A man named Frank sits in his tent with a river view in Portland, Ore., in 2021. A lawsuit originally filed in 2018 on behalf of homeless people in the Oregon city of Grants Pass is set to go before the U.S. Supreme Court in April.
Paula Bronstein / AP
In April, the U.S. Supreme Court will hear a major case that could reshape how cities manage homelessness. The legal issue is whether they can fine or arrest people for sleeping outside if there's no shelter available. The 9th U.S. Circuit Court of Appeals has deemed this cruel and unusual punishment, and this case is a pivotal challenge to that ruling.
The high court declined to take up a similar case in 2019. But since then, homelessness rates have climbed relentlessly. Street encampments have grown larger and have expanded to new places, igniting intense backlash from residents and businesses. Homelessness and the lack of affordable housing that's helping to drive it have become key issues for many voters.
The case, Grants Pass v. Johnson, could have dramatic implications for the record number of people living in tents and cars across the United States.
An Oregon town banned camping and the use of sleeping bags and stoves on public property
In the small city of Grants Pass, Ore., homeless people say the city broke the law when it aggressively tried to push them out over the past decade. To discourage people from sleeping in public spaces, the city banned the use of stoves and sleeping bags or other bedding. But during several years when she had lost housing, Helen Cruz says she needed to live in city parks because they're close to the jobs she had cleaning houses.
"We're not out there because we want to be," she says. "We don't have a choice. There's no place to go."
Grants Pass has no homeless shelter that's open to everyone. A religious mission takes in a few who agree to attend services. That left Cruz racking up thousands of dollars in fines, which she remains unable to pay.
"And I keep getting mail from Josephine County court saying, 'You owe this. If you don't pay this, it's going to collections,'" she says, "which has destroyed my credit."
A lawsuit originally filed in 2018 on behalf of homeless people in Grants Pass said the situation there was part of a larger crisis, as homelessness rates around the U.S. were high and growing. It accused the city of trying to "punish people based on their status of being involuntarily homeless." The 9th Circuit agreed, saying the city could not ban people from sleeping outside with "rudimentary protection from the elements" when there was nowhere else for them to go.
The same appeals court also sided with homeless people in a landmark 2018 case out of Boise, Idaho, which the Supreme Court later declined to take up.
Critics say the Grants Pass ruling is a major expansion over the Boise one, since it forbids not just criminal penalties but civil ones. Advocates for homeless people don't see much difference, since some in Grants Pass who couldn't pay their fines were eventually jailed.
Grants Pass petitioned the Supreme Court. And its appeal has drawn support from dozens of local and state officials across the West and elsewhere who urged the justices to take this case. Among those filing such friend-of-the-court briefs are Republican-led states like Idaho, Montana and Nebraska and Democratic-led cities like Los Angeles and San Francisco, plus a separate brief from California Gov. Gavin Newsom.
Officials say the law has paralyzed their efforts to manage a public safety crisis
States and cities contend these rulings have contributed to the growth of tent encampments.
"These decisions are legally wrong and have tied the hands of local governments as they work to address the urgent homelessness crisis," Theane Evangelis, the attorney representing Grants Pass, said in a statement. "The tragedy is that these decisions are actually harming the very people they purport to protect."
Evangelis and others say sprawling tent camps pose a threat to public health and safety. Those living in them often face theft or assault and are at risk of being hit by passing vehicles. And they note that encampments have led to fires, disease, environmental hazards and high numbers of people overdosing on drugs and dying on public streets.
"It's just gone too far," California Gov. Gavin Newsom said last year at a Politico event in Sacramento. "People's lives are at risk. It's unacceptable what's happening on the streets and sidewalks. Compassion is not stepping over people on the streets."
Critics also say the 9th Circuit's rulings are ambiguous and have been interpreted too broadly, making them unworkable in practice.
"We need to have clarity," says Seattle City Attorney Ann Davison, who wrote a legal brief on behalf of more than a dozen other cities plus the National League of Cities.
For example, what exactly constitutes adequate shelter? And what about when a bed is open, but someone refuses to go? Local officials say that this happens a lot, and some acknowledge that people might have good reasons to not want to go to a shelter. Yet Davison says court rulings essentially require cities to build enough shelter for every person without housing, something many places can't possibly afford.
They also argue that homelessness is a complex problem that requires balancing competing interests, something local officials are better equipped to do than the courts.
"We are trying to show there's respect for the public areas that we all need to have," Davison says. "And we care for people, and we're engaging and being involved in the long-term solution for them."
Advocates say punishing homeless people won’t solve the problem
Attorneys and advocates for the homeless plaintiffs argue that the 9th Circuit rulings are far narrower and less restrictive than cities claim.
"It's interesting to me that the people in power have thrown up their hands and said, 'There's nothing we can do, and the only solution we can think of is to arrest people,'" says Jesse Rabinowitz of the National Homelessness Law Center. "That's simply not true."
He and others say the rulings do allow cities to regulate encampments. They can limit the time and place for them, ban the use of tents, even clear them out. And plenty of cities do that, though they often face lawsuits over the details of what's allowed.
Grants Pass did what's not allowed, which is ban camps everywhere all the time, says Ed Johnson of the Oregon Law Center, which represents those suing the city. He says that would basically make it illegal for people to exist.
"It's sort of the bare minimum in what a just society should expect, is that you're not going to punish someone for something they have no ability to control," he says.
The reason they can't control being homeless, Johnson says, is because Grants Pass — like so many cities around the U.S. — has a severe housing shortage and unaffordable rents. He says that cities are blaming the courts for decades of failed housing policies and that fining and jailing people only makes the problem worse.
"When we criminalize people, we know it impacts their ability to get a job," says Ann Oliva, CEO of the National Alliance to End Homelessness. "It impacts their ability to get housing in the long run if they have a criminal record."
Some cities that side with Grants Pass say they have invested heavily to create more affordable housing, even as homelessness rates keep going up. That's a long-term challenge they'll still face, whatever the Supreme Court decides.
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