Supreme Court appears supportive of city's anti-camping ordinance

In oral arguments featuring pointed questions in a case that will affect government policy on homelessness in California and across the West Coast, the U.S. Supreme Court on Monday appeared largely sympathetic to an Oregon city's argument that its anti-camping ordinance does not violate the Eighth Amendment prohibition on cruel and unusual punishment.

Theane D. Evangelis, a Gibson, Dunn & Crutcher LLP partner who represents Grants Pass, Oregon, argued that two 9th Circuit Court of Appeals decisions wrongly turned homeless policy best decided by policymakers into a constitutional issue, and rejected the argument that a 1962 precedent rejecting a law criminalizing drug addiction should apply to unhoused people.

Evangelis

She asked that the court reverse the 9th Circuit's decision in the Grants Pass case and an earlier circuit decision. City of Grants Pass v. Johnson, 23-175 (S. Ct., filed Aug. 22, 2023; Martin v. City of Boise, 2018 DJDAR 8871 (9th Circ., filed Oct. 29, 2015).

Justices appointed by Democrats blasted her position, but the court's Republican majority seemed unpersuaded by arguments made by lawyers for the homeless plaintiffs and the Biden administration that the 1962 ruling - Robinson v. California, 370 U.S. 660 - should apply to homeless residents who face civil fines and criminal penalties if they sleep outside.

The implications of the court's decision, expected in late June or early July, are significant, especially in California, where Gov. Gavin Newsom and a number of cities have sided with Grants Pass, arguing that they are hamstrung by the 9th Circuit rulings and subsequent injunctions limiting their ability to protect public safety and homeless residents themselves - even if cities do not have enough shelter beds to accommodate all unhoused residents.

Kelsi B. Corkran, an attorney with the Institute of Constitutional Advocacy and Protection who represents the homeless plaintiffs, said the Grants Pass ordinances are "status-based" -- like the Robinson law -- and thus unconstitutional because the restrictions are targeted only at homeless residents.

"The ordinances, by design, make it physically impossible for homeless people to live in Grants Pass without facing endless fines and jail time," she told the justices. The goal, she added, is to force them out of town by imposing a 24-hour-a-day, seven-days-a-week ban.

Chief Justice John G. Roberts Jr., an appointee of President George W. Bush, took an unusually active role in the arguments, questioning Deputy Solicitor General Edwin S. Kneedler why the court - and federal judges in general, who are handling a host of lawsuits over city homeless statutes - should wade into the decisions of municipalities to build more homeless shelters as opposed to other priorities.

"Why would you think these nine people are the best people to judge and weigh those policy judgments?" he asked.

Kneedler, whose government brief attempted to strike a middle ground by arguing that Robinson prohibits ordinances that bar sleeping in public while supporting time, place and manner restrictions or bans on tents and fires that cities may impose, said it is not allowed for "a city to banish its own residents."

"Sleeping outside is an essential human function," he said. "Essentially, homeless people would have no place to be."

Roberts questioned the premise that cities are violating the Constitution when they ban "camping" by homeless people in public parks when the same activity is permitted by others, asking if such a statute is allowed if adequate shelter space is available in a nearby town.

"Banishment is a strange word when you are talking about something 10 minutes away," he said.

Roberts and other justices appointed by Republican presidents questioned the distinction between status and conduct, raising questions about people with mental health or substance abuse problems or whether homeless people would be allowed to urinate or defecate outside.

"You're asking us to extend Robinson and I'm asking how far," said Justice Neil M. Gorsuch, an appointee of President Donald Trump.

The key votes will likely be Justice Brett M. Kavanaugh and Justice Amy Coney Barrett, both Trump appointees, who expressed more sympathy for the homeless plaintiffs' position. But Kavanaugh raised concerns about "constitutionalizing" the problem by invoking the Eighth Amendment and federal courts "micromanaging" the issue in each city.

Justice Ketanji Brown Jackson, an appointee of President Joe Biden, said Grants Pass was imposing civil and criminal punishments not on everyone who sleeps outside with a blanket, but only homeless people.

"Why isn't that really just punishing the status?" she asked.

Evangelis said the ordinances were simply enforcing trespassing laws, but Jackson was not persuaded.

While she said it's harmful for people to live in public spaces, Justice Sonia Sotomayor - an appointee of President Barack Obama - said the Grants Pass solution is worse. "Neither is providing them with nothing," she said. "Are they supposed to kill themselves, not sleeping?"

Several justices asked about an Oregon law that allows criminal defendants to raise a "necessity defense" in such cases, but Kneedler and Corkran both said the statute had not been applied to the Grants Pass ordinance or any individual homeless defendants.

Kneedler urged the justices to send the case back to lower courts.