On Monday morning, the Supreme Court considered the question of whether Grants Pass enforcing its laws regulating camping on public property is cruel and unusual punishment, as prohibited by the Eighth Amendment.
Oral arguments concluded after two-and-a-half hours. Such cases are usually decided in the term in which they are argued, and the Court’s current term ends in June, so a decision could take months.
Activists demonstrate at the Supreme Court as the justices consider a challenge to rulings that found punishing people for sleeping outside when shelter space is lacking amounts to unconstitutional cruel and unusual punishment, on Capitol Hill in Washington, Monday, April 22, 2024.
J. Scott Applewhite / AP
Attorney Theane Evangelis argued on the city’s behalf, saying that camping laws are necessary for cities to protect their public spaces.
“These generally applicable laws prohibit specific conduct and are essential to public health and safety. The 9th Circuit tied cities’ hands by constitutionalizing the policy debate over how to address growing encampments,” she said.
The original legal complaint dates back to 2018, when homeless plaintiff Debra Blake claimed that “Grants Pass is trying to run homeless people out of town.” It argues that homeless people in Grants Pass are subject to citations and fines when there are no low-barrier shelters and thus nowhere else for them to go.
In 2020, the district court in Medford ruled that the city’s ordinances regulating homelessness were unconstitutional. Grants Pass appealed that decision to the 9th Circuit Court, based in San Francisco, which upheld it in a three-judge decision. The city requested that all 29 judges on the 9th Circuit Court hear the case, but they voted not to do so. The case was then appealed to the U.S. Supreme Court.
One of the main points repeatedly discussed on Monday was the difference between status and conduct. According to a Supreme Court ruling in the 1962 case Robinson v. California, it’s unconstitutional for a state to punish someone for being a drug addict, which is a status rather than an act, like committing a crime. While it can be illegal to do things like possess or buy drugs, the simple status of being a drug addict (or alcoholic, etc.) cannot be a crime.
In this case, the homeless respondents argue that Grants Pass’s ordinances effectively make it a crime to be homeless in the city, which they say is illegal. The city argues the opposite, that this case does not involve status, and unhoused people are being punished simply for violating public camping laws.
Justices Sonia Sotomayor and Elena Kagan in particular pushed back on the city’s arguments.
Sotomayor seemed to side with homeless respondents, saying that “only homeless people who sleep outdoors will be arrested.”
“If a stargazer wants to take a blanket or a sleeping bag out at night to watch the stars and falls asleep, you don’t arrest them. You don’t arrest babies who have blankets over them,” she said. “You only arrest people who don’t have a home.”
Kagan said the city appeared to be criminalizing the status of being homeless, rather than just punishing people for violating camping laws. She said Grants Pass’s ordinances go much further than basic protections to keep streets safe.
“We only come up with this problem for a person who is homeless, who has the status of homelessness, who has no other place to sleep. And your statute says that person cannot take himself and himself only and can’t take a blanket and sleep someplace without it being a crime. And that’s, well, it just seems like Robinson. It seems like you’re criminalizing a status,” Kagan said.
“The law does not say on its face ‘it is a crime to be homeless,’” Evangelis said.
Justice Neil Gorsuch again brought up the distinction between status and conduct, regarding whether shelter beds were available. He asked whether someone with a mental health problem that prevented them from sleeping in a shelter or someone who was addicted to drugs or alcohol, which weren’t allowed in a shelter, should be allowed to camp in public.
“The Eighth Amendment violation is prohibiting sleeping outside because the only shelter that is available won’t take them,” responded Deputy Solicitor General Edwin Kneedler who spoke on behalf of neither side for the United States.
Kelsi Corkran, the attorney for the homeless respondents, referenced status and conduct in her opening argument. She claimed that because the city criminalizes sleeping, which is an unavoidable human act, it effectively criminalizes the status of being homeless.
“The only question under Robinson is whether there’s any meaningful difference between a law that says being homeless is punishable and a law that says being homeless while breathing or sleeping or blinking is punishable,” she said. “In other words, does adding a universal human attribute to the definition of the offense make the punishment conduct based instead of status based? The answer is no.”
Justice Samuel Alito asked about the practicality of not enforcing local regulations on a daily basis as police officers work to determine who is involuntarily homeless, what shelter beds are available and where.
“The individual police officer would go around and count the number of people who are getting ready to sleep outside for the night, and then ask each one of them whether you’ve tried to find a bed at a shelter, whether that person would be willing to go to a shelter, if a bed is available without any conditions, or whether the bed would have to be available on the conditions that the individual wants?” he said.
At the end, Evangelis offered a rebuttal, saying “[The 9th Circuit’s ruling] left cities with really no choice. 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. That is what’s happened.”
Grants Pass Mayor Sara Bristol said in an interview Monday that the city would like to be able to enforce regulations regarding homelessness in the city.
“At the same time, I completely understand that we don’t have adequate shelters in Grants Pass, and that homeless people need to be able to sleep and exist somewhere, and that it’s not a crime to be homeless, and that our society needs to provide some places that are okay for homeless people to be. Because if we kick them off private property and we kick them off public property, it does essentially make it illegal to be homeless,” she said.
As she awaits a decision from the court, Bristol said the long-term problem regarding a lack of housing in Grants Pass still stands.
“Unfortunately, the Supreme Court is not going to answer for us, how do we establish shelter and who pays?” she said.
