In a decision expected to have far-reaching consequences for homelessness policy in the United States, the U.S. Supreme Court agreed Jan.12 to review a lower court ruling barring criminal and civil penalties for public sleeping when someone lacks an alternative.
The 9th U.S. Circuit Court of Appeals issued a permanent injunction in Grants Pass v. Johnson on Sept. 28, 2022, rejecting a Grants Pass city ordinance seeking to bar homeless residents from sleeping in public spaces, sidewalks and cars or using sleeping materials for the purpose of maintaining a temporary place to live, under threat of criminal and civil penalty.
The decision may have little bearing on Oregon’s approach to enforcement as long as state protections are in place, according to Ed Johnson, Oregon Law Center director of litigation and lead counsel for the respondents in the case. Under ORS 195.530 and Article I, section 16 of the Oregon Constitution, Oregon requires city ordinances to be objectively reasonable regarding people experiencing homelessness.
Johnson said the issue before the Supreme Court is narrow, asking it to decide whether cities can punish homeless residents simply for existing without access to shelter.
“This case is not about a city’s ability to regulate or prohibit encampments,” Johnson said. “That has always been permissible, is explicitly allowed under the 9th Circuit’s ruling, and is not at issue here. Nevertheless, some politicians and others are cynically and falsely blaming the judiciary for the homelessness crisis to distract the public and deflect blame for years of failed policies.”
The 9th Circuit cited its previous decision in Martin v. Boise as the backdrop for the Grants Pass case, according to court documents. The Martin v. Boise ruling found the U.S. Constitution blocks cities from imposing criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.
“The fact is the 9th Circuit’s narrow ruling is consistent with decades of Supreme Court precedent,” Johnson said. “The U.S. Constitution does not allow cities to punish people for having an involuntary status, including the status of being involuntarily homeless.”
In the opposition brief submitted to the Supreme Court, the Oregon Law Center said rather than looking to resolve homelessness, the city of Grants Pass sought in 2013 to move its homeless population using aggressive, punitive tactics violating the 8th Amendment. The brief cited an argument from the city council president, who said the purpose of the city’s ordinance was to make it impossible for them to live in Grants Pass.
The point was “to make it uncomfortable enough for (homeless persons) in our city so they will want to move on down the road,” the brief said.
Johnson said the Supreme Court has long recognized the 8th Amendment does not allow cities to make involuntary status illegal and prohibits cruel and unusual punishment.
In a 1962 decision, Robinson v. California, the Supreme Court struck down a California law seeking to punish people addicted to narcotics, saying the law would set a dangerous precedent.
“Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold,” the decision said.
“Our position in this case is no more controversial than that,” Johnson said.
Johnson is also the lead attorney on Duncan v. City of Portland, a class action lawsuit challenging the city of Portland’s sleeping ban on the grounds that it is “objectively unreasonable.”
Multnomah County and the city of Portland have nearly 2,700 shelter units — enough for just 39% of the 6,300 homeless Multnomah County residents counted in the 2023 Point-in-Time Count, which the county and service providers believe is a substantial undercount.
In addition to the existing lack of shelter, homeless Multnomah County residents have a life expectancy of nearly 30 years less than the national average of 78, according to the county’s 2022 Domicile Unknown report. Homeless county residents under the age of 50 accounted for 48% of all deaths. The largest death count for a single age group was homeless residents aged 50-59, with 81 people dying — 26% of all deaths.
“People living outside, no matter what they die of, there’s a high likelihood that it was expedited by the fact that they were living outside,” Johnson said.
The Supreme Court's decision to hear the case comes as Portland City Council unanimously voted Jan. 10 to authorize the city attorney to pursue a Writ of Mandamus, a rare and complicated legal maneuver asking Multnomah County Circuit Court judge Rima Ghandour to issue a more detailed opinion on a preliminary injunction she issued Nov. 9, 2023.
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