How a Pivotal Case on Homelessness Could Redefine Policies in California and the Nation

The Supreme Court is scheduled to hear oral arguments on Monday in a case that could have major implications for how cities across the country address homelessness.

The case, City of Grants Pass, Oregon v. Gloria Johnson, hinges on whether a local government can issue fines and jail people for camping on public property when there isn’t enough shelter available. The Ninth U.S. Circuit Court of Appeals ruled this was cruel and unusual punishment. Opponents appealed that ruling to the Supreme Court.

“This is the most important case about homelessness in at least 40 years,” said Jesse Rabinowitz of the Homelessness Law Center. “This will either make it easier for cities to punish people for sleeping outside … or it will push cities to fund actual solutions to homelessness.”

As homelessness spikes, cities and states seek tools to help them clean up their streets. In California and around the country, officials are turning to camping bans, encampment sweeps and other policies that target unhoused people to reduce visible homelessness.

And in San Francisco, where there’s an ongoing lawsuit over the city’s encampment sweeps, a district court magistrate relied on the Ninth Circuit’s ruling in this case for an injunction restricting camp clearings.

“This judicial intervention has harmed both San Francisco’s housed and unhoused populations by causing obstructed and inaccessible sidewalks, unsafe encampments, and fewer unhoused people to accept services,” San Francisco City Attorney David Chiu told the Supreme Court in a brief encouraging the justices to take up the case.

Here’s what you need to know about the Grants Pass case:

Background

In 2018, lawyers filed suit against the small city of Grants Pass, Oregon, on behalf of unhoused residents, arguing it was unconstitutional to cite and arrest people for sleeping outside in the absence of any viable alternative for shelter.

“They were ticketed, fined, arrested and jailed for living outside in Grants Pass with as little as a blanket or a tarp to survive,” said Ed Johnson, litigation director at The Oregon Law Center, who filed the suit, noting that the city has a shortage of affordable housing and shelter space.

The federal district court in Medford, Oregon, sided with them. The Ninth Circuit Court of Appeals, whose jurisdiction covers nine western states, later upheld that decision.

The city of Grants Pass then asked the Supreme Court to review the appellate court’s decision. Officials across the political map, including Gov. Gavin Newsom, the cities of Los Angeles and San Francisco and a group of 20 conservative-led states, also asked SCOTUS to take up the case, saying lower court rulings have tied their hands when it comes to addressing homelessness.

This case is closely related to another major homelessness case, Martin v. Boise, in which the Ninth Circuit ruled in 2018 that unhoused people can’t be punished for sleeping outside on public property in the absence of adequate alternatives.

The Grants Pass case relies on that precedent, and some see it as going even further because it applies to civil penalties, not just criminal ones. The city has asked the justices to take on the central issue at play in both cases.

Ultimately, the impacts of this ruling could depend on which particular issues the court chooses to take up and how narrowly it rules. However, many observers believe the court’s decision will encompass both the Boise and Grants Pass rulings.

Arguments in opposition: Cities should be able to clear encampments, issue citations

The city of Grants Pass argues the previous rulings in this case are a roadblock to addressing the homelessness crisis and that fines and short jail stints for camping on public property don’t violate the Eighth Amendment’s prohibition on cruel and unusual punishments.

In their brief, lawyers for the city defend the city’s policies, explaining that base fines for violating the camping ordinance are $295 and repeat offenders can face criminal trespass charges, punishable by 30 days in jail and $1,250 in fines.

“Those punishments are neither ‘cruel’ nor ‘unusual’ in any ordinary sense of those words,” they write. “For centuries, fines and imprisonment have been the default methods of punishing criminal offenses.”

They argue the courts have overstepped, stripping local governments of “traditional police powers.” Grants Pass, along with other cities and opponents of the Ninth Circuit’s ruling, agrees, arguing the ruling and related cases are unclear and have been interpreted too broadly — for instance, to essentially require cities to build enough shelter for every unhoused person — making them impractical.

The upshot, they say, is rising homelessness.

“Encampments have multiplied unchecked throughout the West because generally applicable restrictions on public camping no longer play their critical deterrent role,” they write.

In their briefings, Chiu and lawyers representing Newsom made similar arguments.

Arguments in support: Encampment bans are ‘cruel and unusual punishment’

Attorneys and advocates for the unhoused Grants Pass residents say the lower court rulings are far narrower than cities claim. They argue the rulings do give cities leeway to regulate encampments and even clear them — but not to ban camps outright.

The plaintiffs’ attorneys argue punishing people living on the streets will not solve homelessness — only make it worse.

“If our Bill of Rights is to mean anything, it must mean that governments cannot fine, arrest and incarcerate those who have nowhere else to go,” Johnson said. “We should and we must expect better.”

Advocates for people experiencing homelessness also argue camping bans and similar policies are expensive and ineffective.

“Relying on jails and tickets to respond to homelessness pushes our neighbors deeper into poverty and makes it harder for them to secure jobs and housing,” Rabinowitz said.

Advocates further argue that camping bans and similar policies are bad for people’s health because they disrupt connections to health care and supportive services, erode trust in law enforcement and create additional obstacles to finding housing and employment.

“They have criminal records created by these practices,” said Donald Whitehead, executive director of the National Coalition for the Homeless. “They do not end homelessness; the person after they are arrested, fined and jailed still are living outside.”

Who’s weighing in?

More than 80 amicus briefs have been filed in the case, about evenly split in their support for the two parties.

Siding with the city of Grants Pass, the attorneys general of 24 conservative states argue the decision “infringes their sovereign authority over homelessness policy and criminal law.”

They write, “The Ninth Circuit cannot solve homelessness, and it should not try. It is states and localities that have the local knowledge needed to address the problem, and it is states and localities that ultimately bear the costs of homelessness and of homeless policy. It should be states and localities that make the decisions.”

California sheriffs and police associations, along with the California State Association of Counties and the League of California Cities, and national conservative legal groups like the Cicero Institute are among those weighing in on behalf of Grants Pass.

The groups backing the city’s unhoused residents include the ACLU and other national human rights groups, along with “57 Social Scientists with Published Research on Homelessness” and several California-based nonprofits, including the Western Regional Advocacy Project and Advocates for Empowerment CA.

In their brief, the American Psychiatric Association and several other mental health groups argue criminalizing homelessness can worsen physical and mental health.

“People with mental illness experiencing homelessness already face various barriers to accessing mental health treatment; incarceration exacerbates these barriers,” the brief reads.

Some parties, including the Biden administration, Newsom and Chiu, don’t back either party. In a statement, Chiu said it doesn’t make sense to “punish status or criminally prosecute homeless individuals for being homeless.”

“But, the Ninth Circuit in Grants Pass went well beyond that central idea and misapplied the law,” Chiu continued. “It has left cities like San Francisco without the necessary tools to compassionately address homelessness and ensure our streets and public spaces are safe and accessible to all.”

Possible outcomes

One option is for the justices to uphold the lower courts’ rulings that criminalizing behaviors like sleeping, lying down and sitting in public, when no alternative shelter is provided, violates the Eighth Amendment’s prohibition on cruel and unusual punishment.

Alternatively, the court could overturn that precedent, giving cities the green light to cite, arrest and jail people for sleeping in public, regardless of whether or not there’s shelter available.

In a 1962 case, Robinson v. California, the Supreme Court ruled it was unconstitutional to punish someone for being a drug addict — a “status” rather than an “act.” Sunita Patel, faculty director of the UCLA Veterans Legal Clinic, said the court could decide to upend even this precedent. Patel represented the National Coalition on Homeless Veterans and other veterans service providers in their amicus brief before the court.

“The worst case scenario for the plaintiffs and for unhoused folks is that the court takes this as broadly as they can, and they try to get rid of older precedent,” Patel said.

She and other observers are wary the court will take on such “status offenses,” which would allow cities to criminalize people just for being homeless, she said, and have sweeping implications for civil liberties in general.

A third option is for the court to take a middle road that limits the scope of the lower court rulings, said Ron Hochbaum, head of the University of the Pacific McGeorge Law School’s Homeless Advocacy Clinic and filed a brief in the case.

For instance, the justices could require law enforcement or the courts to determine whether the unhoused person cited had access to shelter whenever a camping ban was enforced. Or, they could allow cities to ban public camping so long as those restrictions are limited to certain places. The U.S. Justice Department endorsed that approach in its amicus brief.

But there’s very little telling how the court will ultimately rule, Patel said.

“This Supreme Court, in particular, is unpredictable,” she said. “We don’t know what they’re going to do.”

What could it mean for California?

If the court sides with the city of Grants Pass, lawmakers could more aggressively enforce anti-camping laws already on the books or pass new ones.

While advocates point out that cities have continued to clear encampments despite the rulings, Devon Kurtz of the Cicero Institute argues that the Ninth Circuit’s rulings in both Grants Pass and Martin v. Boise have had a chilling effect.

“There’s concern that if they were to enforce their camping ordinances, then they could be subject to litigation, and that’s true,” he said.

He thinks the most dramatic change could happen in small cities “that have been really, really reticent to enforce their camping ordinances of any variety out of fear that their insurance premiums are going to go through the roof if they start getting sued,” he said. “They might feel a little bit more confident in taking these steps.”

In California, a bipartisan bill that would have made it easier to clear encampments and issue civil citations for sleeping on the streets died in the Legislature this year but is emblematic of the larger debate around how to respond to encampments.

Cities like San Francisco and Los Angeles have said they’re not interested in aggressively jailing people, but they’re looking for clarity from the court about what constitutes “involuntary” homelessness and adequate shelter.

On Thursday, Newsom said he was looking forward to arguments in the case, expressing hope that its resolution will allow for greater progress toward reducing homelessness.

“This is, to me, just about common sense — not about ideology,” he said.