No one knows for sure the details of a forthcoming U.S. Supreme Court decision on the ability of officials in California, Oregon and elsewhere in America's western states to enforce anti-camping rules to clear homeless encampments from parks, downtowns and other public spaces.
But most observers believe, based on the high court's oral arguments Monday in the case known as Grants Pass v Johnson, the court's conservative majority seems poised to declare a federal appeals court misinterpreted the Constitution in declaring such laws, which city and state officials have said are designed to preserve public access to public spaces and amenities, to be unconstitutional "cruel and unusual punishments."
"This will not be the last word on what the Constitution says about homelessness," said Erik Jaffe, an attorney with the firm of Shaerr Jaffe LLP, of Washington, D.C.
Erik Jaffe
| Schaerr | Jaffe, LLP
Jaffe authored a brief filed with the Supreme Court on behalf of the Pacific Research Institute, siding with the city of Grants Pass, Oregon, in the dispute.
Jaffe said he believes the justices - "maybe by a 6-3 or 7-2 decision" - will overrule the U.S. Ninth Circuit Court of Appeals and declared it was wrong to find the Eighth Amendment's prohibitions on cruel and unusual punishments prohibited cities, like Grants Pass, from enforcing ordinances and fining violators for sleeping in their parks or other public spaces.
"What they do after that, though, could really be the interesting question."
The Grants Pass case landed before the Supreme Court last year, after the court agreed to hear the appeal from the small Oregon city from a decision handed down by the San Francisco-based Ninth Circuit, banning the city from enforcing measures to clear homeless campers from its public spaces.
Strictly speaking, the ruling from the Ninth Circuit would have allowed a group of homeless people to move forward with a class action lawsuit against the southern Oregon city, asserting the city's ban on sleeping in parks and other public property amounted to violations of their constitutional rights.
However, in effect, dissenting judges on the Ninth Circuit and a host of other critics from across the political spectrum said the decision all but created a right for homeless people to sleep and camp wherever they wish, even in parks and on sidewalks. They warned this would only worsen crime and other public health and safety issues that accompany homeless encampments in cities in California and elsewhere all along the Pacific Coast.
The ruling built on, and in many ways, refined the Ninth Circuit's holding in the 2018 decision in Martin v City of Boise, which declared criminal penalties against homeless people for "sitting, sleeping or lying outside on public property" amounted to violations of the Eighth Amendment, if those individuals cannot otherwise obtain shelter.
Under the Boise decision, the Ninth Circuit had held cities may not be allowed to enforce anti-camping ordinances unless they can prove they have enough shelter beds or other spaces available in which homeless people can sleep.
Grants Pass had argued the Boise decision should not be read to allow class actions. They said such an interpretation would essentially force cities and courts to presume that all homeless people living in tents on public land are unable to find shelter, rather than allowing them to determine if those campers are simply refusing to seek shelter and instead choosing to camp in a city park or other public space.
In all, 15 Ninth Circuit judges joined the dissent, which declared the Grants Pass decision was "egregiously flawed and deeply damaging," and would leave "local jurisdictions ... in a straitjacket" when attempting to ensure homeless encampments do not take over public spaces, resulting in "tents crowding out sidewalks, needles flooding parks, and rubbish (and worse) marring public squares..."
The effects of the ruling were on display earlier this year already, when a federal judge cited the Grants Pass decision in blocking San Francisco from enforcing its ordinances addressing homeless encampments.
After the Supreme Court agreed to accept the appeal, the case received a flood of briefs from officials, academics and organizations on both sides. On one side, advocates for the homeless asserted the Ninth Circuit decision was correct, saying, under prior Supreme Court precedent, cities and states should not be allowed to criminalize people for being homeless.
During oral arguments, the high court's three liberal justices took up that line of reasoning, asserting the ban on sleeping in public spaces amounts to punishing people for being poor and having nowhere else to go.
They further asserted the city's enforcement of the ordinance was uneven, because police allow other people, such as "stargazers" to sleep outside with only a blanket without being fined under the ordinance.
On the other side, however, a politically unusual mix of state and local governmental officials, business advocates and others lined up to urge the Supreme Court to overturn both the Grants Pass and Boise decisions, to restore the ability of governments to address homelessness and push those experiencing homelessness and suffering from its ill effects to seek help, rather than allow them to simply pitch a tent in a park in spite of local rules.
The court's conservatives appeared to wrestle with the question of where to draw legal lines.
Jaffe noted the conservatives appeared to agree that homelessness cannot be treated as a protected "status" under the law.
All sides agreed cities remain free to enforce other public health and safety measures, including prohibiting public defecation and urination or prohibiting drug addicts from shooting up in public or alcoholics from being drunk in public.
But Jaffe said the conservatives appeared to doubt the proposition that city "anti-sleeping" ordinances amount to punishment of people simply for being too poor to afford a house or apartment.
He noted justices repeatedly returned to the so-called "necessity defense," which is founded on the legal principle that people are entitled to admit they broke the law, but they had no other choice to survive or they were subject to circumstances beyond their control. But such a defense must be mounted on an individual case-by-case basis, not as a blanket defense on behalf of all homeless people in a particular city, he said.
Jaffe predicted the conservative majority will "effectively gut" the Ninth Circuit holdings, and end the legal regime set up on the West Coast under the Boise decision, which officials have long complained left them "handcuffed" in addressing homelessness. He agreed the court will most likely end any kind of math-based inquiry, which allows courts to count the number of shelter beds available before determining if cities can enforce "anti-sleeping" ordinances, such as the one challenged in Grants Pass.
From there, Jaffe said the courts still have other issues to unravel, such as the question of whether Grants Pass's ordinance violates the Eighth Amendment's ban on "excessive fines," or fines that are disproportionate to the offense.
Under the ordinance, people can be fined $295 for initial violations, with the amount rising to more than $500 if unpaid. Further violations can result in people being banned from public property and subject to criminal trespass penalties, which can include a fine of $1,250 and potentially up to 30 days in jail.
But Jaffe said he believed the court would end what Jaffe called in his brief to the court the Ninth Circuit's misinterpretation of the Eighth Amendment as "an open invitation for federal judges to impose their own policy preferences about the balance between circumstance and choice, individual rights versus the rights or all others to use public space, or the nature and scope of government’s obligation to house the poor."
A ruling from the Supreme Court is expected later this year.