'No place to go': Supreme Court debates cities' leeway to crack down on homeless camps
WASHINGTON − The Supreme Court on Monday wrestled with how far cities can go in cracking down on homeless encampments as it heard arguments in the case of an Oregon tourist town that banned sleeping in public with a blanket.
Homeless residents of Grants Pass, Oregon, faced fines of $250 and jail time for breaking the city’s strict anti-camping laws until a federal appeals court said the ordinances violate the Constitution’s ban on cruel and unusual punishment.
Now the city says its parks will be overrun by unsanitary homeless encampments unless the justices reverse the appeals court's decision. Lawyers for homeless residents of Grants Pass said police have plenty leeway to enforce disruptive behavior without turning people into criminals when they have nowhere to stay.
"Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this? Where are they supposed to sleep? Are they supposed to kill themselves, not sleeping?" Justice Sonia Sotomayor asked.
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Justices look for ways to avoid a big decision
Several justices seemed to lean toward giving local governments discretion − and limiting the federal courts' involvement in local decisions − while also showing sensitivity to the no-win plight of homeless residents.
“Sleeping is a biological necessity. It’s sort of like breathing,” said Justice Elena Kagan. “You can say breathing is conduct, too, but presumably you would not think that it’s OK to criminalize breathing in public. And for a homeless person who has no place to go, sleeping in public is kind of like breathing in public.”
At the same time, several justices sought ways to limit the scope of any decision they would ultimately take in the case.
“Many people have mentioned this is a serious policy problem,” said Chief Justice John Roberts, noting the many pressing issues local governments deal with. “Why would you think that these nine people are the best people to judge and weigh those policy judgments?”
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“How does a court make those judgments?” Kagan asked. “Because these are tough judgments. And, usually, they’re the kind of judgments that we think of as municipal officials make them.”
Kelsi Corkran a lawyer representing homeless residents, said the Grants Pass "blanket" law clearly targeted the homeless while residents who had permanent places to live escaped punishment when lying on blankets in public.
“The ordinances, by design, make it physically impossible to live in Grants Pass without facing endless fines and jail time,” Corkran said. “All the ordinances do is turn the city’s homeless problem into someone else’s problem by forcing its homeless residents into other jurisdictions.”
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A 'failed experiment,' lawyer says
In 2023 the California-based 9th U.S. Circuit Court of Appeals sided with the homeless residents. The court said the city could enforce rules against fires, illegal drug use, unsanitary encampments and other problems, but it couldn't punish people for sleeping in a public place if they have nowhere else to stay.
The court made a similar ruling in 2018 against an anti-camping ordinance in Boise, Idaho.
Cities across the political spectrum have said the rulings set an unworkable standard and urged the Supreme Court to clarify what they can do.
Theane Evangelis, the attorney for Grants Pass, asked the justices to end a “failed experiment which has fueled the spread of encampments while harming those it purports to protect.”
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“Cities are struggling to apply arbitrary, shifting standards in the field,” Evangelis said. Without the court’s intervention, she said, cities will be forced to surrender their public spaces.
The Justice Department argued that the appeals court ruling was too broad, and didn’t take into account individual circumstances such as whether someone had access to a shelter and refused it.
Deputy Solicitor General Edwin Kneedler said cities need flexibility to implement rules about where, when and how someone can sleep in a public place, so long as they’re “reasonable.”
Open fires on a cold night
But Justice Kagan said it’s hard to draw that line. Are fires never allowed even if it’s a very cold night? Can tents be erected if it’s raining?
On the question of open fires, Justice Neil Gorsuch noted, "I'm totally sympathetic that that might be a necessity."
On any given night in the United States, more than 600,000 people are likely to be homeless, according to the federal government. Last year, 40% of homeless individuals slept under bridges, on sidewalks, in parks, cars, abandoned buildings and other public locations.
The challenge to Grants Pass’ rules is the most significant case on homelessness in decades.
The appeals court relied on a 1962 Supreme Court decision that said someone could be arrested for using illegal drugs – a behavior − but not for being addicted to them, a status. If someone is “involuntarily” homeless because no shelter beds are available, the 9th Circuit said, then the camping bans are going after their status, not their conduct −a violation of the 8th Amendment.
But Justice Neil Gorsuch said the difference between status and conduct is a “slippery one.”
“And they are often closely related,” he said.
Roberts likewise hammered away at whether that’s a useful distinction.
"You can remove the homeless status in an instant if you move to a shelter, or situations otherwise change,” Roberts said. “And, of course, it can be moved the other way as well, if you're kicked out of the shelter or whatever.”
Justice Brett Kavanaugh wondered whether a better way of determining the fairness of anti-camping rules is not the 8th Amendment but allowing anyone charged with a violation to potentially raise a defense of “necessity” under state law.
Kavanaugh said the justices should consider whether state or local laws can address these question so federal courts aren’t left “micromanaging homeless policy.”
Justice Ketanji Brown Jackson likewise wondered if the court could narrowly decide the issue by saying that the Grants Pass’ rules aren’t allowed under a recent state law.
Corkran, the lawyer for the homeless residents, said she wouldn’t have a problem with the court avoiding the constitutional issue by deciding the case that way.
A decision is expected by the end of June.
This article originally appeared on USA TODAY: 'No place to go': Supreme Court debates crack down on homeless camps
