Local anti-homeless law faces day in Supreme Court

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Today, the Supreme Court began hearing oral arguments concerning Grants Pass v. Johnson, a case that could criminalize homelessness across the country. This specific case concerns the government of Grants Pass, Ore., a town of 40,000 which passed multiple ordinances prohibiting camping in public areas. Such laws begin with a $295 fine, but repeat offenders can face jail time. 

The case has broader implications for cities across the country, which have been unable to address the dramatic rise in the national unhoused population. 

Legal efforts to enforce camping bans have been complicated by a 2018 ruling from the Ninth U.S. Circuit Court of Appeals, which oversaw a similar case in Boise, Idaho. There, the court ruled in case Martin v. City of Boise that demanding fines from individuals unable to find any other kind of shelter would violate the Eighth amendment, which forbids “excessive fines imposed, nor cruel and unusual punishments inflicted.” 

Those representing the unhoused in Grants Pass have also referenced precedent in Robinson v. California, a 1962 case which clarified that states could not criminalize someone for being a drug addict — only actions such as purchasing and trafficking drugs. Lawyers with Johnson have argued that classification of “homeless” falls along similar guidelines. 

And according to the Harvard Law Review, the defendants are also arguing that “sleep is a physical need, and because Grants Pass has no public shelters for homeless people, the plaintiffs argued, its laws punish their mere existence in the municipality.”

Yet legal counselors representing Grants Pass claim that municipalities have no other choice in the matter, and oversight by federal courts prevents cities from maintaining public spaces for everyone.

"It is doing more harm than good to put this issue before the courts to solve," says Theane Evangelis, a lawyer working for Grants Pass, told NPR. "It's led to endless litigation and paralysis at a time when we most desperately need action.” 

But at today’s hearing, Supreme Court Justice Sonia Sotomayor was incredulous about the plaintiffs' argument that it was “harmful for people to be living in public spaces, on streets and in parks, whatever bedding materials when humans are living in those conditions. We think that that's not compassionate.” 

She continued: “What’s so complicated about letting someone somewhere, sleep with a blanket in the outside if they have nowhere to sleep? The laws against defecation, the laws against keeping things unsanitary around yourself. Those have all been upheld. The only thing this injunction does is say you can't stop someone from sleeping in a public place without a blanket.”

Sotomayor countered that the law would only be enforced against the unhoused.

“If a stargazer wants to take a blanket or a sleeping bag out at night to watch the stars and falls asleep, you don’t arrest them. You don’t arrest babies who have blankets over them,” she said. “You only arrest people who don’t have a home.”

Though the highest court is dominated by conservative judges, there may be a strong enough legal paradigm to prevent Grants Pass from effectively criminalizing the unhoused. And the consequences would reverberate across the country.

It could, for example, impact a law signed late last month by Florida Gov. Ron DeSantis (R) that would ban camping in all public spaces and assist localities in building government-run camps to deal with overflow when shelters run out of beds. The bill also allows individuals and private businesses to sue cities and towns that fail to abide by the legislation, though it fails to deal with the housing crisis, which is driving the rise of such encampments from Orlando to Grants Pass. 

“You should not be accosted by a homeless [person]...You should be able to walk down the street and live your life,” DeSantis said upon signing the bill. 

"We're going to have clean sidewalks, we're going to have clean parks, we're going to have safe streets."

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Jamie Larson