FILE - Cassy Leach, a nurse who leads a group of volunteers who provide food, medical care and other basic goods to the hundreds of homeless people living in parks, talks to Kimberly Marie, who is homeless and camping in Fruitdale Park, on March 21, 2024, in Grants Pass, Ore. On Friday, June 28, the Supreme Court ruled that cities can enforce bans on homeless people sleeping outdoors in areas where shelter space is lacking.
Jenny Kane / AP
In April, U.S. Supreme Court justices heard arguments in one of the most widely watched cases out of Oregon in recent memory. The question at the heart of Grants Pass v. Johnson was whether cities can regulate where and when people can sleep outside, especially if there isn’t shelter space available.
The 9th Circuit Court of Appeals had held that the city’s ordinance was in violation of the basic principle established in Martin v. Boise from 2018: “A person cannot be prosecuted for involuntary conduct if it is an unavoidable consequence of one’s status.”
But on Friday the Supreme Court issued its ruling siding with Grants Pass, saying that it is not cruel or unusual punishment to penalize people for living outdoors even if they have nowhere else to go.
We get reaction and analysis from Grants Pass Mayor Sara Bristol and Sara Rankin, associate professor at Seattle University School of Law and director of the Homeless Rights Advocacy Project.
This transcript was created by a computer and edited by a volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Earlier this morning, the U.S. Supreme Court ruled that it is not cruel or unusual punishment to penalize people for living outdoors even if they have nowhere else to go. The 6 to 3 decision came in an Oregon case called Grants Pass v. Johnson. It overturned a six-year-old decision from the 9th Circuit Court of Appeals that had largely restricted cities up and down the West Coast from criminalizing homelessness. We’re going to talk to a legal expert about this ruling in a few minutes. We start with Grants Pass Mayor Sara Bristol. Welcome back to Think Out Loud.
Sara Bristol: Hi. Thanks for having me.
Miller: What was your immediate reaction to this news?
Bristol: Well, I guess the first thing that came to mind is just that I was glad for a decision because we haven’t known exactly what day we would be receiving the decision. We’ve been waiting day by day to check the ruling. But overall, I am pleased that we will be able to enforce some rules in our parks and public spaces again. And that’s really what the city has been looking for, the ability to set our own time and place manners rules about how our public spaces are being used.
Miller: So, let’s turn specifically to that. As probably many of our listeners will remember, in 2021, Oregon lawmakers codified what has been talked about as a kind of version of the Boise decision in state law. It says the cities can put limits on sitting and lying and sleeping outside – restrictions, as you noted, on time, place and manner as long as they are quote, “objectively reasonable.” Will this ruling change the way homeless camping is enforced in Grants Pass?
Bristol: Yes, I believe it will in some ways and maybe not in others. Since the ruling on this case in 2020, the city of Grants Pass has been under an injunction that required us to allow unhoused people to sleep in all of our city parks except for one. And then this state law changed about a year later in 2021. So over the course of the past three years, we’ve seen other cities in Oregon have been establishing time, place, manner rules and the city of Grants Pass has not been able to do that. So we have had a significant camping issue in all of our city parks except for the one and we really haven’t been able to make our own rules as we’ve seen other cities do. So in that sense, it will change. I don’t know exactly how it will change, but it will be nice to have some flexibility in that sense.
Miller: What will you push for? What do you want enforcement to look like in Grants Pass now that the Supreme Court has given you some more flexibility, as long as it doesn’t go against state law?
Bristol: Well, we will need some time to meet with our attorneys and review this ruling and learn more about I guess what it means for our future in the long-term, as well as state law. We really haven’t ever had a significant meeting about House Bill 3115 and what that means because of this lawsuit. So we’ll need some time to digest that information. But I guess it’s my expectation that we will be able to establish some rules about which places maybe people can be and where they can’t be, and we’ll be able to probably remove homeless people from sleeping in at least some of the parks.
Miller: This case affects the entire West Coast. It has been national news, but it came from your city. It came from Grants Pass. What has it been like to be the epicenter of this big legal question?
Bristol: It’s been extremely divisive for our community. It’s been a hard situation for me personally. I became mayor on January of ‘21. So the decision had already been made and appealed at that time. We’ve seen an increase in homelessness over the past three-and-a-half years and a lot of people have blamed me or the city council for that situation. It’s been tough to deal with it because we haven’t known exactly what the court would rule because we did have the local decision as well as the 9th Circuit decision, but it’s been in a pending status the entire time that I’ve been mayor. So there’s always this kind of “what if?” Will it be upheld? Will it be overturned? We didn’t know exactly how to move forward without having that legal finality that this decision will give us.
It’s been a rough time, I guess, of people not understanding exactly what and why city officials have been making certain decisions over the past several years. And they’ve definitely wanted more action on the part of cleaning up parks than what we have been able to deliver. At the same time, it’s been hard to establish shelter or an urban campground for a myriad of reasons, too. So it just feels like we’ve been running in place for a while and it’ll be good to be able to make some progress.
Miller: Sara Bristol, thanks very much.
Bristol: Yeah, thanks for having me.
Miller: Sara Bristol is the mayor of Grants Pass.
Sara Rankin joins us now. She is an associate professor at Seattle University School of Law and the director of the Homeless Rights Advocacy Project. Sara, welcome back.
Sara Rankin: Thank you.
Miller: Let’s turn to the ruling itself. What did Justice Neil Gorsuch emphasize in his majority ruling?
Rankin: Before we get there – just in response to Mayor Bristol’s comments, I just wanted to point out a few limitations that might have been confused by some of her responses. The Johnson case that was just overturned did not stop any cities from sweeping encampments. It has nothing to do with sweeps. As you noted, it already allowed cities to impose reasonable time, manner and place restrictions. So the city of Grants Pass could have had reasonable time, manner and place restrictions throughout different parks and in different places, but what it had was functionally a 24-7 ban on public homelessness citywide. And that, that’s very different, I think, than the picture that the mayor there was presenting.
Also, the case did not protect anyone who declined an offer of shelter because that person would be considered voluntarily homeless. So really all Johnson said was that the law that was overturned … all it said was that if a city lacks shelter, it cannot also jail or find someone who is involuntarily homeless for also not having shelter. So I just sort of wanted to make some of those points really clear because Johnson really provided very modest protections in the first place.
The majority decision today, the conservative justices took the position and they basically adopted the arguments that Grants Pass made in its briefings that it was not a violation of the 8th Amendment’s prohibition against cruel and unusual punishment to jail and fine people who have no place to live through no fault of their own. The court came to this conclusion basically on two grounds. One, it went back to some of its earlier precedent and really sort of restricted its interpretation of a case called Robinson. And the understanding of Robinson up until the decision this morning was that the 8th Amendment allowed for the punishment of somebody’s voluntary conduct but not the punishment of an involuntary act or condition if it’s the unavoidable consequence of one’s status or being. And so that was something that the liberal justices asked a lot of questions about. In other words, you can’t be involuntarily homeless without breathing and sleeping and surviving in public space. Those two things, those acts, are the unavoidable consequence of one’s status as a homeless person.
On that front, the conservative justices said, no, this law doesn’t criminalize homelessness. It just criminalizes conduct and the conduct here is camping. And so even though the record showed that that law was only being applied to unhoused people, the majority sort of made the point that it could have applied to anybody including student protesters who might be camping out in public areas protesting something. That has never happened in Grants Pass under this law, it’s only been applied to people experiencing homelessness. But that was one ground that the majority articulated is that it didn’t criminalize someone for their status. It was criminalizing the act of camping, not someone’s status of being involuntarily homeless.
Miller: What did Justice Sotomayor focus on in her dissent?
Rankin: The dissent basically argues that criminalizing someone’s existence is inherently cruel and unusual. Whereas, the majority was trying to say, look, this is about camping, this isn’t about somebody’s status. The minority, the dissent, said look, criminalizing someone for circumstances that are completely intertwined with who they are is inherently cruel and unusual. They’re not taking an act that is something that can be criminalized. So this is a disproportionate punishment for the innocent, non-culpable, biologically imperative act of sleeping. So that was one ground.
There was also a technical ground that the majority took, which agreed with the arguments that Grants Pass was making. And that is that the 8th Amendment only applies to whether the method of punishment like jail or fines is cruel and unusual, and not whether something can be a crime in the first place. So essentially Grants Pass was arguing we can make homelessness a crime and if we punish it, it is OK to punish it through jail or fines because jail and fines are always used. It’s quite commonplace rather than cruel and unusual. That is another line of argument that was adopted by the majority and rejected by the dissent.
Miller: Do you have a sense for what this ruling will mean and will change in Oregon, in particular, given the 2021 law that Oregon lawmakers passed?
Rankin: Well, you’re talking about the state statute. It’s a new necessity defense. That’s sort of problematic on its own. But I will say it’s important to sort of step back and realize that Grants Pass and other cities who choose to pursue the punitive sort of approaches that Grants Pass is taking – instead of looking at reasonable time, manner and place restrictions – there’s still a lot of legal arrows that attorneys have in their quiver when it comes to protecting the civil constitutional and human rights of unsheltered people.
There are a lot of arguments based on other federal constitutional provisions. That was something that was actually mentioned a few times in the majority decision. For example, arguments under the 14th Amendment of the federal constitution. But it’s also really important to realize that states have their own constitutions and most, if not all states, have an analog to the 8th Amendment in their own state constitutions. And state constitutions can be more protective of someone’s rights, but they can’t be less protective of someone’s rights than has been announced in Johnson. So the federal constitution sets the floor, but state constitutions can be way more protective. So there’s arguments that Grants Pass is still going to face under other federal constitutional provisions, under state statutes, including the necessity defense statute that you just sort of alluded to, and state constitutions, among other avenues.
Miller: Sara Rankin, thanks very much.
Rankin: My pleasure.
Miller: Sara Rankin is an associate professor at Seattle University School of Law and the director of the Homeless Rights Advocacy Project.
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