Supreme Court will hear homeless case that bedevils cities

The U.S. Supreme Court on Friday agreed to review a 9th U.S. Circuit Court of Appeals decision that banned anti-camping ordinances because they violated the Eighth Amendment prohibition against cruel and unusual punishment.

The decision sets the stage for a battle over whether ordinances that bar camping or sleeping outside are unconstitutional if cities do not have enough shelter space for unhoused people. Johnson v. City of Grants Pass, 23-175 (S. Ct., filed Aug. 22, 2023).

The outcome of the case will affect cities all along the West Coast, from San Francisco and Los Angeles to the small town of Grants Pass, Oregon, the petitioner in this case.

A 9th Circuit panel on Thursday affirmed a preliminary injunction blocking San Francisco ordinances that allowed the clearing of homeless camps, with Judge Lucy H. Koh - an appointee of President Joe Biden - ruling that she is bound by two recent 9th Circuit precedents. Coalition on Homelessness et al. v. City and County of San Francisco, 2024 DJDAR 410 (9th Circ., filed Jan. 23, 2023).

Those precedents - Grants Pass and Martin v. City of Boise, 2018 DJDAR 8871 (9th Circ., filed Oct. 29, 2015) - has sharply divided the 9th Circuit along partisan lines, with judges appointed by Democratic presidents striking down anti-camping ordinances in Grants Pass and Boise, Idaho. Martin v. City of Boise, 2018 DJDAR 8871 (9th Circ., filed Oct. 29, 2015).

"The anti-camping ordinances prohibit plaintiffs from engaging in activity they cannot avoid," Senior U.S. District Judge Roslyn O. Silver of the District of Arizona, an appointee of President Bill Clinton, wrote for the majority in Grants Pass. "The civil citations issued for behavior plaintiffs cannot avoid are then followed by a civil park exclusion order and, eventually, prosecutions for criminal trespass."

But every appointee of Republican presidents dissented last year from the 9th Circuit's decision not to rehear the case en banc.

Senior 9th Circuit Judge Diarmuid F. O'Scannlain, an appointee of President Ronald Reagan, called Silver's ruling "a dubious holding premised on a fanciful interpretation of the Eighth Amendment."

"With this decision, our Circuit's jurisprudence now effectively guarantees a personal federal constitutional 'right' for individuals to camp or to sleep on sidewalks and in parks, playgrounds, and other public places in defiance of traditional health, safety, and welfare laws," he wrote.

Gov. Gavin Newsom and several California cities run by Democrats have filed amicus briefs supporting the Grants Pass writ of certiorari, with the San Francisco city attorney's office going further and asking the Supreme Court to reverse Grants Pass and a predecessor decision without hearing arguments.

The Supreme Court didn't go that far on Friday, but the decision by the justices to take the case was cheered by Theane D. Evangelis, a Gibson, Dunn & Crutcher LLP partner who represents Grants Pass, who wrote that the 9th Circuit's decision in Grants Pass and Boise "have contributed to the growing problem of encampments in cities across the West."

"These decisions are legally wrong and have tied the hands of local governments as they work to address the urgent homelessness crisis," she added. "The tragedy is that these decisions are actually harming the very people they purport to protect. We look forward to presenting our arguments to the Supreme Court this spring."

Edward Johnson of the Oregon Law Center said in a Zoom interview the question for the court is whether cities like Grants Pass "can punish homeless people for trying to survive when they have nowhere else to go."

The Grants Pass homeless statutes are "punishing people based on their status," which he said violates Supreme Court precedents involving criminal prosecutions of alcoholics and drug addicts.

A 1962 U.S. Supreme Court decision overturned a law that made it a crime to be addicted to narcotics as cruel and unusual punishment under the Eighth Amendment. Robinson v. California, 370 U.S. 660 (1962).

John Do, a senior staff attorney with the ACLU Foundation of Northern California who represents homeless plaintiffs in the San Francisco case, expressed relief in a statement that the court did not summarily reverse Grants Pass and Boise without argument.

Plaintiffs in that case said there are distinctions between the Grants Pass case and the one in San Francisco, as there are some additional issues. For the time being, a preliminary injunction against San Francisco remains in place with a trial scheduled for October.

San Francisco City Attorney David Chiu, one of the Democratic officials who are in an unusual alliance with conservatives on the homeless issue, wrote in a statement that Grants Pass "misapplied the law and has left cities without the necessary tools to address homelessness and keep streets safe and accessible."

"Given the impossible situation our city finds itself in, it is appropriate for the Supreme Court to step in and resolve these questions," he added.