US Supreme Court takes up public camping ban and rights of unhoused people

The U.S. Supreme Court appeared divided Monday about whether governments can enforce a public camping ban when there’s nowhere else for people to sleep.

The court’s ruling, anticipated in late June, on a set of anti-camping laws in a small Oregon town is widely recognized as the most significant case about the rights of unhoused people in decades. It could have far-reaching implications nationwide — including in San Diego, where officials and police have used laws against public camping and blocking a sidewalk to clear tent encampments.

In more than two hours of oral argument, the court grappled with a couple key questions:

• Is a ban on sleeping in public tantamount to a ban on homelessness?
• And which forms of conduct associated with homelessness can be criminalized?

The court’s liberal justices suggested this was a case of a city punishing the basic human need to sleep.

“Sleeping is a biological necessity,” Justice Elena Kagan said. “For a homeless person who has no place to go, sleeping in public is kind of like breathing in public.”

Justice Sonia Sotomayor asked what would happen if every other city, county and state adopted a similar ban.

“Where are they supposed to sleep?” she said. “Are they supposed to kill themselves not sleeping?”

On the other hand, the court’s conservative justices appeared to suggest these difficult policy questions are best left to lawmakers and not courts.

Chief Justice John Roberts pointed out the solution to the problem is building more shelter, but cities have to grapple with competing interests and limited funding to ensure public health and safety.

“Which one do you prioritize?” he said, referring to adequate shelter, safe drinking water and fire protection. “Why would you think that these nine people (on the Supreme Court) are the best people to judge and weigh those policy judgments?”

The case — known as City of Grants Pass v. Johnson — stems from a complaint brought by the Oregon Law Center that claims the city’s anti-camping laws, which include a ban on sleeping in public with a pillow and blanket, have made it impossible for “involuntarily homeless people to exist within city limits without facing civil and criminal penalties.”

Gloria Johnson, one of the named respondents, is a retired nurse who fell into homelessness after her Social Security income failed to keep pace with rising housing costs in Grants Pass, Oregon, a city of 38,000 residents.

But there is no emergency shelter for the city’s 600 unhoused residents.

The 9th U.S. Circuit Court of Appeals ruled that enforcing such bans on camping in public amounts to cruel and unusual punishment, as spelled out in the Eighth Amendment to the U.S. Constitution. It basically says punishments cannot be disproportionate to the crime.

That decision “tied cities’ hands by constitutionalizing the policy debate over how to address growing encampments,” said Theane Evangelis, one of the attorneys representing Grants Pass. The city is asking the Supreme Court to reverse that previous ruling.

Attorneys for Johnson argue that cities already have a number of tools available to deal with homelessness. They can set restrictions about when, where and how people camp, they can break up encampments that pose health and safety risks, and they can enforce laws already on the books that deal with drug use, violence and public urination. 

“The only tool the city wants that it doesn’t have is authority to impose a 24/7 citywide sleeping ban that forces its homeless residents to either move to another jurisdiction or face endless punishment,” said said Kelsi Corkran, Johnson’s attorney.

Status vs. conduct

A previous Supreme Court ruling from decades ago shaped much of the arguments on Monday.

That case — known as Robinson v. California — found in 1962 that it’s unconstitutional for a state to punish someone for being addicted to drugs. In other words, governments can only punish people for an act, such as committing a crime or possessing drugs — not for the status of having an addiction.

Justices spent a lot of time probing attorneys on both sides about whether homelessness is also a status.

Grants Pass attorneys pushed back on this line of questioning, arguing that homelessness is not the same thing as addiction. Housing status can change very quickly, whereas addiction can be a lifelong struggle. In addition, the city is only punishing an act, not a status, Evangelis said.

Johnson’s attorney argued sleeping outside is part of the definition of homelessness — they are two sides of the same coin. The end result is punishing a status.

“The city interprets and applies the ordinances to permit non-homeless people to rest on blankets in public parks, while the homeless person who does the same thing breaks the law,” Corkran said.

Justices posed other hypotheticals on where to draw the line between basic human necessities and criminal acts among people without housing. For example, stealing food, or urinating and defecating in public. Those issues aren’t part of the definition of homelessness, Corkran said.

Justice Amy Coney Barrett noted the difficulty of drawing that line and raised questions about what other constitutional rights unhoused people would claim. 

Justice Brett Kavanaugh pressed Grants Pass on how anti-camping bans help with the complicated issue of homelessness. 

“When you get out of jail,” Kavanaugh said, “what’s going to happen then? You still don’t have a bed available.”

Cities have services and programs available, Evangelis said, and many people use these interventions as an opportunity to get treatment, saving lives. But previous rulings have left cities with no other choice, Evangelis argued.

“Either keep building enough shelter that may or may not be adequate or suitable to someone’s preferences, or be forced to give up all of your public spaces,” she said. “That is what’s happened.”

In a press conference after the hearing, a spokesperson with the National Homelessness Law Center expressed encouragement.

“I don’t think this is a liberal versus conservative question,” said Jesse Rabinowitz, campaign and communications director. “I think everyone realizes that giving someone a ticket for using a blanket in the middle of the winter is cruel and unusual. And it seemed like a majority of justices appear to agree that there’s insufficient shelter in Grants Pass. And through his questioning, Justice Kavanaugh made clear that jailing people does not solve homelessness.”