[ed. Why it's now easier to remove or relocate homeless tent encampments.]
Martin held that enforcing camping regulations against homeless people violated the Eighth Amendment’s prohibition on cruel and unusual punishment if there were more homeless people in a city than available shelter beds. (...)
Homelessness Turned into a Legal Storm
Martin v. Boise
The Ninth Circuit first held that camping regulations could not be enforced against homeless people in Martin v. Boise. The Ninth Circuit then expanded Martin with its decision in Johnson v. Grants Pass.
Under Martin, the Eighth Amendment means that if there are no “available” shelter beds, it’s cruel and unusual punishment to issue a homeless person any kind of criminal penalty for violating a city’s camping ordinance.
The Ninth Circuit reasoned that because the unhoused have to exist somewhere, fining them for violating camping ordinances is no different than criminalizing their status as a homeless person. This new rule made it very difficult for cities to push homeless individuals into services.
Instead, the ruling empowered homeless individuals to push back at local government. Justice Gorsuch, who authored the decision in Johnson, describes how people in San Francisco who were homeless would cite the Martin case by name when rejecting city services and “as their justification to permanently occupy and block public sidewalks.” Johnson, 603 US ___ at 9 (2024) (citing San Francisco Brief at 8-9).
Johnson v. Grants Pass prior to reaching the Supreme Court
Within weeks of Martin v. Boise being decided, the same lawyers filed Johnson v. Grants Pass in the U.S. District Court for Oregon. Johnson expanded upon Martin. While Martin only prohibited issuing criminal fines to the homeless, Johnson held that even issuing civil citations to the homeless was a cruel and unusual punishment that violated the U.S. Constitution.
The city of Grants Pass’ single homeless shelter was never more than 60% full. Despite that, the trial court held that there were no “adequate” shelter beds available. The court observed since the city’s only shelter was operated by Gospel Rescue Mission, and included a religious component, it was not “adequate” for everyone. Some people did not want to be exposed to a religious message.
A second way that Johnson expanded Martin was by finding that homeless individuals did not have to wait until they were cited or prove that no shelter bed was available to sue the city. Instead, all homeless persons could join together in a single class action lawsuit and sue the city preemptively. It was then the city’s burden to prove that “adequate” shelter beds were available for everyone.
Finally, Johnson expanded Martin by giving homeless persons not only immunity from camping laws, but also an affirmative right to protection from the elements. In other words, Martin ruled you can’t cite someone who has no place to go. Johnson said they were also entitled to protection from the elements as well.
The Ninth Circuit rulings left local government officials and law enforcement paralyzed, creating an unmanageable focus on “adequate” daily shelter space. Cities wishing to enforce camping regulations had to count the number of involuntarily homeless people each evening and then how many shelter beds were available. Additionally, each shelter bed had to be matched to each homeless person. Shelter space didn’t count if the shelter didn’t allow pets and the person had a dog, or the shelter didn’t allow smoking and the homeless person used cigarettes, or the shelter was organized by a religious organization and the homeless person didn’t want to be exposed to a religious message.
Practically speaking, matching the various needs of the homeless to the different types of shelters and keeping a daily count of available beds was an overwhelming task for any city. Local government could no longer compel homeless individuals to use services, resulting in widespread tent encampments.
Ending the Storm: Petitioning the Supreme Court
Because this unworkable rule tied the hands of local officials throughout the western United States, there was widespread frustration with Martin and Johnson. CIS encouraged the city of Grants Pass to petition the U.S. Supreme Court to review the case. After that, something remarkable happened.
Amicus briefs were filed by numerous entities including:
- National League of Cities;
- League of Oregon Cities (LOC);
- Association of Oregon Counties (AOC);
- Special Districts Association of Oregon (SDAO);
- California Governor Gavin Newsom;
- San Franciso Mayor London Breed;
- League of California Cities;
- Association of Idaho Cities;
- League of Arizona Cities and Towns;
- North Dakota League of Cities;
- Cities of Anchorage, Seattle, Spokane, Tacoma, Portland, San Francisco, Los Angeles, San Diego, Las Vegas, Phoenix, Albuquerque, Honolulu, Colorado Springs, Milwaukee, Providence, and Saint Paul;
- District Attorneys of Sacramento and San Diego;
- California State Sheriffs Association;
- California Police Chiefs Association;
- Washington State Association of Sheriffs and Police Chiefs; and
- 20 Different States, and more.
The U.S. Supreme Court’s Decision in Johnson v. Grants Pass
On April 22, 2024, the Supreme Court heard oral arguments on the case. The focus was not on who should do what but on interpreting the Eighth Amendment. They debated whether it was cruel and unusual punishment under the Eighth Amendment to ticket, fine, or jail someone repeatedly trespassing on city property because they were homeless and had “nowhere else to go.” The issue for the court was whether the Eighth Amendment regulates the type of punishments applied to a crime or whether it regulates what types of behavior can be considered a crime.
Those in favor of upholding the Grants Pass case argued that the Eighth Amendment prohibits punishing someone for their “involuntary” status, such as homelessness, deeming it cruel and unusual. The opposing side contended that the Eighth Amendment only addresses the type of punishment, not the status of the person being punished.
The Eighth Amendment, the Supreme Court ruled, addresses methods of punishment, not who can be punished. The punishments in question were a ticket, a small fine, or very short jail terms. The court found none of these to be cruel and unusual. In fact, these are commonly used punishments across the country. The other side argued that these punishments were cruel and unusual as applied to the homeless. But the majority opinion maintained that the Eighth Amendment regulates types of punishment, not who can be punished.
The court specifically found that the Ninth Circuit inappropriately limited local governments’ tools for tackling the homelessness issue. In so doing, the court recognized that homelessness is a multifaceted problem not suited to a single policy. The opinion emphasized that decisions on how to address homelessness should be left to community leaders, not judges:
“Homelessness is complex. Its causes are many. So may be the public policy responses required to address it. At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not.” Johnson, 603 US ___ at 34 (2024).The opinion quoted extensively from the League of Oregon Cities’ amicus brief, highlighting Oregon’s specific concerns. Our local concerns were heard by the Supreme Court, thanks to the collective efforts of government officials throughout the western states (even throughout the nation) contributing their voices and resources through amicus briefs that told real stories of the struggle to address homelessness under a one size fits all approach mandated by the Ninth Circuit.
The court observed the historical tradition of communities working hard to solve difficult social issues, then stated:
“If the multitude of amicus briefs before us proves one thing, it is that the American people are still at it.” Johnson, 603 US ___ at 34 (2024).
The Supreme Court concluded by stating that the Ninth Circuit opinion in Johnson was reversed, and the Eighth Amendment does not prevent local officials from crafting unique solutions to homelessness. (...)
One thing we know for certain, with Johnson v. Grants Pass now overturned by the U.S. Supreme Court, local control has returned. Community leaders are no longer in danger of being sued for the “cruel and unusual punishment” of requiring everyone to abide by camping regulations.
by Kirk Mylander, League of Oregon Cities | Read more:
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[ed. Just got back from Honolulu, my old home town. One thing I noticed right away, coming from the airport, was that there weren't any homeless encampments, which in previous years had exploded all over the city. The next day I saw police actively clearing one site down the street that had sprung up just the previous night - they were right on it. So I asked one of my friends where everyone had gone to and he said Waianae, a small rural community pretty far removed from town on the northwest coast of Oahu. Sounded good to me (maybe not to Waianaeans), but I wondered how the city had figured out how to be more proactive in addressing a problem that had seemed so intractable for years. I'm not sure, but it might have had something to do with this ruling, which I'd never heard of before (thanks, major media). See also: What Happened To SF Homelessness? (ACX)]
