Oregon Legislature codified the Martin v. Boise decision into state law in 2021. ORS 195.530 dictates any local laws regulating sitting, lying, sleeping or keeping warm and dry outdoors on public property “must be objectively reasonable with regards to people experiencing homelessness” in Oregon.
That law may ultimately leave homeless Oregonians with legal avenues protecting them. The court’s decision explicitly referenced Oregon’s “necessity defense,” which would allow homeless residents to argue they only broke the law due to their inherent need to sleep. Still, the burden of proof may fall on each homeless resident on an individualized basis if making a claim in court. Legal experts say by the time a homeless resident goes through the court system after being swept — and in some cases jailed — they have already been summarily punished.
That state law, however, is likely to face new challenges. State lawmakers began calling for changes to the state law immediately after the Supreme Court issued its decision.
“The Oregon Legislature must act to reverse the misguided law that codified this unconstitutional 9th circuit decision,” state Rep. Ed Diehl (R-HD17) said on X shortly after the decision was announced June 28.
State House Minority Leader Jeff Helfrich (R-HD52) also celebrated the decision in a prepared statement.
“The Supreme Court’s ruling is a victory for common sense and highlights what conservative leadership looks like,” Helfrich said.
In its opinion, the court explicitly said local governments can address homelessness via policy choices, regardless of its decision.
“Nothing in today’s decision prevents States, cities, and counties from going a step further and declining to criminalize public camping altogether,” the majority said in its decision.
Gov. Tina Kotek said her office is reviewing the decision. She said the intent behind ORS 195.530 was to affirm that cities choosing to regulate survival activities must develop laws that are reasonable and take into account the resources available to individuals experiencing homelessness. She echoed what many legal and homelessness experts say regarding what is necessary to materially resolve the crisis.
“Regardless of the Court’s decision, we must do all we can to address homelessness,” she said. “This includes addressing the primary driver of homelessness – our lack of affordable housing. My focus will continue to be on supporting Oregonians moving into housing and connecting them with the services they need to prevent homelessness.”
Local response
The city of Portland and Multnomah County are in the process of working out an intergovernmental agreement to respond to the local homelessness crisis. The city, for its part, passed an updated ordinance leveling $100 fines and the potential for 7 days in jail, with enforcement beginning July 1. Whether the ordinance is “objectively reasonable” enough to withstand the state law is still an open question, and challenges to the state law are expected.
City Commissioner Rene Gonzalez issued a statement saying a “dark period in the west, for Oregon, for Portland has ended,” calling on Kotek and the Legislature to “correct or repeal (ORS 195.530).”
Kat Mahoney, local nonprofit service provider Sisters of the Road executive director, issued a statement denouncing the Supreme Court’s decision, saying criminalizing homelessness will only make the crisis worse.
“The heartbreaking reality is that because of today’s decision, we can expect to see a rise in armed police arresting and fining unhoused people and more people being traumatized and injured during police interactions,” Mahoney said.
Jessica Vega Pederson, Multnomah County Chair, said the ruling doesn’t change the immediate reality.
“People still need places to stay warm and dry and ultimately leave homelessness,” Vega Pederson said. “People still need additional services to transition into shelter or housing. And we must continue to do more — and do it faster and better.”
Mayor Ted Wheeler said the decision will have little or no impact on Portland because the city is required to follow the state law, which continues to “control and limit what Oregon cities can and can’t do.”
“The City of Portland supports a robust legislative discussion on this topic, and we hope the legislature will see this opportunity to consider the tools cities truly need to manage public camping, provide sufficient shelter, and keep our streets safe and clean,” Wheeler said.
Johnson, the OLC attorney, said the work to end homelessness will continue in town halls, state houses and on streets in every community across the country.
“This crisis will not be solved by lawyers or judges,” Johnson said. “It will certainly not be solved by the police. This crisis can only be solved by all of us. We must acknowledge what our failures have been, and we must find the political will to fund and build the housing we need so that every person in this country has a safe place to call home.”
Background
The Oregon Law Center, or OLC, filed the class action lawsuit in the U.S. District Court of Medford on Oct. 15, 2018 — just six weeks after the 9th Circuit issued its decision in Martin v. Boise. That decision served as the legal backdrop for the Grants Pass case and found the U.S. Constitution blocks cities from imposing criminal penalties on homeless people for sitting, sleeping or lying outside on public property if adequate alternative shelter isn’t available.
Initially filed as Debra Blake v. Grants Pass, the complaint argued that a web of ordinances criminalized the existence of homeless individuals in the city. Debra Blake passed away in 2021, and Gloria Johnson and John Logan stepped in as class representatives as the appeal made its way to the 9th Circuit Court and ultimately to the Supreme Court.
The Supreme Court heard oral arguments on April 22.
The question presented to the court was whether city ordinances leveling civil and criminal penalties against involuntarily homeless individuals — meaning they have no other option — is cruel and unusual punishment.
Despite significant initial pushback from the community, Grants Pass City Council unanimously approved a small emergency shelter and navigation center run by the local organization Mobile Integrative Navigation Team, or MINT, on April 17. Still, the building’s capacity is well below what is needed to ensure everyone has an option to sleep indoors.
Grants Pass historically had no low-barrier emergency shelter consistently available for homeless residents. The only shelter for adults was the Gospel Rescue Mission — a high-barrier program that opened in 1983. The mission requires people who stay there to participate in a work program, attend daily Christian services, abstain from substances (including nicotine), and does not allow socializing with the opposite sex except at approved events. The mission acknowledges gender and sexuality in “Biblical terms,” according to its house rules.
Still, the city ordinances require homeless residents living in vehicles to move every 72 hours, and police force people living in parks to move as often as allowed by state law, which is also 72 hours. City code bars anyone from sleeping in public spaces or using sleeping materials for the purpose of maintaining a temporary place to live. Police give homeless residents $295 citations for “scattering rubbish,” a loosely defined term for items officers find near a tent. Fines for violating camping ordinances can increase to $537.60 if left unpaid.
If a person receives two or more citations within a year for violating park rules, they can receive an exclusion order barring them from being in the park for 30 days under threat of criminal trespass. A person found guilty of criminal trespass can be punished with up to 30 days in jail and a $1,250 fine.
The Medford court ruled the city’s ordinances violated the Eighth Amendment in July 2020. On appeal, the 9th Circuit issued a permanent injunction Sept. 28, 2022, barring West Coast states in its jurisdiction from issuing civil and criminal penalties against involuntarily homeless residents lacking reasonable alternative shelter.
In August 2023, Grants Pass petitioned the Supreme Court for a writ of certiorari, asking it to hear the case. Arguing the 9th Circuit erred in its ruling, the city claimed the Eighth Amendment sets limits on bail, fines and punishments but does not say what conduct governments may deem unlawful in the first place.
Editor’s note from Street Roots: This is a developing story. It will be updated with more information as it becomes available. This story has been updated to include reactions from lawmakers and homeless service providers © 2024 Street Roots. All rights reserved. | To request permission to reuse content, email editor@streetroots.org or call 503-228-5657, ext. 40
Street Roots is an award-winning weekly investigative publication covering economic, environmental and social inequity. The newspaper is sold in Portland, Oregon, by people experiencing homelessness and/or extreme poverty as means of earning an income with dignity. Street Roots newspaper operates independently of Street Roots advocacy and is a part of the Street Roots organization. Learn more about Street Roots. Support your community newspaper by making a one-time or recurring gift today.
Jeremiah Hayden is a writer and drummer living in Portland, Oregon. He typically writes about art, politics, social justice and climate change.
