It’s OK to ban homeless people from camping in public, high court rules

The conservative majority of the U.S. Supreme Court sided with a broad coalition of states and cities Friday, as it overturned a rule in the Western U.S. that prohibited them from banning homeless people from camping on public lands.

The six-judge majority, in a decision written by Justice Neil Gorsuch, said the rule created by the 9th Circuit U.S. Court of Appeals was both impractical and legally unsound. The 2018 rule, spelled out in the case of Martin v. Boise, prevented Western cities and other local governments from dispersing camps of unhoused people, unless there were adequate shelter options available for them to use instead.

But the appeals court’s rule, Gorsuch wrote, “exemplifies much of what can go wrong when courts try to resolve matters like those unmoored from any secure guidance in the Constitution.”

Many cities that filed friend-of-the-court briefs said injunctions based on the Martin decision “inadvertently contributed” to the homelessness crisis, rather than helping to alleviate it, Gorsuch wrote.

The underlying case comes from Grants Pass, a city of nearly 40,000 people in southern Oregon. The city passed several anti-camping laws in 2013 in response to a growing population of unhoused people staying on public property. But advocates challenged those laws shortly after the Martin decision came down.

The 9th Circuit reasoned that anti-camping laws violated the Eighth Amendment’s protections against cruel and unusual punishment because the ordinances punished people for who they were rather than for specific acts. The Supreme Court said in 1962 that it was illegal to punish people for their status (like being addicted to drugs) rather than their actions.

But on Friday, Gorsuch said the Eighth Amendment was a “poor foundation” for attacking laws that created crimes, rather than specified punishments. He even questioned the wisdom of the 1962 case, without overruling it.

In any event, Gorsuch said, the laws of Grants Pass did not punish people for being homeless.

“Rather than criminalize mere status, Grants Pass forbids actions like occupying a campsite on public property for the purpose of maintaining a temporary place to live,” he wrote. “Under the city’s laws, it makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.”

Chief Justice John Roberts, along with Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett joined Gorsuch.

The conservatives said the Martin decision from the San Francisco-based appeals court was impractical, providing a lengthy list of problems that cities encountered while trying to abide by it.

For example, the 9th Circuit said local governments couldn’t punish people who are “involuntarily” homeless, Gorsuch wrote.

“But how are city officials and law enforcement officers to know what it means to be ‘involuntarily’ homeless, or whether any particular person meets that standard?” he asked. “Posing the questions may be easy; answering them is not. Is it enough that a homeless person has turned down an offer of shelter? Or does it matter why? Cities routinely confront individuals who decline offers of shelter for any number of reasons, ranging from safety concerns to individual preferences. How are cities and their law enforcement officers on the ground to know which of these reasons are sufficiently weighty to qualify a person as ‘involuntarily’ homeless?”

“If there are answers to those questions, they cannot be found in the cruel and unusual punishments clause,” Gorsuch added. “Nor do federal judges enjoy any special competence to provide them.”

He dismissed the test that the judges in the Martin case gave, which he called “back-of-the-envelope arithmetic.” The lower court said people should be considered involuntarily homeless if there were fewer shelter spots available at a given time than there were people who needed them.

“But as sometimes happens with abstract rules created by those far from the front lines, that test has proven all but impossible to administer in practice,” Gorsuch wrote, noting that keeping an up-to-date tally on the number of people in need of shelter on a given day was a “monumentally difficult” task. There are also difficulties determining what shelter spots are available, because many facilities impose rules on drug use or pets or require religious instruction for their constituents.

“By extending [the 1962 case] beyond the narrow class of status crimes, the 9th Circuit has created a right that has proven impossible for judges to delineate except by fiat,” Gorsuch wrote.

“As a result, cities report, Martin has undermined their efforts to balance conflicting public needs and mired them in litigation at a time when the homelessness crisis calls for action,” he said. Gorsuch pointed out that use of a local shelter in Grants Pass (which requires its constituents to work 40-hour weeks and limits pets) had dropped by 40% since courts enjoined the city’s anti-camping laws. Other cities reported similar drop-offs.

Gorsuch—who during oral arguments questioned the point of jail sentences for repeat offenses of the anti-camping law—said Friday’s decision did not prevent states, cities or counties from eliminating anti-camping laws. In fact, he noted, Oregon state lawmakers had codified many parts of the Martin decision after the appeals court’s decision came down.

“The Constitution’s Eighth Amendment serves many important functions,” he wrote, “but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this nation’s homelessness policy.”

California Gov. Gavin Newsom, a Democrat and former San Francisco mayor who urged the high court to overturn the Martin decision, praised Friday’s ruling. The decision, he said on social media, “removes the legal ambiguities that have tied the hands of local officials for years and limited their ability to deliver on common-sense measures to protect the safety and well-being of our communities.”

But the three liberal members of the Supreme Court dissented from Friday’s ruling, arguing that the anti-camping measures targeted people who had no way to comply.

“Sleep is a biological necessity, not a crime,” wrote Justice Sonia Sotomayor. “For some people, sleeping outside is their only option. The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow.”

“For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is ‘cruel and unusual’ under the Eighth Amendment,” she added. Justices Elena Kagan and Ketanji Brown Jackson joined in her dissent.

The group chastised the majority for focusing too heavily on the plight of local officials and not enough on the plight of people who have no homes.

“It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles. Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested,” Sotomayor wrote.

“The Constitution provides a baseline of rights for all Americans rich and poor, housed and unhoused,” she added. “This court must safeguard those rights even when, and perhaps especially when, doing so is uncomfortable or unpopular. Otherwise, the words of the Constitution become little more than good advice.”

Sotomayor further questioned the majority’s logic for determining that the Grants Pass ordinances punish actions rather than people’s status.

“The best the majority can muster is the following tautology: The ordinances criminalize conduct, not pure status, because they apply to conduct, not status,” she wrote. “The flaw in this conclusion is evident. The majority countenances the criminalization of status as long as the city tacks on an essential bodily function—blinking, sleeping, eating, or breathing. That is just another way to ban the person.”

The National Homelessness Law Center called Friday’s decision “profoundly disappointing.”

“Arresting or fining people for trying to survive is expensive, counterproductive and cruel,” the group said in a statement. “Cities are now even more empowered to neglect proven housing-based solutions and to arrest or fine those with no choice but to sleep outdoors. While we are disappointed, we are not surprised that this Supreme Court ruled against the interests of our poorest neighbors.”