Susan Shelley: How will the U.S. Supreme Court handle Grants Pass v. Johnson?

Last Monday, the question of when and if cities may enforce an anti-camping ordinance finally came before the U.S. Supreme Court.

It has been a long wait.

The smallest details of homelessness policy in California and other western states have been under the control of the Ninth Circuit Court of Appeals since April 2006, when the American Civil Liberties Union won a lawsuit against the city of Los Angeles. The decision in Jones v. Los Angeles was “historic,” the ACLU said, and “ends the criminalization of homelessness.”

“The Eighth Amendment prohibits the city from punishing involuntary sitting, lying or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter in the city of Los Angeles,” wrote Judge Kim M. Wardlaw, as she halted enforcement of the L.A. ordinance.

The city could have appealed the ruling to the U.S. Supreme Court in 2006, but instead chose to settle with the ACLU. Los Angeles agreed to allow overnight camping on the sidewalks anywhere in the city until 1,250 units of housing were built for the chronically homeless, and in exchange, the Ninth Circuit’s decision in the case would be vacated and would not be a precedent in the future.

Here’s how that worked out: L.A. built the required housing but never resumed enforcement, and the Ninth Circuit issued a ruling in 2018 that repeated all the reasoning from the Jones case, essentially making it a precedent anyway.

That case was Martin v. Boise. A three-judge panel of the Ninth Circuit held that cities could not enforce an anti-camping ordinance unless they had sufficient shelter beds available for everyone.

The city of Boise petitioned for rehearing by the full court, but in April 2019, the petition was denied. Dissenting from the denial, Judge Milan Smith wrote that the ruling by the three-judge panel “badly misconstrued” Supreme Court precedent, had already “begun wreaking havoc on local governments, residents and businesses throughout our circuit” and “shackles the hands of public officials trying to redress the serious societal concern of homelessness.” Judge Smith even included a photograph of Los Angeles, showing tent encampments on the sidewalks. Five other judges on the appeals court joined his dissent.

Boise appealed to the U.S. Supreme Court, but in December 2019 the justices declined to hear the case.

You’ve seen what happened after that. Encampments proliferated, tens of billions of public dollars were spent and the problem of homelessness only grew worse. Meanwhile, cities were sued again and again for trying to enforce basic health and safety laws.

One of those cities was Grants Pass, Oregon. The town tried to enforce an anti-camping ordinance and was stopped by a U.S. district court and then by a (divided) panel of the Ninth Circuit. Grants Pass appealed to the Supreme Court. In January, the justices agreed to hear the case and decide this question: “Does the enforcement of generally applicable laws regulating camping on public property constitute ‘cruel and unusual punishment’ prohibited by the Eighth Amendment?”

At the root of the conflict is the 1962 Supreme Court decision in Robinson v. California. In that case, the justices said a law that made it a crime to be a drug addict, even if the person was not using drugs at the time of arrest, was an unconstitutional violation of the Eighth Amendment’s ban on ‘cruel and unusual punishment’ because it punished someone’s status, not their conduct.

The landmark Robinson case was also the first time the court said the “cruel and unusual punishment” clause of the Eighth Amendment applied to the states, instead of exclusively to the federal government.

“You are not asking us to overturn Robinson, correct?” Justice Sonia Sotomayor asked the attorney for Grants Pass during Monday’s arguments. The attorney responded that it was their position that “Robinson was wrongly decided and should not be extended,” but that the Court did not need to overrule it to decide this case.

Much of the argument on Monday was a dispute over the difference between status and conduct, and whether homelessness was a status, like being a drug addict, or conduct, like using drugs. Was the city criminalizing a status when it prohibited the conduct of camping in a park?

There was also an extended dispute over the definition of available shelter. Is there an Eighth Amendment right to a shelter bed within the city limits? Is there an Eighth Amendment right to a shelter that will accept a Rottweiler?

That’s a question that has been raised often by dissenting justices over the last hundred years as the court gradually asserted control over state and local policy decisions by applying the Bill of Rights, piece by piece, to the states. The justices did this by declaring certain rights to be so “fundamental” to liberty that they are guaranteed by the Fourteenth Amendment, which says the states may not “deprive any person of life, liberty or property, without due process of law.”

Having decided that a right is “fundamental,” the court then made case-by-case decisions on whether a state or local jurisdiction had a “compelling” reason to infringe the “fundamental” right, and whether the law was “narrowly tailored” to accomplish a permissible purpose.

This is how the federal courts got into the business of superintending the smallest details of state and local policy on homelessness and countless other issues.

Now we’ll see if they can get out of it.

Write Susan@SusanShelley.com and follow her on Twitter @Susan_Shelley