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Supreme Court seems split over city homeless regulations

Should a city be able to enforce civil or criminal restrictions on homeless people who sleep or camp on public property? That was the question before the United States Supreme Court on Monday, as justices heard arguments in the case of the City of Grants Pass vs. Johnson.

The case has the potential to reshape any municipality's ability to adopt laws that would prevent homeless camping, especially in areas where there are beds available in nearby shelters.

At issue Monday was a law passed by Grants Pass, Oregon, that prevented camping or sleeping on public property or in city parks. Camping was defined as any place where bedding, sleeping bags, or any stove or fire is placed.

The Ninth Circuit

The Ninth Circuit, which covers nine states including Washington, Idaho, Oregon and Montana, ruled against Grants Pass, again limiting what cities in those states can do to prevent homeless encampments. In 2019, the court declined to hear Boise vs. Martin, another case that dealt with the issue.

In Grants Pass, Justices grappled with whether preventing camping on public property constitutes cruel and unusual punishment prohibited by the Eighth Amendment. In addition, is homelessness a status or an action? The distinction is important, because court precedent has said the government may not make it a crime simply to be something. Sleeping, some have contended, is a necessity and therefore cannot be regulated via a camping ordinance.

The argument went sideways at several points:

"Suppose the city decided it was going to execute homeless people," Justice Jackson posited.
Justice Sotomayor later asked, "if homeless people aren't allowed to sleep anywhere, are they supposed to just kill themselves?"

Putting the hyperbole aside, if a city cannot prevent sleeping in a public park because sleeping is a necessity of life, what else could be considered a necessity? Can cities prevent public urination or defecation? What about criminalizing lighting a fire to stay warm? Justices asked if someone could steal food, simply because eating it is a necessity of life. The policy questions are endless.

It took a while for justices to actually reach one of the most important parts of the case - whether cities have alternatives and whether homeless citizens are even willing to use those alternatives.

JUSTICE GORSUCH: It's an Eighth Amendment violation to require people to access

available beds in the jurisdiction in which they live because of their mental health problems?

MR. KNEEDLER: If -- if going there would -- would --

JUSTICE GORSUCH: How about if they have a substance abuse problem and they can't use those substances in the shelter? Is that an Eighth Amendment --

MR. KNEEDLER: That is -- that is not a -- that is not a sufficient --

JUSTICE GORSUCH: Why? Why? They're addicted to drugs, they cannot use them in the shelter. That's one of the rules.

MR. KNEEDLER: Well, if they -- if they -- if it's the shelter's rule, then they have no -- they -- they -- they can't go there if they're -- if they're addicted. That's not -- that's not --

JUSTICE GORSUCH: So that's an Eighth -- that's an Eighth Amendment violation?

MR. KNEEDLER: Well, no, the -- the -- the Eighth Amendment violation is prohibiting

sleeping outside because the only shelter that is available --

JUSTICE GORSUCH: Is not really available to that person?

MR. KNEEDLER: -- won't take them -- won't take them, yes. And that's an individualized determination.

JUSTICE GORSUCH: Same thing with the alcoholic?


JUSTICE GORSUCH: Okay. So the alcoholic has an Eighth Amendment right to sleep outside even though there's a bed available?

MR. KNEEDLER: If -- if the only shelter in town won't take him, then I think he's in exactly -- he's in the same -- he's in the same condition. And there can be all sorts of reasons, and the City doesn't want normally

JUSTICE GORSUCH: And judges across the country are now going to superintend this

under the Eighth Amendment?

One thing the court seemed to agree on is that the issue of homeless policy is probably not best decided by judges, but rather local elected officials. This likely means an overturning of the Ninth Circuit's decision, but the ruling could be narrow.

The more broad solution to this problem will not be found in the courts, but rather housing policy and the regulations that prevent an expansion in affordable housing.

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