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The crisis of increasing homelessness across the country has generated a number of unregulated encampments in public parks, posing a significant challenge to governmental entities charged with preserving the public health, safety and welfare in communities (NRPA Homelessness in Parks report).

In the case of City of Grants Pass v. Johnson, 2024 U.S. LEXIS 2881 (U.S. 6/28/2024), the sole issue before the Supreme Court of the United States was whether “the Cruel and Unusual Punishments Clause of the Eighth Amendment prohibits the enforcement of public-camping laws.”

In Martin v. Boise, 920 F. 3d 584 (2019) (“Martin”), the U.S. Court of Appeals for the Ninth Circuit had held the Eighth Amendment’s Cruel and Unusual Punishments Clause barred the City of Boise, Idaho, from enforcing its public-camping ordinance against homeless individuals who lacked “access to alternative shelter.” The public-camping ordinance in Boise made it a misdemeanor to use “streets, sidewalks, parks, or public places” for “camping.”

As defined by the Ninth Circuit, “access” to alternative shelter was lacking whenever “there is a greater number of homeless individuals in a jurisdiction than the number of available beds in shelters.” According to the Ninth Circuit, nearly three quarters of Boise’s shelter beds were not “practically available” because the city’s charitable shelters had a “religious atmosphere.” Boise was, therefore, enjoined (i.e., prohibited) from enforcing its camping laws against the plaintiffs.

Beyond the Ninth Circuit, no other federal circuit court of appeals in the remainder of the country had adopted this Eighth Amendment principle with respect to public-camping laws enunciated in Martin. In fact, several dissenting jurists within the Ninth Circuit itself had argued Martin was inconsistent with the Eighth Amendment Cruel and Unusual Punishments Clause. In this dissenting view, the Eighth Amendment prohibits certain methods of punishment a government may impose after a criminal conviction, but it does not “impose any substantive limits on what conduct a state may criminalize.”

After Martin, similar suits proliferated against Western cities within the Ninth Circuit wherein federal courts had applied Martin to impose injunctions against enforcement of laws and ordinances restricting camping in public spaces.

City of Grants Pass Camping Ordinances

One such Martin injunction had been issued by a federal district court against the City of Grants Pass. Located on the banks of the Rogue River in southwestern Oregon, the city is home to roughly 38,000 people. Among them are an estimated 600 individuals who experience homelessness on a given day.

Like many American cities, Grants Pass has laws restricting camping in public spaces. One such ordinance prohibited sleeping “on public sidewalks, streets, or alleyways.” Grants Pass Municipal Code §5.61.020(A) (2023). A second ordinance prohibited “camping” on public property. §5.61.030.

“Camping” was defined in the ordinance as “setting up or remaining in or at a campsite.” A “campsite” was defined as “any place where bedding, sleeping bags, or other material used for bedding purposes, or any stove or fire is placed for the purpose of maintaining a temporary place to live.” §§5.61.010(A)-(B). A third law prohibited “camping” and “overnight parking” in the city’s parks. §§6.46.090(A)-(B).

Penalties for violating these ordinances escalated stepwise. An initial violation may trigger a fine. §§1.36.010(I)-(J). Those who received multiple citations could be subject to an order barring them from city parks for 30 days. §6.46.350. In addition, violations of those orders could constitute criminal trespass, punishable by a maximum of 30 days in prison and a $1,250 fine. Ore. Rev. Stat. §§164.245, 161.615(3), 161.635(1)(c) (2023).

The City of Grants Pass had traditionally taken a light-touch approach to enforcement. Neither of the named plaintiffs in this case had been subjected to an order barring them from city property or to criminal trespass charges. The city’s officers had been directed “to provide law enforcement services to all members of the community while protecting the rights, dignity, and private property of the homeless.” Officers were further instructed that “homelessness is not a crime” and were “encouraged” to render “aid” and “support” to the homeless whenever possible.

Grants Pass Homeless Lawsuit

Following the decision of the Ninth Circuit in Martin, two homeless individuals, Plaintiffs Gloria Johnson and John Logan (Plaintiffs), filed suit in federal district court challenging the city’s public-camping laws. On behalf of “all involuntarily homeless people living in Grants Pass,” Plaintiffs claimed the city’s ordinances violated the Eighth Amendment’s Cruel and Unusual Punishments Clause.

Applying the Ninth Circuit’s reasoning in Martin, the federal district court enjoined (i.e., prohibited) the city from enforcing its public-camping laws against the homeless. In so doing, the district court found everyone without shelter in Grants Pass was “involuntarily homeless” because the city’s total homeless population outnumbered its “practically available” shelter beds. According to the district court, none of the beds at Grants Pass’ charity-run shelter qualified as “available,” because the shelter has rules requiring residents to abstain from smoking and attend religious services.

On appeal, the Ninth Circuit affirmed the district court, finding all unsheltered individuals in Grants Pass qualified as “involuntarily homeless,” because the city’s homeless population exceeded “available” shelter beds. Further, under Martin, the federal appeals court held the Grants Pass homeless could not be punished for camping with “rudimentary forms of protection from the elements,” like blankets and bedding.

The City of Grants Pass filed a writ of certiorari in the United States Supreme Court, petitioning for review of this Ninth Circuit decision. A large number of states, cities and counties from across the Ninth Circuit and the country filed amicus (friend of the court) briefs, joining the City of Grants Pass in urging the U.S. Supreme Court to grant review and “assess the Martin experiment.” The Supreme Court granted the review request.

Addressing the Homelessness Crisis

As characterized by the Supreme Court, Martin had thwarted good faith attempts by cities across the West, from Phoenix to Sacramento, to address homelessness:

Many cities across the American West face a homelessness crisis. The causes are varied and complex, the appropriate public policy responses perhaps no less so. Like many local governments, the City of Grants Pass, Oregon, has pursued a multifaceted approach. Recently, it adopted various policies aimed at “protecting the rights, dignity, and private property of the homeless.”

It appointed a “homeless community liaison” officer charged with ensuring the homeless receive information about “assistance programs and other resources” available to them through the city and its local shelter. And it adopted certain restrictions against encampments on public property.

As described by the Court, individuals “experiencing homelessness may be as diverse as the Nation itself”:

[T]hey are young and old and belong to all races and creeds. People become homeless for a variety of reasons, too, many beyond their control. Some have been affected by economic conditions, rising housing costs, or natural disasters. Some have been forced from their homes to escape domestic violence and other forms of exploitation. And still others struggle with drug addiction and mental illness. By one estimate, perhaps 78 percent of the unsheltered suffer from mental-health issues, while 75 percent struggle with substance abuse.

According to the Court, the “exponential increase in encampments in recent years has resulted in an increase in crimes both against the homeless and by the homeless.” Moreover, despite expanded shelter capacity provided by private organizations, city officials and States, the Court found the number of unsheltered homeless individuals continues to grow. The Court further noted homeless individuals oftentimes reject offers of available shelter for a variety of reasons, including “concerns for their safety or the rules some shelters impose regarding curfews, drug use, or religious practices.”

While a majority of cities have laws restricting camping in public spaces, the Court cited a response from the National League of Cities to criticism that “these laws can create a revolving door that circulates individuals experiencing homelessness from the street to the criminal justice system and back”:

[T]hese public-camping regulations are not usually deployed as a front-line response “to criminalize homelessness.” Instead, they are used to provide city employees with the legal authority to address “encampments that pose significant health and safety risks” and to encourage their inhabitants to accept other alternatives like shelters, drug treatment programs, and mental-health facilities.

In addition to most cities, the Court noted the federal government itself also had exercised regulatory authority to clear certain “dangerous” encampments while also restricting “the storage of sleeping bags,” as well as other “sleeping activities,” on park lands. 36 CFR §§7.96(i), (j)(1) (2023).

Injunction Threat to Homeless Policy

While “different governments may use these laws in different ways and to varying degrees,” the Supreme Court acknowledged a large number of the “friends of the court” amicus briefs submitted by cities and States had argued the Ninth Circuit had “inappropriately limited the tools available to local governments for tackling what is a complex and difficult human issue.”

In particular, these amicus briefs claimed the threat of Martin injunctions had “paralyzed even commonsense and good-faith efforts at addressing homelessness,” preventing “local governments from pursuing effective solutions to this humanitarian crisis while simultaneously protecting the remaining community’s right to safely enjoy public spaces.”

Moreover, many cities claimed the threat of a Martin injunction had increased the number of unsheltered homeless by “weakening the ability of public officials to persuade persons experiencing homelessness to accept shelter beds and other services.”

Eighth Amendment Punishment Focus

As described by the Supreme Court, the origins and meaning of the Eighth Amendment’s prohibition against “cruel and unusual punishments” focused on “the method or kind of punishment” a government may “impose for the violation of criminal statutes”:

In the 18th century, English law still “formally tolerated” certain barbaric punishments like disemboweling, quartering, public dissection, and burning alive, even though those practices had by then fallen into disuse.

The Cruel and Unusual Punishments Clause was adopted to ensure that the new Nation would never resort to any of those punishments or others like them. Punishments like those were “cruel” because they were calculated to super add terror, pain, or disgrace. And they were “unusual” because, by the time of the Amendment’s adoption, they had “long fallen out of use.”

The Supreme Court, however, found the Eighth Amendment did not “address what a government may criminalize and how it may go about securing a conviction.” Unlike the Eighth Amendment’s focus on punishment, in the opinion of the Court, other constitutional provisions would govern criminal liability procedures:

The Due Process Clauses of the Fifth and Fourteenth Amendments ensure that officials may not displace certain rules associated with criminal liability….

The Fifth and Sixth Amendments require prosecutors and courts to observe various procedures before denying any person of his liberty, promising for example that every person enjoys the right to confront his accusers and have serious criminal charges resolved by a jury of his peers.

Accordingly, in the opinion of the Supreme Court, the Eighth Amendment provided “a poor foundation on which to rest the kind of decree the Plaintiffs seek in this case and the Ninth Circuit has endorsed since Martin”:

The 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.

Moreover, in this particular case, the Supreme Court found “the criminal punishments Grants Pass imposes” in no way “qualify as cruel and unusual” punishment under the Eighth Amendment:

[U]nder the city’s ordinances, an initial offense may trigger a civil fine. Repeat offenses may trigger an order temporarily barring an individual from camping in a public park. Only those who later violate an order like that may face a criminal punishment of up to 30 days in jail and a larger fine. None of the city’s sanctions [qualify] as cruel because none [are] designed to superadd [i.e., increase] terror, pain, or disgrace.

The Court further noted the anti-camping ordinances in the City of Grants Pass merely “forbids actions like occupying a campsite on public property for the purpose of maintaining a temporary place to live”:

Under the city’s laws, it makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.

Accordingly, the Supreme Court held the Eighth Amendment “does nothing to curtail a State’s authority to secure a conviction” when “the accused has committed some act society has an interest in preventing.” As characterized by the Court, these anti-camping laws essentially proscribed a type of conduct regardless of one’s status, and therefore, enforcement of these laws criminalizes a certain type of behavior, the act of camping, not the “mere status” of being involuntarily homeless.

Legal Protection Alternatives

In addition, the Supreme Court noted “a variety of other legal doctrines and constitutional provisions work to protect those in our criminal justice system from a conviction”:

Like some other jurisdictions, Oregon recognizes a “necessity” defense to certain criminal charges. It may be that defense extends to charges for illegal camping when it comes to those with nowhere else to go. Insanity, diminished capacity, and duress defenses also may be available in many jurisdictions….

For its part, the Constitution provides many additional limits on state prosecutorial power, promising fair notice of the laws and equal treatment under them, forbidding selective prosecutions, and much more besides.

The Supreme Court further found “States and cities are free as well to add additional substantive protections” for unsheltered homeless individuals effectively “camping” in public parks and spaces:

Since this litigation began, for example, Oregon itself has adopted a law specifically addressing how far its municipalities may go in regulating public camping. For that matter, nothing in today’s decision prevents States, cities, and counties from going a step further and declining to criminalize public camping altogether. All this represents only a small sample of the legion protections our society affords a presumptively free individual from a criminal conviction.

Judicial Homeless Policy?

In the opinion of the Supreme Court, Martin’s application of the Eighth Amendment’s Cruel and Unusual Punishments Clause to address the problem of homeless encampments in public parks and spaces would effectively freeze public policy into “a rigid constitutional mold” dictated by the “judicially preferred approach” by individual federal judges.

In the opinion of the Court, the Ninth Circuit’s “Martin experiment” exemplified “much of what can go wrong when courts try to resolve matters like those unmoored from any secure guidance in the Constitution”:

Under Martin, cities must allow public camping by those who are “involuntarily” homeless. But how are city officials and law enforcement officers to know what it means to be “involuntarily” homeless, or whether any particular person meets that standard?

Is it enough that a homeless person has turned down an offer of shelter? Or does it matter why? Cities routinely confront individuals who decline offers of shelter for any number of reasons, ranging from safety concerns to individual preferences. How are cities and their law enforcement officers on the ground to know which of these reasons are sufficiently weighty to qualify a person as “involuntarily” homeless?

In the opinion of the Court, answers to those public policy questions “cannot be found in the Cruel and Unusual Punishments Clause” of the Eighth Amendment and federal judges do not “enjoy any special competence to provide them.”

Defining “Involuntarily Homeless”

According to the Supreme Court, cities across the West had reported the Ninth Circuit’s “ill-defined involuntariness test” in Martin had proven “unworkable,” leaving cities “with little or no direction as to the scope of their authority in their day-to-day policing contacts.”

As described by the Court, the “involuntariness test” applied in Martin had said “a city needs to consider individuals ‘involuntarily’ homeless (and thus entitled to camp on public property) only when the overall homeless population exceeds the total number of ‘adequate’ and ‘practically available’ shelter beds.” The Court further noted the Martin test for involuntary homelessness had “proven all but impossible to administer in practice” for city officials “to keep an accurate accounting of those experiencing homelessness on any given day”:

Often, a city’s homeless population fluctuates dramatically, in part because homelessness is an inherently dynamic status. While cities sometimes make rough estimates based on a single point-in-time count, they say it would be impossibly expensive and difficult to undertake that effort with any regularity.

Adequate Shelter Beds?

Assuming “even large cities could keep a running tally of their homeless citizens” and “could keep a live inventory of available shelter beds,” the Court found cities would still face questions “over which shelter beds count as ‘adequate’ and ‘available’ under Martin”:

Is a bed “available” to a smoker if the shelter requires residents to abstain from nicotine, as the shelter in Grants Pass does? Is a bed “available” to an atheist if the shelter includes “religious” messaging? And how is a city to know whether the accommodations it provides will prove “adequate” in later litigation?

Once more, a large number of cities in the Ninth Circuit tell us they have no way to be sure. What may be available, appropriate, or actually beneficial to one homeless person, might not be so to another.

In addition, the Supreme Court noted the Ninth Circuit in Martin had held that “involuntarily homeless individuals cannot be punished for camping with materials necessary to protect themselves from the elements.” Moreover, the Court found Martin would not allow cities to “proscribe life-sustaining acts that flow necessarily from homelessness.” While Plaintiffs had suggested that “a blanket is all that is required in Grants Pass,” the Court questioned whether “a colder climate” might “trigger a right to permanent tent encampments and fires for warmth”:

Because the contours of this judicial right are so “uncertain,” cities across the West have been left to guess whether Martin forbids their officers from removing everything from tents to “portable heaters” on city sidewalks.

There is uncertainty, as well, over whether Martin requires cities to tolerate other acts no less “attendant to survival” than sleeping, such as starting fires to cook food and “public urination and defecation.”

While “cities and States are not bound to adopt public-camping laws,” the Supreme Court held the Cruel and Unusual Punishments Clause of the Eighth Amendment does not prohibit the enforcement of such public-camping laws. Moreover, if the Ninth Circuit’s Martin judgment was affirmed, in the opinion of the Supreme Court, “it would expand its experiment from one circuit to the entire country, a development without any precedent in this Court’s history.”

Conclusion

Accordingly, the U.S. Supreme Court held the Eighth Amendment does not grant federal judges primary responsibility for assessing the causes and devising public policy responses to address homelessness. The Supreme Court, therefore, reversed the judgment of the Ninth Circuit and remanded (i.e., sent back) this case to the lower federal court “for further proceedings consistent with this opinion.”

SEE ALSO: “Camping Ordinance Criminalized Homeless Status,” James C. Kozlowski, Parks & Recreation, July 2019, Vol. 54, Iss. 7; “‘Sweeps’ of Homeless Encampments in Parks During COVID-19,” James C. Kozlowski, Parks & Recreation, February 2021, Vol. 56, Iss. 2; “Due Process Notice for COVID-19 Sweeps at Homeless Encampment,” James C. Kozlowski, Parks & Recreation, April 2021, Vol. 56, Iss. 4.

James C. Kozlowski, J.D., Ph.D., is an Attorney and Emeritus Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Archive of articles (1982 to present).