Communities in California and elsewhere in the western U.S. can again take action against illegal homeless encampments and the societal ills they cause without fear of facing paralyzing court orders stemming from lawsuits from the homeless and their advocates, after the U.S. Supreme Court tossed out a controversial federal appellate court decision that critics said had all but established a constitutional right for the homeless to camp on public property.
On June 28, the Supreme Court ruled 6-3 in favor of the city of Grants Pass, Oregon, saying the Eighth Amendment's prohibition on "cruel and unusual punishments" doesn't prevent the city from enforcing a local ordinance forbidding camping in the city's parks or on its sidewalks and other public areas.
Justice Neil Gorsuch wrote for the majority, joined by Chief Justice John Roberts and justices Brett Kavanaugh, Clarence Thomas, Samuel Alito and Amy Coney Barrett.
U.S. Supreme Court Justice Sonia Sotomayor
| U.S. Supreme Court
Justice Sonia Sotomayor dissented, along with the court's two other left-wing justices, Elena Kagan and Ketanji Brown Jackson.
"Homelessness is complex," wrote Justice Gorsuch, in the majority opinion. "Its causes are many. So may be the public policy responses required to address it.
"At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not."
In dissent, Sotomayor said the decision essentially makes criminals out of people for being homeless, leaving them with no choice but to "Stay awake or be arrested."
"The Constitution provides a baseline of rights for all Americans rich and poor, housed and unhoused," Sotomayor wrote. "This Court must safeguard those rights even when, and perhaps especially when, doing so is uncomfortable or unpopular."
The ruling was hailed by conservative observers in California and elsewhere.
“The Grants Pass decision eliminates a key obstacle that made it more difficult for cities and the state to address the homelessness crisis," said Kerry Winegarden, senior fellow in business and economics at the Pacific Research Institute. The conservative policy advocacy organization had filed a brief with the Supreme Court in support of Grants Pass.
"Cities can now enforce no camping laws and have greater ability to help homeless individuals transition from the streets to a more stable housing situation," Winegarden said.
That assessment of the ruling, however, was shared even by progressive Democratic state and local officials in California and elsewhere who have struggled in the past decade to address the growing crisis of homelessness on America's West Coast, in particular, constrained by a litany of court orders that took away any credible threat of consistent force against groups of vagrants using encampments to all but take over parks, sidewalks and other public places.
Among those welcoming the ruling was Democratic California Gov. Gavin Newsom.
“Today’s ruling by the U.S. Supreme Court provides state and local officials the definitive authority to implement and enforce policies to clear unsafe encampments from our streets," Newsom said in a statement released by his office following the ruling. "This decision removes the legal ambiguities that have tied the hands of local officials for years and limited their ability to deliver on common-sense measures to protect the safety and well-being of our communities."
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 Martin 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 Martin 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.
Fifteen 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 Supreme Court's majority decision tossed out the Ninth Circuit's holding in Martin, saying the ruling stretched the Eighth Amendment's protections too far.
The decision centered on how to interpret the current situation in light of prior U.S. Supreme Court decisions, including the 1962 Robinson v California ruling. In Robinson, the Supreme Court for the first time declared the Eighth Amendment's ban on cruel and unusual punishments should block laws that criminalize people based on their "status." In the Robinson case, that centered on a California law which allowed the state to charge people criminally for being addicted to drugs.
In Martin, the Ninth Circuit had extended Robinson, asserting anti-camping laws essentially criminalize people for being homeless.
With the majority, Gorsuch said such reasoning cannot be supported by the Eighth Amendment. The majority said the anti-camping ordinances do not only apply to the "involuntarily homeless," but to anyone who seeks to camp illegally in public spaces.
"Public camping ordinances like those before us are nothing like the law at issue in Robinson. Rather than criminalize mere status, Grants Pass forbids actions like 'occupy[ing] a campsite' on public property 'for the purpose of maintaining a temporary place to live,'" Gorsuch wrote.
"Under the city’s laws, it makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building."
The majority decision particularly eviscerated the Martin decision's requirement that blocked cities and other governments from enforcing their anti-camping rules unless they can first ensure everyone has access to an "available bed."
In the majority opinion, Gorsuch said such a math-based standard is unworkable in practice and not sustainable under the Eighth Amendment, leaving a long list of big unanswerable questions and empowering courts to unconstitutionally impose their own policy preferences on local lawmakers.
Gorsuch such associated "difficult questions" include:
"What does it mean to be 'involuntarily' homeless with 'no place to go'? What kind of 'adequate' shelter must a city provide to avoid being forced to allow people to camp in its parks and on its sidewalks? And what are people entitled to do and use in public spaces to 'keep warm' and fulfill other 'biological necessities'?"
"Those unavoidable questions have plunged courts and cities across the Ninth Circuit into waves of litigation. And without anything in the Eighth Amendment to guide them, any answers federal judges can offer (and have offered) come ... only by way of 'fiat,'" Gorsuch wrote.
Gorsuch noted the case generated a broad outpouring of support for Grants Pass from a politically unusual mix of state and local governmental officials, business advocates and others, agreeing that the Martin decision had shackled the ability of government to effectively respond to homelessness and had left their communities facing a host of predictable associated health and safety problems.
In dissent, Sotomayor and her liberal colleagues said the level of support for anti-camping ordinances doesn't matter constitutionally and insinuated the societal upheaval and loss of public spaces is something communities will need to adjust to to uphold American ideals and protect the constitutional rights of the homeless, until society can address the underlying causes of homelessness.
While community leaders from across the spectrum asserted the court decisions were shackling their ability to respond to homelessness, Sotomayor said the majority decision actually "does these localities a disservice by ascribing to them a demand for unfettered freedom to punish..."
"The Eighth Amendment prohibits punishing homelessness by criminalizing sleeping outside when an individual has nowhere else to go," Sotomayor said. "It is cruel and unusual to apply any penalty 'selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the board.'"
In response, Gorsuch said the majority recognizes that anti-camping ordinances alone won't solve homelessness.
But he said local communities cannot effectively address such long-term and intractable policy questions if it must constantly devote resources and time to addressing the immediate problems caused by homeless encampments which cannot be readily cleared or prohibited under the reasoning demanded by Sotomayor and the Ninth Circuit - reasoning that is "unmoored from any secure guidance in the Constitution" and is left to each judge to determine for themselves.
In the meantime, both Gorsuch and Sotomayor agreed state and local governments are not prevented from allowing people to camp anywhere they wish or prohibiting police from pushing homeless encampments from public spaces.
Sotomayor asserted the state of Oregon essentially has already done that, passing a law requiring local governments to prove their anti-camping enforcement is not unreasonably targeted at the homeless.
But Gorsuch said such enforcement decisions, as well as overall policy prescriptions for homelessness, should be left to state lawmakers and city councils, not to individual judges imposing policies and barring enforcement by court order using what he said is a strained interpretation of the Eighth Amendment.