A Setback for Homeless Rights in the United States

On June 28, 2024, the United States Supreme Court handed down its decision in City of Grants Pass v. Johnson (Grants Pass), its most significant case on homelessness in decades. The decision overturned the Ninth Circuit Court of Appeal’s 2018 decision in Martin v. Boise (Martin), which mandated that cities allow unhoused individuals to sleep in public spaces when shelter beds were not available. According to Martin, enforcing sleeping and camping bans without available shelter beds violated the US Constitution’s Eighth Amendment bar on cruel and unusual punishment.

The Grants Pass decision marks the conclusion of a significant judicial experiment that began with Martin. The Ninth Circuit’s decision in Martin was groundbreaking because it represented one of the first instances of U.S. constitutional law engaging with positive rights—the right to sleep on public property when no shelter alternatives were available. After the decision was handed down by the Ninth Circuit Court in 2018, local officials scrambled to comply with Martin, which led to the rise of what Mila Versteeg, Kevin Cope, and I, in a forthcoming paper called “the new homelessness”. It would be characterized by a shift from formal shelters to mass encampments in city centers. These encampments created new sociological dynamics between the unhoused and local officials while laying the groundwork for a strong public backlash that fueled the case as it reached the nation’s highest court.

In this blog post, I discuss the Grants Pass decision and lay out how the case came before the Supreme Court. I argue that the decision fails to consider the root causes of homelessness in the United States and exacerbates the already fragmented regulatory landscape governing the vulnerable community of the unhoused. While the Grants Pass ruling provides political leverage for cities and states to intensify punitive measures against the unhoused – including arrests, encampment sweeps, and involuntary commitment – there remains a path forward. Post-Grants Pass legal strategies must pivot towards leveraging the Fourth Amendment’s protection against unreasonable searches and seizures, the Fourteenth Amendment’s equal protection clause to continue advocating for the rights of homeless individuals, and litigation based on state constitutional provisions.

 How Did We Get Here?

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” On a plain reading, the Eighth Amendment to the U.S. Constitution appears to have little to do with homelessness. However, due to the U.S. Constitution’s absence of social and economic guarantees, homeless rights advocates have sought to use the Eighth Amendment since the 1960s as a textual vehicle to argue that the enforcement of vagrancy and anti-sleeping laws punishes the status of being homeless (and all that it entails), and not conduct—a distinction that is foundational to modern criminal law. Various courts disagreed about the applicability of this distinction to homelessness until Martin, where a set of ordinances in the city of Boise, Idaho, that prohibited sitting, lying, or sleeping on public property were challenged. The Ninth Circuit, in a decision authored by Judge Berzon, held that cities could not punish unhoused individuals for sleeping in public if no alternative shelter was available. Martin represented the first federal recognition of a social right: the right to sleep on public property with some bedding when shelter was unavailable and individuals were involuntarily homeless.

The Martin decision led politically progressive, legally risk-averse cities to interpret the ruling broadly, effectively nullifying local anti-camping ordinances altogether even though Martin did not legally require them to do so under all conditions. This broad interpretation was later narrowed following public backlash, resulting in designated, sanctioned encampments and new city-wide camping bans. As the visibility of the unhoused increased in public spaces, city residents began to exert pressure on elected officials to take action. These pressures led to the erection of sanctioned encampments throughout America’s urban landscapes.  Sanctioned encampments provided the unhoused with a legally designated area, usually on public property, where people without shelter were permitted to stay, thereby avoiding violating Martin’s holding while also controlling the geographic spread of unauthorized homeless encampments. These measures sought to balance protecting homeless individuals’ rights with maintaining public order.

However, in the absence of adequate supportive infrastructure for mental health, sanitation, and safety, these encampments began to create law enforcement problems. City officials faced regulatory uncertainty about what constituted adequate shelter, who could claim protection under the Martin holding, and whether law enforcement officers could continue enforcing laws against actions flowing involuntarily from homelessness, like public urination and defecation. Emboldened by Martin, a group of unhoused individuals then sought and won a declaration from the Ninth Circuit in 2022 that a set of ordinances from Grants Pass, Oregon, banning camping on public property could also not be enforced due to the Eighth Amendment’s bar on cruel and unusual punishment, when shelter was unavailable.

The decision aggravated the existing problems I highlighted, and facing a massive public backlash, the City of Grants Pass sought certiorari at the Supreme Court. They were joined by a bipartisan group of governors, cities, and states across the U.S., who claimed that Martin had tied their hands in addressing the unhoused crisis and was preventing decisive action.

The Supreme Court’s Decision in Grants Pass v. Johnson

The Supreme Court’s majority opinion in Grants Pass rests on three planks: i) the history and practice of the Eighth Amendment, ii) deference to elected officials, and iii) the widespread prevalence of anti-camping laws.

Justice Gorsuch, writing for the majority, first emphasized that the Eighth Amendment’s prohibition against cruel and unusual punishment does not extend to criminalizing specific behaviors like public camping. He argued that the Eighth Amendment was designed to prevent barbaric forms of punishment, not to interfere with municipal regulation of public order. This interpretation underscores that regulating behaviors like public camping is within the scope of local governance aimed at maintaining public health and safety.

Second, the majority opinion also stressed that complex social issues, such as homelessness, should be addressed by local governments and the democratic process, not federal courts. Justice Gorsuch highlighted that elected officials are better equipped to handle the multifaceted nature of homelessness through tailored policies and initiatives. This claim of deference to local decision-making reflects a judicial philosophy that favors the decentralization of authority, ostensibly positioning courts as mere interpreters of law rather than policymakers.

Third, the Court noted that many cities across the United States have routinely imposed anti-camping and anti-sleeping laws, demonstrating that such ordinances are neither cruel nor unusual. Justice Gorsuch pointed out that such laws are part of a tradition of municipal regulation aimed at maintaining public order and safety. This reaffirmed the legitimacy of local governments in enacting and enforcing ordinances addressing public camping, as long as they do not criminalize the status of homelessness itself.

The majority’s approach in Grants Pass is fundamentally flawed for several reasons.

First, the Eighth Amendment can and should be interpreted to cover instances of homelessness, as criminalizing basic survival behaviors when no alternatives exist constitutes cruel and unusual punishment. Second, deferring to elected officials to address homelessness is ineffective because homeless individuals often lack political power and representation, leaving their interests unprotected. In this reading, courts are neutral umpires, while the democratic process is the proper avenue to resolve differences about deeply held convictions and ways forward to social problems. Yet, this purported neutrality is often selectively applied, as seen in decisions like Dobbs, where the invocation of “the people” as a democratic ideal was similarly used to justify returning contentious issues to state legislatures despite evident democratic dysfunctions, such as gerrymandering and legislative inertia. This selective application raises questions about the sincerity of the Court’s commitment to democracy, suggesting instead that these decisions may serve as a “cynical fig leaf” that overlooks how disenfranchised groups, like the homeless or those seeking abortion rights, lack genuine political power. Just as in Dobbs, where the return to state control failed to account for the systemic barriers faced by women, the decision in Grants Pass similarly risks enabling punitive local policies without addressing the structural issues that perpetuate homelessness.Finally, the prevalence of anti-camping laws across the United States does not validate their legitimacy; widespread enforcement of such laws highlights systemic failures rather than their inherent fairness or effectiveness.

In her dissent, Justice Sotomayor highlighted the interconnected issues contributing to homelessness, such as rising housing costs, stagnant wages, and inadequate mental health services. Her approach sought to push back against punitive measures that criminalize the essential survival behaviors of homeless individuals, emphasizing that the Constitution should protect the most vulnerable. She criticized the majority for overlooking systemic failures contributing to homelessness and placing undue burdens on marginalized individuals.

Ramifications of the Ruling

One immediate consequence of the Grants Pass ruling is that cities previously constrained by court injunctions now have the authority to reintroduce and enforce anti-camping ordinances. This change could lead to a resurgence of strict laws prohibiting sleeping or camping in public spaces, potentially exacerbating the vulnerability of homeless individuals by increasing their criminalization. Criminal records can severely hinder access to housing, employment, and social services, perpetuating a cycle of poverty and marginalization. More frequent and aggressive encampment sweeps may lead to the displacement of homeless individuals and the loss of their personal belongings, further destabilizing their lives.

For example, cities like Grants Pass have already argued that such ordinances are vital for maintaining public health and safety. With the ruling in their favor, local governments may swiftly move to enforce these laws, potentially escalating penalties from fines to imprisonment for repeat offenders. However, the implementation of these ordinances will likely vary significantly across different jurisdictions. We may see a rapid return to stringent enforcement measures in more conservative areas, while progressive cities might continue to balance enforcement with supportive services. State-level legislation will also matter. Oregon, in contrast to more conservative states, has codified protections similar to those established in Martin. These laws limit how far municipalities can go in regulating public camping, reflecting a nuanced approach to balancing public order with individual rights.

We may also see the emergence of significant fissures opening up between state and local officials. For example, at the state level, California’s Governor Gavin Newsom has directed state agencies to adopt an aggressive stance on clearing encampments. However, this state-level policy does not uniformly translate to all cities within California. For example, Los Angeles has sought to focus more on providing supportive services and housing solutions, rather than resorting to purely punitive measures. Therefore, there appears to be an emerging homelessness regulatory landscape that will be fractured along both inter-state and intra-state dimensions.

The fractured regulatory landscape could lead to increased inter-city migration. Local officials in cities with aggressive enforcement may feel emboldened to arrest unhoused individuals, pushing them to relocate to cities with more lenient policies. Previously, the unhoused gravitated towards cities within the Ninth Circuit that had permissive camping policies. Post-Grants Pass, we will likely see a similar shift, with the unhoused moving to states and cities within the Ninth Circuit that maintain a more permissive approach to enforcement practices.

Since Martin led to extensive litigation under both federal and state law, the resulting legal landscape is likely to become more complex regarding which claims continue to be governed by the central holding in Grants Pass and which follow other legal avenues. For example, in ongoing litigation against the City of San Francisco, the Ninth Circuit on July 8 vacated the preliminary injunction sections related to the Eighth Amendment, which had prohibited the City from enforcing laws against sitting, lying, sleeping, and lodging on public property. However, the Court upheld the injunction related to the Fourth Amendment, requiring the City to adhere to its bag-and-tag policy when handling the possessions of homeless individuals. This mixed outcome exemplifies the convoluted legal environment following Grants Pass, a resolution to which may take considerable time to emerge.

A Path Forward

Grants Pass underscores a significant shift in homelessness policy, but its implications will vary widely across the country. Recent legislation passed in red states, often inspired by model bills from the Cicero Institute, focuses on restricting how cities can spend their money on homelessness. These laws typically prohibit the use of state and federal funds for permanent supportive housing and mandate the creation of state-sanctioned encampments with strict residency limits and penalties for non-compliance. This legislative trend is likely to contribute to a fractured regulatory landscape, with stark differences in how homelessness is addressed across states and municipalities.

Despite the setback in Grants Pass, other doctrinal avenues remain open to protect the rights of homeless individuals. These include the necessity defense, Fourth Amendment claims regarding search and seizure, and Fourteenth Amendment claims. The necessity defense can justify actions that would otherwise be illegal if those actions were necessary to avoid greater harm. This defense is particularly relevant in cases where homeless individuals occupy public spaces like sidewalks and parks to avoid the dangers of sleeping on the streets.

The Fourth Amendment protects against unreasonable searches and seizures, extending its protection to the personal property of homeless individuals. In Lavan v. City of Los Angeles, the Ninth Circuit held that the city’s seizure and destruction of homeless individuals’ property without notice violated the Fourth Amendment. This ruling established that municipalities must provide due process before confiscating personal belongings, reinforcing the need for legal safeguards to protect the property rights of homeless individuals. The recent case discussed above involving San Francisco’s enforcement practices also highlights the relevance of Fourth Amendment claims, where courts have upheld its orders related to the Fourth Amendment’s application to the City’s handling of the possessions of unhoused individuals and ensuring that their property is not arbitrarily seized and destroyed.

The Fourteenth Amendment guarantees due process and equal protection under the law. These protections can be employed to challenge policies that disproportionately impact homeless individuals. In Pottinger v. City of Miami, the court found that the city’s policies and practices of arresting homeless individuals for engaging in life-sustaining activities in public places violated the Equal Protection Clause. The court mandated that the city provide adequate shelter or safe zones where these activities could legally occur, illustrating how the Fourteenth Amendment can ensure that homeless individuals are not unfairly targeted or discriminated against by municipal policies. Furthermore, litigation under state constitutional provisions will continue, as state constitutions often provide broader protections than the federal Constitution, offering additional avenues for challenging punitive measures against people experiencing homelessness.

Conclusion

The outcome in Grants Pass was foreseeable, given the current composition of the Supreme Court and the inherent weaknesses of relying on the Eighth Amendment to secure protections for homeless individuals. The Eighth Amendment was always a tenuous foundation for establishing a right to avoid criminal penalties for homelessness, as it primarily addresses the methods and types of punishment rather than the criminalization of specific behaviors. Furthermore, the way the certiorari question was framed invited the Court to reconsider the boundaries set by Martin, making it clear that the status quo was up for debate.

The Court’s decision to turn the issue back to elected officials, emphasizing democratic processes over judicial intervention, is fraught with challenges. While this approach ostensibly respects local governance, it overlooks the significant power imbalances that leave vulnerable populations, like the homeless, without meaningful access to the political process. By retreating from its role in protecting the rights of these minorities, the Court places the burden on local governments, which may not always act in the best interests of their most vulnerable residents. This shift shirks the judicial responsibility to safeguard against majoritarian abuses and underscores a growing trend of the Court deferring complex social issues to the legislative arena without providing robust protections for those who lack political power.