The United States Supreme Court heard oral arguments Monday morning in a case concerning the constitutionality of municipal bans on homeless encampments.
While some Justices expressed concern over the possibility of punishing homeless people for sleeping in public when viable alternatives are unavailable, others took issue with the Court playing a hands-on role in shaping the policies implemented by municipalities to manage homelessness at the local level.
The case of Grants Pass v. Johnson turns on the question of whether or not the Oregon city’s prohibition against sleeping with a blanket in public spaces is in violation of the Eighth Amendment’s protection from “cruel and unusual punishment.”
More specifically, the Justices were tasked with answering the question: “Does enforcement of generally enforceable laws regulating camping on public property constitute ‘cruel and unusual punishment’ prohibited by the Eighth Amendment?”
Click Here for More Information on City of Grants Pass v. Johnson
Central to arguments made Monday was the Supreme Court’s 1962 ruling in the case of Robinson v. California in which the Justices determined it was unconstitutional to criminalize being a drug addict.
While this opinion did not prohibit the enforcement of laws against the conduct associated with being addicted to drugs — such as the possession of illicit substances — it did block the criminalization of drug addiction as a status.
This differentiation between status and conduct played a central role in Monday’s oral arguments.
Speaking on behalf of Grants Pass, Theane Evangelis made the case that the city’s law contained no language criminalizing homelessness as a status, but rather that the law universally prohibits the conduct of camping in public spaces.
Kelsi Corkran — attorney for plaintiff Gloria Johnson — and U.S. Deputy Solicitor General Edwin Kneedler, on the other hand, argued that because sleeping is a “human necessity” and having nowhere to sleep is intrinsic to the definition of being homeless, the city’s law as written effectively criminalizes the status of homelessness.
That said, Solicitor General Kneedler advocated for the Court to find the enforcement of specific “time, place, and manner” restrictions on sleeping in public space permissible, while still upholding the lower court’s prohibition on more general and sweeping bans.
Justice Sonia Sotomayor highlighted remarks made by Grants Pass officials in which it was said that they hoped the ban would make it so “uncomfortable” for the local homeless population that they would effectively be forced out of the area.
Evangelis, however, argued that because the act of camping in public spaces causes harm to everyone involved, the law was designed in an effort to encourage homeless individuals in the city to seek out and accept alternative arrangements for shelter.
During rebuttal, Evangelis also provided additional context for the comment referenced by Justice Sotomayor, describing it as an “isolated statement” from a three-hour meeting that saw a “wide-ranging discussion” of the “difficult policy problems” resulting from the effort to “balance those who wouldn’t take the help with the City’s needs to keep their public spaces open.”
Justice Clarence Thomas appeared to find the distinction between status and conduct relatively straightforward to discern, underscoring that the law in Grants Pass contains no language directly criminalizing homelessness itself.
Sotomayor, however, asked Evangelis to explain why the city would not take action against “stargazer[s],” “babies who have blankets over their head[s],” or “people who are sleeping on the beach” but would pursue enforcement measures against those who are sleeping outside because they are homeless.
Justice Elena Kagan also pushed Evangelis on this matter, likening the Grants Pass law to a ban on breathing in public and suggesting that it “goes way beyond” what is necessary to maintain order and ensure safety.
Other Justices appeared to be taking a more nuanced approach to parsing out where critical lines ought to be drawn, particularly with respect to how the availability of shelter impacts the constitutionality of camping bans and under what circumstances can shelter be considered as available.
For example, Justice Neil Gorsuch asked Kneedler if it would be constitutional to take action against an individual for sleeping outside when a shelter bed is vacant if mental health issues would preclude the person from spending the night in such a faciltiy. Gorsuch also posed similar hypotheticals with respect to drug addicts or alcoholics who would be unable to use substances at a shelter with available beds.
“You’re asking us to extend Robinson, I’m asking how far,” Gorsuch said.
The applicability of a “necessity defense” also factored heavily into Monday’s oral arguments.
Gorsuch broached the subject with Evangelis early on during the proceedings, asking the Grants Pass attorney if this would apply with respect to enforcement of the city’s anti-camping law.
Evangelis stated affirmatively that it would, going on to reference the defense again in response to a series of questions by Sotomayor centering around last-resort scenarios.
Kneedler was also questioned about how the necessity defense factors into this case, with Justice Kavanaugh suggesting that this option may “take care of most of the concerns, if not all, and, therefore, avoid the need for having to constitutionalize an area and have a federal judge superintend this rather than the local community.”
Kneedler pushed back on Kavanaugh’s interpretation, however, suggesting that a successful necessity defense “at least traditionally has required a much stronger sense of urgency and imminence than” the Eighth Amendment claim at heart of this case.
Corkran also challenged Evangelis’ take on the role played by the necessity defense, arguing that Oregon courts have yet to apply it “to this circumstance” and raising concerns that it may actually be unavailable with respect to the fines and citations attached to the law in Grants Pass.
Justice Ketanji Brown Jackson appeared at one point to question whether or not the Court needed to weigh in on the Eighth Amendment claim at all, pointing toward a new Oregon state law that she suggested would preclude the enforcement of the ban in Grants Pass.
Evagenlis countered this argument, however, by asserting that the “state’s law is very different” than the standards at play in this case, and regardless, the city believes its “law is satisfied” under the new statute.
All throughout Monday’s oral arguments, the vast majority of Justices from across the board frequently referred to the “complicated” and “difficult” nature of the policy questions faced by municipalities that are seeking to address a homelessness crisis within their jurisdiction.
Click Here to Read the Full Transcript from Monday’s Oral Arguments
As of now, it is not clear when the Justices will release their opinion for the case of Grants Pass v. Johnson, but all opinions are typically handed down before the Court recesses for the summer.
According to the Supreme Court’s website, unanimous decisions are typically released quickly, while those that generate a number of dissenting and concurring opinions may not be released until the last day of the term.
Click Here to Listen to Monday’s Oral Arguments
