After Grants Pass ruling, will cities make public spaces safe for the public again?
Congratulations to the city of Grants Pass, Oregon, for having the clarity and courage to appeal to the U.S. Supreme Court to challenge the Ninth Circuit’s unreasonable reading of the Eighth Amendment. It is now the law of the land that cities may enforce generally applicable laws against public camping, because this is not a violation of the Constitution’s ban on “cruel and unusual punishment.”
If only Los Angeles had done this, we might have been spared nearly two decades of having sprawling and dangerous tent encampments on streets, sidewalks, freeway embankments, median strips, parks, beaches and public plazas.
In 2003, L.A. was sued by the American Civil Liberties Union for enforcing Section 41.18(d) of the city’s municipal code, which banned sitting, lying or sleeping on the sidewalk unless waiting for a parade. The case was known as Jones v. City of Los Angeles. In 2006, the Ninth Circuit ruled against the city, but instead of appealing to the U.S. Supreme Court as Grants Pass did, Los Angeles settled the case in October 2007.
The Jones settlement required the city to stop enforcing the ban on sleeping on the sidewalk everywhere in Los Angeles between the hours of 9 p.m. and 6 a.m. until 1,250 additional units of housing for the chronically homeless were constructed, half in the Skid Row area. In return, the Ninth Circuit’s ruling would not be a binding precedent in future cases.
But the Ninth Circuit got around that restriction by repeating the same reasoning in a completely separate case, Martin v. Boise, in 2018. In that decision, the judges held that it was a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment to enforce an anti-camping ordinance unless adequate shelter beds were available.
That vague standard led to cities being sued or threatened with lawsuits over any attempt to return public spaces to their intended use.
Now, with the decision in Grants Pass v. Johnson, Martin v. Boise is overruled. The court held that the people of the United States have the right to work out the best solutions to the challenging problem. “The Constitution’s Eighth Amendment serves many important functions,” wrote Justice Neil Gorsuch for the court, “but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy.”
This is very good news for everyone who is tired of hearing elected officials insist that nothing can be done about tent and RV encampments except raising taxes to build $600,000 studio apartments in every neighborhood.
Cities now may enforce basic health and safety laws including a ban on public camping. But will they? L.A. County Supervisor Lindsey Horvath was quick to say on social media, “the criminalization of homelessness is dangerous, does not work, and will not stand in L.A. County.”
The court said “nothing in today’s decision prevents States, cities, and counties from going a step further and declining to criminalize public camping altogether.” Is Horvath planning to introduce that motion at the next Board of Supervisors meeting?
The Grants Pass decision has removed the basis for all the federal lawsuits that have blocked cities from enforcing the camping bans that are on the books. It has lifted the duress under which local governments have settled lawsuits and then spent countless millions or billions of dollars to meet the terms of the settlements.
Now we could see an entirely different type of lawsuit, possibly demanding enforcement of laws against dumping raw sewage into storm drains that flow to the ocean, or removal of obstructions on sidewalks that violate the Americans with Disabilities Act. That might be one way to force local governments to end their tolerance of RV and tent encampments.
We’ll see what happens to the previous settlements currently being overseen by the courts. Perhaps local governments can get out of them and take control of decision-making. Finally, elected officials have the power to do something, and if you don’t like what they do, you can vote for people who will have the power to do something else.
And for that, we can thank the city of Grants Pass, Oregon, and the United States Supreme Court.
Write Susan@SusanShelley.com and follow her on Twitter @Susan_Shelley