After an Oregon city passed a law banning sleeping in public, the 9th Circuit Court ruled the law unconstitutional based on the constitution’s ban on “cruel and unusual punishment.” Now, the Supreme Court has signaled that it may side with the city over the lower court, allowing local governments to ban homelessness.
Significance of Grants Pass v. Johnson
After Grants Pass, Oregon passed a city ordinance to ban homeless people from sleeping outdoors, the law received several challenges and has attracted the notice of many cities and localities across the country who are also unsure how to handle their homeless population with respect and also with an eye to public safety.
Judicial Concerns
The Republican-appointed judges on the bench all seemed reluctant to rule on an issue touching on the management of local government issues that are very location-specific, such as homelessness and access to public or private shelters.
Chief Justice’s Comments
Specifically, as it relates to how local governments have to prioritize resources in a manner that meets a wide variety of needs, Chief Justice John Roberts showed hesitance in ruling on how local resources are best utilized and spent. In a court based on precedent, a one-size-fits-all approach is not a likely best practice for the management of the homeless in communities across the country.
Liberal Justices’ Perspective
While the conservative justices signaled that courts are not the best adjudicators of the needs of communities, the liberal justices shared concern about the criminalization of a basic human need like sleep. Justice Ketanji Brown Jackson noted that the city ordinance targeted the homeless and criminalized a basic need for sleep.
Biological Necessities
Like her liberal colleague, Justice Elena Kagan also called into question the criminalization of the basic need for sleep. She compared sleep to breathing and pointedly questioned whether it would be fair to criminalize breathing.
Justice Gorsuch’s Queries
Along the lines of Justice Brown Jackson and Kagan’s focus on biological imperatives like breathing and sleeping, Justice Neil Gorsuch added to the list of basic functions, questioning whether laws banning public urination and defecation should be overturned as well. The Biden Administration representative responded that there is no constitutional protection for relieving oneself in public, as there is a clear public health risk to that activity.
Historical Case Reference
A precedent that continued to come up during arguments was a 1962 court case that ruled against the criminalization of drug addiction. In this case, the court determined that criminalizing drug addiction amounted to a violation of the Eighth Amendment, which protects against cruel and unusual punishments. The Justices, in hearing arguments on the Grants Pass, Oregon law, considered whether it would be appropriate to amend the precedent established in the 1962 Drug Addiction case.
Lawyer for the Homeless Plaintiffs
The representative for the homeless plaintiffs argued that the Eighth Amendment prohibits the penalization of unavoidable behaviors such as sleeping, breathing, or relieving oneself in public.
9th Circuit’s Controversial Rulings
After the 9th Circuit blocked Oregon’s ordinance and prevented several cities from removing homeless encampments, the Circuit Court has come under criticism from liberals and conservatives alike who feel unsure how to adequately and legally handle the homelessness crisis.
California’s Stance
In an amicus brief submitted to the court, California Governor Gavin Newsom stated the need for local management to be given the flexibility and agility to pursue solutions according to varying needs, and emphasized that local governments need to find a balance between public safety and preserving the dignity of the homeless.
Biden Administration’s Position
Seemingly in line with what the Justices themselves were concerned about– the court from on high imposing rules about the fitness of highly localized, situation-specific scenarios– a representative from the Biden administration weighed in with the need for case-specific consideration to be granted rather than a blanket one-size-fits-all strategy.
Practical Challenges and Legal Boundaries
The Justices were concerned about the practicalities and feasibility of criminalizing homelessness when access to shelter may vary widely from night to night, season to season, and location to location. Justice Kagan suggested the need to consider shelter availability when determining if, when, and how public sleeping can be criminalized.
Attorney for Grants Pass
Grants Pass attorney Theane Evangelis argued that the 9th Circuit ruling against the city’s ordinance was overly broad and restrictive, preventing the city from adequately managing its homeless population. In response to Kagan’s suggestion that consideration should be made for bed availability, Evangelis argued that utilizing a metric on a case-by-case basis would be too onerous and complex for reasonable implementation.
Broader Implications
Many cities experiencing increased homelessness will be watching the outcome of this case as the Justices decide if it is cruel and unusual to ban public sleeping.
