Supreme Court Upholds Criminal Ban Against Homeless Public Camping
Written by Chriss W. Street
The Supreme Court in a Constitutional challenge ruled 6-3 along ideological lines that it
is not “cruel and unusual punishment” for local government to criminalize homeless
camping on public property, including parks, sidewalks and government buildings.
The decision interrupted a relentless forty-eight-year expansion of the Eighth
Amendment’s ban against inflicting “cruel and unusual punishments”, that began with
limiting Georgia capital punishment verdicts against minorities and blossomed to a
California ruling that it was “cruel and unusual” to enforce laws against drug users
sleeping on public streets when the local homeless shelters prohibited drug use.
The picturesque southwestern Oregon town of Grants’ Pass since 2003 grew rapidly
from 23,000 to 38,000 residents. But after Oregon voters in 2020 passed Measure 110
as the first-in-the-nation decriminalization of personal possession of heroin, cocaine and
fentanyl, Grants Pass homelessness exploded to over 600. Entitled homeless began
openly using drugs in public, and camping on sidewalks and parks.
Grants Pass enforced its 2012 Municipal Code §§ 5.61.030 and 6.46.090 that prohibit
activities such as camping on public property or parking overnight in the city’s parks.
Violators were fined $295, with the fine increasing to $537.60 if it is not paid. After
receiving two citations, Grants Pass police could issue an order banning individuals
from city property. Anyone who violated such an order could be convicted on criminal
trespass charges that carry penalties of up to 30 days in jail and another $1,250 fine.
Homeless advocates filed a class action on behalf of all homeless people living in the
city and obtained an injunction prohibiting Grants Pass from enforcing its laws against
the homeless. The case wound through the courts until a federal District Court judge
applied the 2019 Martin v. City of Boise precedent to rule that everyone living in Grants
Pass without shelter was “involuntarily homeless” because the total homeless
population outnumbered its “practically available” shelter beds to house them.
The Supreme Court ruled Friday in City of Grants Pass v. Johnson, U.S., No. 23-175
that it is constitutional for local government to criminalize sleeping on public property,
even if there was no alternative place offered by the city for the person to go to sleep.
The court implicitly accepted the broad Oregon Statute 131.705 that defines “Public
property” as “public lands, premises and buildings, including but not limited to any
building used in connection with the transaction of public business or any lands,
premises or buildings owned or leased by this state or any political subdivision therein.”
Justice Neil Gorsuch in writing for the majority, contended that the Eighth Amendment,
which bans cruel and unusual punishment, “serves many important functions, but it
does not authorize federal judges” to “dictate this Nation’s homelessness policy.”
Justice Gorsuch suggested that task should be reserved for the American people.
Justice Sonia Sotomayor writing in dissent for the liberal Justices Elena Kagan and
Ketanji Brown Jackson, argued that the majority’s ruling “focuses almost exclusively on
the needs of local government and leaves the most vulnerable in our society with an
impossible choice: Either stay awake or be arrested.”
The decision will have broad national consequences, but will be especially significant for
California where over a third of the 600,000 homeless live. According to California’s
Legislative Analyst’s Office, Gov. Gavin Newsom has allocated an unprecedented $24
billion to state address homelessness and housing during the last five fiscal years.
The LAO reported that state agencies administer more than 30 programs aimed at
preventing or reducing homelessness. Some programs did such a poor job tracking
outcomes that it is impossible quantify the financial effectiveness of programs.
Only two of Governor Newsom’s five highly touted state homelessness programs
audited by the LAO were judge as even “likely” cost-effective:
1) $736 million Homekey program that supports cities and counties converting
hotels and other buildings into homeless housing that costs an average of
$144,000 per unit, was rated as comparing positively to the $380,000-$570,000 it
would cost to construct new homeless units.
2) $380 million CalWorks Housing Support Program that provides families who are
homeless or at risk of becoming homeless an average of $12,000-$22,000 per
household, was rated cost-effective versus the $50,000 annual California
spending on each chronically homeless person.
Gov. Gavin Newsom claimed the Supreme Court ruling was a victory because it will
leave it up to local jurisdictions to have the final say on what to do with enforcement. An
official release from Newsom’s office stated: “This decision removes the legal
ambiguities that have tied the hands of local officials for years and limited their ability to
deliver on common-sense measures to protect the safety and well-being of our
communities.”
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City of Grants Pass Municipal Codes
MC 5.61.030 Camping Prohibited
No person may occupy a campsite in or upon any sidewalk, street, alley, lane,
public right of way, park, bench, or any other publicly-owned property or under
any bridge or viaduct, unless (i) otherwise specifically authorized by this Code,
(ii) by a formal declaration of the City Manager in emergency circumstances, or
(iii) upon Council resolution, the Council may exempt a special event from the
prohibitions of this section, if the Council finds such exemption to be in the public
interest and consistent with Council goals and notices and in accordance with
conditions imposed by the Community Services Director. Any conditions imposed
will include a condition requiring that the applicant provide evidence of adequate
insurance coverage and agree to indemnify the City for any liability, damage or
expense incurred by the City as a result of activities of the applicant. Any findings
by the Council shall specify the exact dates and location covered by the
exemption.
MC 6.46.090 Camping in Parks
A. It is unlawful for any person to camp, as defined in GPMC Title 5 within the
boundaries of the City parks. (Ord. 19-5752, 2019)
B. Overnight parking of vehicles shall be unlawful. For the purposes of this
section, anyone who parks or leaves a vehicle parked for two consecutive hours
or who remains within one of the parks as herein defined for purposes of
camping as defined in this section for two consecutive hours, without permission
from the City Council, between the hours of midnight and 6:00 a.m. shall be
considered in violation of this Chapter.