July 8, 2024
On Friday, June 28, 2024, the United States Supreme Court issued its opinion in the case of City of Grants Pass, Oregon v. Gloria Johnson, et al., finding that the enforcement against homeless individuals of a generally applicable law regulating camping on public property did not constitute “cruel and unusual punishment” prohibited by the Eighth Amendment.
The City of Grants Pass has an ordinance that prohibits anyone from sleeping on public sidewalks, streets, or alleyways at any time. It also prohibits persons from occupying a “campsite” on all public property, such as parks, benches, or rights of way. The term “campsite” is defined by the city as “any place where bedding, sleeping bag, or other material used for bedding purposes, or any stove or fire is placed, established, or maintained for the purpose of maintaining a temporary place to live, whether or not such place incorporates the use of any tent, leanto, shack, or any other structure, or any vehicle or part thereof.” Johnson v. City of Grants Pass, 72 F.4th 868, 876 (9th Cir. 2023).
Three involuntarily homeless individuals who faced a real and imminent risk of being cited under the city’s ordinance challenged the city’s enforcement of these ordinances under a number of constitutional theories, including that, as applied to homeless individuals, enforcement would constitute cruel and unusual punishment prohibited under the Eight Amendment. Id. at 877.
The District Court for the District of Oregon agreed, finding that “the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being.” Blake v. City of Grants Pass, No. 1:18-cv-01823-CL, 2020 U.S. Dist. LEXIS 129494, at *30 (D. Or. July 22, 2020) quoting Martin v. City of Boise, 920 F.3d 584, 616 (9th Cir. 2019). The Ninth Circuit appellate court agreed, finding that the City “cannot, consistent with the Eighth Amendment, enforce its anti-camping ordinances against homeless persons for the mere act of sleeping outside with rudimentary protection from the elements, or for sleeping in their car at night, when there is no other place in the City for them to go.” Johnson v. City of Grants Pass, 72 F.4th 868, 896 (9th Cir. 2023). The Ninth Circuit stressed that its decision was a narrow one, holding “simply that it is unconstitutional to [punish] simply sleeping somewhere in public if one has nowhere else to do so.” Id.
The Supreme Court, in a 6-3 decision, overturned the lower court rulings. Writing for the majority, Justice Gorsuch reasoned that “[t]he Cruel and Unusual Punishments Clause focuses on the question what ‘method or kind of punishment’ a government may impose after a criminal conviction, not on the question whether a government may criminalize particular behavior in the first place or how it may go about securing a conviction for that offense.” City of Grants Pass, Oregon v. Gloria Johnson, et al., 603 U. S. ____ (2024). The fines and criminal penalties that are associated with the city’s ordinances, the Court held, do not qualify as “cruel and unusual punishment.” The Court found that “[t]he Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy.” City of Grants Pass, Oregon v. Gloria Johnson, et al., 603 U. S. ____ (2024).
The majority highlighted that the Grants Pass public-camping ordinances do not criminalize a person’s status, as the ordinances are generally applicable and prohibit actions undertaken by any person, regardless of status. As stated by the Court: “It makes no difference whether the charged defendant is currently a person experiencing homelessness, a backpacker on vacation, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.” Id. Not only are the fines and penalties imposed not “cruel and unusual,” but the Court found that the Eighth Amendment was not implicated as the ordinances criminalize conduct rather than status.
In rendering its decision, the Supreme Court squarely preserved local control and validated local ordinances that regulate or prohibit camping on public property. Justice Gorsuch noted that cities and states are not bound to adopt public-camping laws, and that states may restrain local regulation of public camping (as the State of Oregon did just last year). The Court also remarked that even under a public camping law like the Grants Pass ordinance, potential defendants enjoy other legal and Constitutional protections against various improper prosecutorial actions including the First Amendment, Due Process clause, and potential state statutes protecting the rights of the homeless. The Court pointed out that these protections may limit or restrict how one is punished for public camping – but that the question of whether one can be punished for camping is not a question under those legal provisions, or, most pointedly, under the Eighth Amendment.
Illinois has a statute that appears to be the type contemplated by the Court. The Illinois Bill of Rights for the Homeless Act, 775 ILCS 45/1 et seq., provides that no person’s rights, privileges, or access to public services may be denied based on homelessness. Specifically, the Act provides that a person experiencing homelessness has the right: (1) to use and move freely in public spaces; (2) to equal treatment by all State and municipal agencies; (3) not to face discrimination while maintaining employment due to their lack of permanent mailing address or their mailing address being that of a shelter or social service provider; (4) to emergency medical care; (5) to vote, register to vote, and receive documentation necessary to prove identity for voting; (6) to protection from disclosure of their records and information provided to homeless shelters and service providers to State, municipal, and private entities without appropriate legal authority and the right to confidentiality of personal records and information in accordance with all limitations on disclosure established by the federal law; and (7) to a reasonable expectation of privacy in their personal property. 775 ILCS 45/10.
This decision highlights that the task of developing policies, programs and strategies to address homelessness lies in the hands of state and local legislators and policymakers. Municipalities may enforce previously adopted anti-camping ordinances, or adopt new ordinances prohibiting sleeping or camping on public property. Municipalities should review their codes and enforcement procedures relating to use of public property and determine if their policies should be updated or modified in light of this decision.
A link to the full Court’s decision can be found here. For more information about this case, contact Caitlyn Culbertson or any Elrod Friedman attorney.