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Constitutional Law

Apr. 30, 2024

The Supreme Court pondered, with varying degrees of empathy, punishing the homeless for outdoor encampments

Courts have consistently affirmed that cities can regulate sleeping in public, provided that viable alternatives for sleeping exist. Such time, place, and manner restrictions are and should continue to be permissible.

Adam Murray

Executive Director, Inner City Law Center

Inner City Law Center serves over 5,000 homeless and working poor clients each year from its offices on Skid Row.


Have we truly become so cruel that we punish people for simply lacking a place to call home? The Supreme Court addressed this exact question when it heard oral arguments last week in the City of Grants Pass v. Johnson case.

Faced with a shortage of shelter beds, Grants Pass, Oregon did what too many similarly situated cities across our nation have done. Rather than address the root of the issue by adding more shelter capacity, Grants Pass opted for punitive measures, outlawing camping, sleeping on the sidewalk, or sleeping in a car for more than two hours.

The underlying agenda was unambiguously articulated by the City Council President: "the point is to make it uncomfortable enough for them in our city so they will want to move on down the road."

The consequences were as brutal as they were predictable. People living on the streets faced exorbitant fines and the heartbreak of having their possessions seized and destroyed, including vital documents like birth certificates and IDs that are often essential to the journey out of homelessness. In one heart-wrenching instance, a mother's grief was compounded as the city callously disposed of her son's ashes.

Fortunately, the District Court recognized the inherent cruelty in these ordinances, deeming them violations of the Eighth Amendment's prohibition against cruel and unusual punishment because "homeless persons have nowhere to shelter and sleep in the City other than on the streets or in parks." The Ninth Circuit upheld this ruling, affirming that "the anti-camping ordinances are unconstitutional ... unless there is some place, such as shelter, they can lawfully sleep."

This legal stance is not novel; it follows precedents dating back to 2006, when the Ninth Circuit similarly ruled that "the Eighth Amendment prohibits the City from punishing involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles."

From all the sound and fury emanating from various local elected officials about this ruling, you would think that their hands have been severely tied. That is not the case. Time, place, and manner restrictions are still permissible.

Courts have consistently affirmed that cities can regulate sleeping in public, provided that viable alternatives for sleeping exist. For example, recent cases in Oakland and Hawaii have permitted eviction from specific public areas when other places are readily available where homeless individuals can sleep.

Some jurisdictions have risen to the challenge, by expanding shelter capacity. For example, Whittier, California responded to litigation by agreeing to build 139 additional shelter beds so that it could then enforce its curfew and anti-camping laws.

At last week's oral arguments, some Justices expressed concern about the Grants Pass ordinances. As Justice Sotomayor stated "Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this? Where are they supposed to sleep? ... What's so complicated about letting someone somewhere sleep with a blanket in the outside if they have nowhere to sleep?"

Other justices seemed less concerned about this outcome and more focused on whether camping while homeless was "conduct" that Grants Pass could punish, or a "status" that triggered Eighth Amendment protections under prior caselaw.

Others expressed concern, as Justice Alito put it, about how "this is going to be administered on a daily basis." Justice Roberts noted that while "this is a serious policy problem ... [w]hy would you think these nine people are the best people to judge and weigh those policy judgments." Similarly, Justice Kagan noted that "these are tough judgments--and usually they're the kind of judgments that we think of as municipal officials making." Some Justices even asked whether Oregon law should address this situation, rather than relying on the US Constitution.

But this is the exact sort of case that the US Constitution is designed to address. As Kelsi Corkran, who argued this case for the class challenging the Grants Pass ordinances noted: "Our history and tradition as a country is to emphatically reject any sort of local legislative scheme that has the effect of pushing the burdens of poverty or indigency into other communities. It's woven throughout our Constitution."

The Ninth Circuit's ruling is straightforward and grounded in well-established precedent for what should be an uncontroversial concept: everyone has a right to sleep. Punishing individuals for sleeping on public land when no alternative exists is a violation of basic human dignity.

To hold otherwise would be to embrace the criminalization of homelessness and to allow cities to attempt to address homelessness by sweeping folks out of town. Pushing the problem down the road is a misguided approach that fails both morally and practically.

As we await the Supreme Court's decision, we must all reaffirm our commitment to compassionate, effective solutions to homelessness. Criminalization and displacement are not solutions; they are moral failures. I hope that we are better than that. We shall see.


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