Supreme Court Expands Available Government Strategies to Respond to Homelessness Crisis

On June 28, 2024, the U.S. Supreme Court issued a decision in City of Grants Pass, Oregon v. Johnson[1] finding municipal ordinances prohibiting camping on public property to be a constitutional exercise of local government police powers.  This type of “anti-camping” legislation can be an effective tool to restrict homeless encampments from cropping up throughout communities.  Prior to the high court’s Grants Pass decision, however, the Ninth Circuit Court of Appeals’ 2019 decision in Martin v. Boise[2] had largely shackled political subdivisions’ ability to use anti-camping legislation as a means of combating communal homelessness issues.

In Martin, the Ninth Circuit struck down as unconstitutional the City of Boise’s anti-camping ordinance which made it a misdemeanor to camp on city streets, sidewalks, parks, and other public places.  According to the circuit court, the law as applied to involuntarily homeless persons violated the Eighth Amendment’s Cruel and Unusual Punishments Clause if a homeless individual lacked access to alternative shelter at the time of enforcement.  The court held that access to alternative shelter was lacking at any time that the city’s homeless population exceeded the number of available beds in homeless shelters located in the jurisdiction.  The City of Boise attempted to show that access to alternative shelter is available each day by contacting each homeless shelter in the area every night to confirm if all shelters are at capacity.  The circuit court deemed this method inadequate, however, because the fact that one or more shelters have available beds does not necessarily mean that every homeless individual has an equal opportunity to seek shelter there.  The court reasoned a person could be turned away from a shelter for reasons unrelated to capacity limits like prior breaches of shelter policy, or caps on the number of consecutive nights an individual can stay in a particular shelter.  In discarding the City of Boise’s methods as insufficient, and failing to give clear guidance on how best to determine availability of adequate alternative shelter, the circuit court created an unworkable standard for anti-camping legislation to satisfy Martin’s legal mandates.

Martin v. Boise effectively closed the door on political subdivisions’ ability to use anti-camping legislation as a viable means of combatting homelessness.  While the decision isn’t binding law in Ohio’s jurisdiction, and the Sixth Circuit Court of Appeals has yet to weigh in on the constitutionality of anti-camping legislation, Ohio district courts have considered Martin instructive in this context.  For example, the Southern District Court of Ohio cited to Martin’s precedent in a 2020 opinion finding a City of Cincinnati anti-camping ordinance failed “to incorporate a system for determining whether there is [available] shelter space on a particular night or for a particular person.”[3]

When the City of Grants Pass, Oregon found itself in the same situation as the City of Boise, Idaho before it—with anti-camping ordinances deemed unconstitutional by the Ninth Circuit—it petitioned the U.S. Supreme Court to weigh in on this issue in Grants Pass, Oregon v. Johnson.  The three Grants Pass ordinances under review prohibited camping on public property and parking overnight in the city’s parks.  Penalties for violating the ordinances escalated for repeat offenders.  Initial offenses were subject to monetary fines and temporary injunction orders against further violations, and continued violations could result in a maximum of 30 days in jail.  The Ninth Circuit once again found the ordinances violated the Eighth Amendment as applied to involuntarily homeless persons because the laws didn’t require law enforcement to confirm with certainty whether shelter beds were available on a given night before the laws were enforced against the homeless.

However, on further appeal, the U.S. Supreme Court noted at the outset of the Grants Pass opinion that the Ninth Circuit’s application of the Eighth Amendment’s Cruel and Unusual Punishments Clause was largely misplaced in this context.  The clause addresses the question of the “method or kind of punishment a government may impose after a criminal conviction, not on the question whether a government may criminalize particular behavior in the first place.”[4]  The Ninth Circuit’s decisions in both the Martin and Grants Pass cases focused on a narrow ancillary application of the Eighth Amendment which prohibits the government from criminalizing one’s involuntary “status,” rather than one’s behavior.[5]  In the circuit court’s view, the anti-camping laws at issue unlawfully criminalized one’s involuntary condition of homelessness, rather than the act of camping on public property.  The Supreme Court disagreed.

The Supreme Court upheld the Grants Pass anti-camping ordinances as constitutional under the Eighth Amendment.  The laws uniformly applied to both homeless and non-homeless individuals in prohibiting camping on public property.  While they may largely operate to restrict homeless encampments, they did not unconstitutionally criminalize the condition of homelessness.  The Court similarly found the penalties for violating the ordinances did not constitute cruel and unusual punishment for the involved crimes.  Because the laws were not unconstitutional as applied to the homeless population, the Court reasoned there’s no need to require the city to confirm whether adequate alternative shelter exists before enforcing the laws against homeless persons (nor, in the Court’s view, is there any practical or viable method of making such a determination).[6]

In abrogating the Ninth Circuit’s prior decision in Martin, the Supreme Court reinstated anti-camping legislation as a potential tool for local governments to address homelessness issues in their communities.  Anti-camping laws can serve as a useful mechanism for clearing encampments that raise public health and safety concerns, and prompting homeless individuals to accept offers of safe shelter and other beneficial services.  There’s no one-size-fits-all public policy, however, and no guarantee that a court wouldn’t find an anti-camping law violates another constitutional amendment.  Anti-camping laws should be carefully drafted, such that they’re tailored to the particular community at issue and are consistent with the U.S. and Ohio constitutions.  A city or limited home-rule township interested in enacting anti-camping legislation should consult with qualified local government counsel.

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[1] 144 S.Ct.2202 (2024).

[2] 920 F.3d 584 (9th Cir.2019).

[3] Phillips v. City of Cincinnati, 479 F.Supp.3d 611, 654 (S.D. Ohio 2020) (When an individual was unlawfully camping on public property, the city’s policy required law enforcement to notify the Greater Cincinnati Homeless Coalition that there was an individual in need of housing services.  If the individual continued to camp out on public property 72 hours following the initial complaint, the officer could return to arrest him or her for violating the anti-camping ordinance.  The district court found this policy inadequate under Martin for determining the availability of shelter space because officers were not required to follow up with the Cincinnati Homeless Coalition to see if the organization had actually reached out to a homeless individual with an offer of shelter.).

[4] Grants Pass at 2216.

[5] See Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417 (1962) (finding a local law which criminalized an individual’s addiction to the use of narcotics, rather than the act of using narcotics itself, violative of the Eighth Amendment).

[6] See Grants Pass at 2222.