Recently the Supreme Court considered City of Grants Pass v. Johnson, a case about an ordinance in a small Oregon town aimed at those who “camp” on public property. Grants Pass’ ordinance defined the term “camping” as “sleeping with a blanket or other bedding materials on streets, sidewalks, in parks,” which includes sleeping or living in a car (a.k.a homeless people).
Grants Pass is about the size of Oxford and is 400 miles north of San Francisco and 250 miles south of Portland on Interstate 5, which connects all three. Grants Pass looks like a lovely small city, and, frankly, it looks like a good place to be homeless; the small-town environment, proximity to large homeless populations, and Interstate access have created a homeless community that the Grants Pass town leaders find to be a problem. The stated purpose of the laws is to keep the public spaces sanitary and promote health and safety. Penalties start at $295 fines, repeat offenders face increasing fines and eventually a charge of criminal trespass and thirty days in jail.
Grants Pass has several homeless shelters, but the two female plaintiffs who sued the city call those shelters “a living hell” where a woman is not safe due to the prevalence of theft, fighting, and rape, and where a person cannot walk without stepping on a used drug needle. These plaintiffs argued that they did not voluntarily choose to “camp” (sleep in their cars), rather, they had no other option due to the unsafe conditions of the shelters. They contend the ordinance imposes cruel and unusual punishment for sending them to jail for sleeping in the only safe place where they could sleep.
The lower courts have agreed and issued an injunction (stop order) prevent enforcement of the penalties—unless Grants Pass offers all homeless people a safe alternative to camping on public property. In other words, if a city offers the homeless a safe shelter, and then, instead of staying at that safe shelter, a homeless person chooses to “camp” on public property, then that person is deciding to camp on public property and you can punish that person for that decision. If there is really no option but to “camp,” then you are punishing a person for being homeless, not for the decision to reject safe shelter and choose to camp.
Let’s look at further explanation of that outcome (because I probably have not clearly explained it).
The lower courts relied Robinson v. California (1962) where the defendant faced 90 days in jail for violating a law that said “no person shall be addicted to narcotics.” The Supreme Court said that law violated the Eighth Amendment, because the government cannot punish a person’s “status.” In Robinson, the status was being an addict, and punishing a person for being addicted is cruel and unusual punishment. But the government can punish “conduct,” conduct such as possessing or using illegal drugs.
Applied to Grants Pass, when the only safe place to sleep is “camping,” the person has no decision to make, they must camp, and when there is nowhere else to sleep, punishing camping is punishing a person for being homeless (status). However, if there is another safe option, a person camping has made the decision (conduct) to reject the safe shelter, then punishing camping is punishing the decision (conduct) to camp instead of choosing the safe shelter option.
If Grants Pass can offer all homeless safe shelter, then they can punish a person for camping on public property without violating the Constitution. (Author’s question—what about people who deny medical and/or addiction treatment? They have made a choice to be homeless. Is their homelessness a status or a decision/action?).
Justice Kavanaugh pointed out that all this “status” stuff can be avoided because the “necessity defense” to criminal charges solves everyone’s concerns and insures that local authorities manage their own homeless issues (without the big federal government stepping and telling Grants Pass what to do). The necessity defense provides that a person accused of a crime can beat the charge by showing that their illegal conduct could not be avoided (it was “necessary”). If a homeless person has no safe shelter to use, then “camping” cannot be avoided – it was necessary to camp. Kavanaugh’s point is that the local solution trumps the Supreme Court’s option to make a constitutional pronouncement.
As a “keep it local” guy myself, I like this argument, in principle, but, in practice, many (if not a vast majority) of the homeless have no realistic chance of successfully navigating the local court system to assert the necessity defense: no way to get to court, no address to receive notice letters, no money for lawyers, and many have no way to coherently communicate their living options. (Authors note, this is why public defenders should get identical funding as prosecutors—to help people through the criminal system).
In addition to the local solution, the Court noted a state-level solution. After Grants Pass adopted the “no camping” ordinance, Oregon enacted a statute prohibiting a blanket ban on homeless and requiring homeless control regulations to be “reasonable time, place, and manner” restrictions. Cities may not completely ban the homeless, and the Grants Pass law might not be legal under the new state law. Justice Brown suggested sending the case down to lower courts to make that call. But not every state has a state-wide homeless law, and, even if the Court avoids making a substantive decision, perhaps it will give guidance to other local governmental entities in regulating homeless living. But nothing is really going to help until the nation makes mental health and addiction treatment a priority and those who need it can be compelled to receive that treatment.
Mitchell Driskell has practiced law for twenty-two years. He is currently with the Tannehill & Carmean firm. You can reach him at 662.236.9996 or mitchell@tannehillcarmean.com. He practices personal injury law, criminal law, and family law.
