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Supreme Court airs concerns over Oregon city’s homelessness law

Case reflects how local governments have grappled with homeless encampments

Homeless rights activists hold a rally outside of the  Supreme Court on Monday. The court heard oral argument in City of Grants Pass, Oregon v. Johnson, regarding ordinances that bar people who are homeless from camping on city streets.
Homeless rights activists hold a rally outside of the Supreme Court on Monday. The court heard oral argument in City of Grants Pass, Oregon v. Johnson, regarding ordinances that bar people who are homeless from camping on city streets. (Kevin Dietsch/Getty Images)

The Supreme Court appeared hesitant Monday to draw sharp lines about when local governments that criminalize public camping infringe on the constitutional rights of people experiencing homelessness.

Across more than two hours of oral arguments, a majority of the conservative-controlled court repeatedly asked the parties about how they could decide a challenge to a law in Grants Pass, Ore., in a way that avoids involving the courts in policy disputes about addressing homelessness.

The case reflects how cities and counties across the country have grappled with problems stemming from homeless encampments. The justices are set to decide the case by the conclusion of the term at the end of June.

The Grants Pass law prohibits anyone from sleeping or camping on public property “for the purpose of maintaining a temporary place to live,” with first civil citations and possible jail time for multiple violations.

In a class action lawsuit on behalf of homeless residents of the city, the U.S. Court of Appeals for the 9th Circuit threw out the statute on the grounds that it unconstitutionally punished homeless people when they had nowhere else to go.

The appeals court found that law violated the Eighth Amendment’s prohibition on “cruel and unusual punishment.” Enforcement of the law has been paused as the court challenge plays out.

Chief Justice John G. Roberts Jr. pointed out that having judges draw the line about when an arrest violates the Constitution would put them in the middle of what is essentially a policy debate on how to handle homelessness.

“It’s a policy problem because the solution, of course, is to build shelters, to provide shelter for those who are otherwise harmless. But municipalities have competing priorities,” Roberts said.

Roberts brought up that municipalities may have needs to address lead pipes or fire protection but feel forced to address homelessness first because of a Supreme Court decision.

“Why would you think these nine people are the best people to judge and weigh those policy judgments?” Roberts said.

Justices Brett M. Kavanaugh and Neil M. Gorsuch asked if the Supreme Court — rather than strike down the rule as unconstitutional — could allow any people charged under the law to be able to avoid punishment by arguing they had no other choice but to sleep outside.

Justice Elena Kagan and other justices on the liberal wing of the court questioned whether that would criminalize being homeless, since the statute effectively targeted a biological function of sleep.

“For a homeless person who has no place to go, sleeping in public is kind of like breathing in public,” Kagan said.

Justice Sonia Sotomayor pointed out that upholding the local law would allow municipalities across the country to take the same steps.

“Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this,” Sotomayor said. “Where are they supposed to sleep? Are they supposed to kill themselves, not sleeping?”

Theane D. Evangelis, the attorney defending the statute, said that upholding the 9th Circuit ruling would make it more difficult for cities in a broad swath of the country to fight homelessness.

“The city’s hands will be tied. It will be forced to surrender its public spaces as it has been,” Evangelis said.

The Biden administration urged the justices to send the case back to the lower court over issues surrounding the certification, but also argued against the Grants Pass law.

Deputy Solicitor General Edwin Kneedler said the statute effectively banned homeless people from the city by banning them from “something everyone has to engage in to be alive.”

“So if you can’t sleep, you can’t live, and therefore by prohibiting sleeping, the city is basically saying you cannot live in Grants Pass,” Kneedler said.

Roberts and Justice Samuel A. Alito, Jr., were among the justices who questioned how the court should consider whether a locality can punish someone for homelessness — a condition that can change day by day.

Kelsi Corkran, attorney for the homeless plaintiffs challenging the law, pointed out the city still has tools that can address homelessness without punishing the homeless people who have nowhere else to go. It could still enforce littering and other laws, clear encampments and encourage people to use shelters.

“The only tool the city wants that it doesn’t have is authority to impose a 24/7 citywide sleeping ban that forces its homeless residents to either move to another jurisdiction or face endless punishment,” Corkran said.

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