WASHINGTON — The Supreme Court on Friday agreed to consider in a case whether municipal ordinances that bar homeless people from camping on public property violate constitutional protections against “cruel and unusual punishment.”
The justices will review an appeals court ruling, the only one of its kind, which found that ordinances in Grants Pass, Oregon, are prohibited under the Constitution’s 8th Amendment.
The ruling in question was issued by the San Francisco-based 9th U.S. Circuit Court of Appeals in 2022 and applies to all nine states within its jurisdiction, including California. Several of those states have large populations of homeless people.
Among those asking the Supreme Court to overturn the appeals court are local officials in Los Angeles, San Francisco, Phoenix and other cities.
The appeals court ruled 2-1 that Grants Pass, which is about 250 miles south of Portland, cannot “enforce its anti-camping ordinances against homeless persons for the mere act of sleeping outside with rudimentary protection from the elements, or for sleeping in their car at night, when there is no other place in the city for them to go.”
The decision only applies in situations in which homeless people “are engaging in conduct necessary to protect themselves from the elements when there is no shelter space available,” the court added.
The ruling was met with considerable criticism within the appeals court itself, with the entire bench deciding narrowly against reconsidering it in a 14-13 vote.
The decision was a “dubious holding premised on a fanciful interpretation of the 8th Amendment,” wrote one dissenter, Judge Diarmuid O’Scannlain. The ruling has the effect of “paralyzing local communities from addressing the pressing issue of homelessness, and seizing policymaking authority that our federal system of government leaves to the democratic process,” he added.
Lawyers for Grants Pass defended the city’s actions, saying there is “nothing cruel or unusual about a civil fine for violating commonplace restrictions on public camping.”
Theane Evangelis, one of the city’s lawyers, said in a statement that the appeals court ruling has “contributed to the growing problem of encampments in cities across the West.”
The ordinances in question bar sleeping or camping on publicly owned property including sidewalks, streets, bridges and city parks. Punishment can include fines of up to several hundred dollars and exclusion orders barring people from public property.
The case arose after a group of homeless people challenged the application of the ordinances. Lawyers for the plaintiffs said in court papers that the city’s plan is to “drive its homeless residents into neighboring jurisdictions by making it impossible for them to live in Grants Pass without facing civil and criminal penalties.”
Homeless people are being punished for “simply existing,” the lawyers added.
Ed Johnson, a lawyer at the Oregon Law Center who represents the plaintiffs, said in a statement that nothing in the lower court ruling prevents cities from prohibiting camping, it just addresses whether people can be punished for it.
“Nevertheless, some politicians and others are cynically and falsely blaming the judiciary for the homelessness crisis to distract the public and deflect blame for years of failed policies,” he added.
The Supreme Court in 2019, before the appointment of Justice Amy Coney Barrett created a 6-3 conservative majority, declined to take up a similar case from Idaho in which the city of Boise was seeking to enforce a criminal prohibition against camping on public property.
In that case, the 9th Circuit ruled in 2018 that such prosecutions would violate the 8th Amendment. In its 2022 ruling, the same court extended that reasoning to civil penalties, prompting the city to ask the Supreme Court to intervene.
